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Voters could decide on Big Box regs

Voters registered in the town of Pagosa Springs might be given the opportunity to vote on large-format retail (Big Box) regulations in the town’s Land Use and Development Code (LUDC), following a decision by town council during Tuesday night’s meeting.

The decision came after an executive session during which council sought the advice of Town Attorney Bob Cole regarding a recent lawsuit filed against the town. After the executive session, Mayor Ross Aragon said, “Because of ongoing litigation, there will be no public comment or discussion.”

The lawsuit was filed last month by local residents Matt Roane, Ann Bubb and Jaime and Mat deGraaf due to the plaintiffs being blocked by the town in an attempt to file a petition for referendum. Attempting to repeal Ordinance 743 (which redacted Section 2.4.5 of the LUDC, the section regulating Big Box development), the lawsuit alleged that town staff had not followed its own procedures regarding noticing ordinances and had failed to provide the plaintiffs adequate recourse for making the issue a matter for referendum.

Following Aragon’s statement at Tuesday’s meeting, council member Jerry Jackson presented a motion, saying, “I move to direct the town’s attorney to work with Mr. Roane to dismiss litigation on the condition the town allows a referendum petition on Ordinance 743 to proceed.”

Although details of the case have not been settled as of press time, an agreement between the town and the plaintiffs would repeal Ordinance 743 and allow a petition for referendum to proceed — potentially allowing Pagosa Springs voters to decide if they want to retain Section 2.4.5 of the LUDC — if the referendum petition is certified.

After council passed the first reading of the ordinance at its July 23 meeting, the ordinance was published as a public notice in the July 30 edition of The SUN stating that a full text of the ordinance would be available at the office of the Town Clerk. The second reading of Ordinance 743 — repealing Section 2.4.5 of the LUDC — was heard at the Aug. 20 council meeting and was passed.

However, while the second reading of the ordinance was noticed in the Sept. 3 edition of The SUN, that notice did not include any language indicating that the full text of the ordinance would be available with the town clerk, in apparent violation of the town’s Home Rule Charter.

Section 3.9(a) of the Town’s Home Rule Charter states, “(T)he full text of the ordinance, including any amendments, shall be available for public inspection at the office of the Town Clerk,” and states that the publication of that ordinance (and notice of the availability of the full text of the ordinance) “shall be published at least ten (10) days prior to each council meeting at which it will be considered on second reading.”

In the Oct. 19 brief filed with the Archuleta County District Court, the complaint stated that, “Plaintiffs are now in great doubt as to their rights to pursue a referendum action in Pagosa Springs pursuant to the authority embodied in the Home Rule Charter.”

At issue were procedural matters regarding how the second reading of the ordinance was publicly noticed, whether the town clerk made the original ordinance available for public inspection (between first and second readings) and whether town staff correctly interpreted stipulations for filing a petition for referendum to dispute the ordinance.

According to Roane’s complaint, “On August 17, 2009, Plaintiff Roane visited the office of the Town Clerk and asked to see the text of the Ordinance,” and adds, “(t)he office of the Town Clerk informed Plaintiff Roane that a copy of the Ordinance was not yet available and would not become available until after the Town Council officially adopted the Ordinance following a second reading.”

Roane went on to say in the complaint that he and Bubb had filed a Notice of Intent to Circulate Referendum Petition with the town clerk on Sept. 15, within the deadline allowed by the charter. On Sept. 16, however, the town clerk rejected that notice, citing that neither Roane nor Bubb were registered voters in the town.

While Section 5.2(A) of the Town Charter says, “The registered electors may require an adopted ordinance to be referred to them at an election in accordance with the referendum power reserved by Article V, Section 1(9) of the State Constitution,” (implying that only residents registered to vote in the town can file a Notice of Intent to Circulate Referendum Petition), the Constitutional Article cited in the section is not completely clear. Article V, Section 1(II)(9) of the Colorado State Constitution says, in part, that, “(R)eferendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality,” adding that, “municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation,” the phrase, “the registered electors of every city, town, and municipality,” implies that any registered Colorado voter can initiate a referendum anywhere in the state.

Furthermore, the town’s charter remains vague as to exactly who can initiate the referendum process. Despite the language in 5.2(A), the charter states in Section 5.3 that, “Any person seeking a referendum on an enacted ordinance shall submit to the Town Clerk a written notice of intent to circulate a referendum petition within thirteen (13) days after publication following final passage of the ordinance,” and the section leaves open the question of just who “any person” might be.

The complaint also stated that, on Oct. 5, town residents Jaime and Mat deGraaf filed a Notice of Intent to Circulate Referendum Petition with the town clerk; on Oct. 7, that petition was also rejected, on the premise that the notice was filed outside of the 13-day window stipulated in the Town Charter.

Essentially, the lawsuit was predicated on several missteps made by town staff and ambiguities in the town’s Home Rule Charter as well as the Colorado Constitution. If the second reading of the ordinance was not properly noticed (and thus, would remain ineffective until it has been properly noticed), the deGraaf’s petition continued to be within the timeline allowed by town charter since the petition timeline is premised on the ordinance being properly noticed — which, the lawsuit alleges, did not happen. Furthermore, since Town Charter does not specify who “any person” is, Roane and Bubb’s petition would likewise have been valid.

While Roane’s lawsuit was meant to put the matter of Ordinance 743 to the voters, the complaint also highlighted examples of vague language in the town charter, language that, if council chooses to clarify at some point in the future, would have to go to the voters.

If the town and the plaintiffs reach an agreement such that the lawsuit is dropped and the referendum petition is allowed to proceed, the plaintiffs will have 90 days to collect the signatures of 10 percent of the town’s electorate — about 83 signatures. If enough signatures are collected and those signatures have been certified, the town would put the matter on the ballot in April (when three council seats will be up for grabs, along with the mayor’s seat).

Regarding council’s decision, Roane said, “I’m very pleased to hear that they (council) want to resolve this as opposed to continuing with legal action.”

“It’s not a fight for or against the future of Big Box stores,” added Mat deGraaf. “We just want the people to decide the future of Pagosa Springs.”

If, after the election, the voters decide to reject Ordinance 743 and retain big box regulations in the LUDC, the new ordinance would stand for two years, with council unable to reinstate the ordinance. However, while council approved the petition process, it did not vote to void Ordinance 743 and, as such, that ordinance continues to stand until overturned by voters.

However, while the town maintains that the ordinance was properly noticed (despite language in the Town Charter), another lawsuit could potentially void the ordinance. Given those questions, it will be interesting to see if the town ever properly (and legally) notices Ordinance 743 before a potential election.

Most interesting, however, will be if the voters support the decision made by council in August or if they see a need for some Big Box regulation.