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| Confusing the Big Box Issue, Part Three |
| Bill Hudson | 3/10/10 |
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| Back to the News Summaries |
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Read Part One
“We have got rules in place that are designed to prevent a lot of this confusion at the last minute — which is where we are: at the last minute — and then we have these very real potential conflicts that can arise [from having these two referendums on the same ballot.] And if these [conflicts] haven’t been brought to your attention and resolved already, how can we move forward today in the hopes that we can resolve them?”
Yesterday morning, attorney Matt Roane sat at a table across from the Pagosa Springs Town Council in a nearly empty Council Chambers, and explained why he felt the Council was — legally, according to its own Charter — too late in trying to place another referendum on the April ballot.
I had the privilege, yesterday at Town Hall, of listening to one of the more frank and honest public discussions I’ve heard in my five years of writing for the Daily Post.
Roane is one of the main proponents behind Referendum A, the ballot measure that will allow Town voters to express their opinions, in a clearly enumerated fashion, about their preferences concerning Big Box development here in Pagosa Springs. The basic question posed by the ballot proposition is, "Should the Town repeal its Big Box regulations contained in Section 2.4.5 of the Land Use and Development Code — in the implied hope that such a repeal will help attract a Big Box store someday?"
That referendum — the first such citizen-driven referendum to hit the ballot since the passage of the Home Rule Charter in 2002 — is in response to an attempt by the Town Council, last August, to repeal almost all the “large retail development” regulations contained in the Town’s Land Use and Development Code (LUDC).
 This situation has placed Matt Roane and the Council in a manifestly adversarial relationship, since the attorney and his fellow activists have turned to the ballot, and the voters of Pagosa Springs, to overturn a decision made by the Town Council.
And the fact that Roane used a threatened law suit to help place the referendum on the ballot — after the Town tried to reject his group’s petition request — helped to darken that relationship, no doubt.
The adversarial relationship was not lessened by Roane’s suggestions, at last week’s Council meeting, that the Council had failed to follow the Home Rule Charter while attempting to place another — possibly confusing — referendum on the Town’s April 6 ballot alongside Referendum A. That second referendum, aptly though perhaps unimaginatively named Referendum B, would have the voters to offer their judgment on yet another set of LUDC “large retail” rules not included in Referendum A.
The Council had before them two — yes, two — proposed ordinances aimed at placing Referendum B before the voters. The two ordinances contained almost exactly the same wording.
In Roane's view, they were basically two attempts at avoiding Home Rule Charter rules.
One version on yesterday's agenda was the “second reading” of Ordinance 751, passed on the first reading in February. Roane had warned the Council that the first reading had been conducted improperly, and thus no proper second reading could then take place at yesterday's meeting. At least, that was his opinion.
As a legal maneuver, to deal with the possibility that Roane was in fact correct in his interpretation, the Town’s attorney, Bob Cole of Denver law firm Collins Cockrel & Cole, had advised the Town to also approve an “Emergency Ordinance” version of the Referendum B proposal.
According to the Town Charter, an “Emergency Ordinance” may be passed with a single reading — but only in cases of emergency, when “immediately necessary for the preservation of public peace, health, or safety.” Roane yesterday made it quite clear he couldn’t accept the interpretation that the same LUDC changes he’d himself recommended the Council consider last summer, were now, suddenly — just weeks before an election — an emergency situation.
And everyone in the room also knew this was not an emergency; we knew the “Emergency Ordinance” approach was merely a legal maneuver to try and defeat the Town’s own Charter language.
Roane was also clear he could not accept a faulty second reading, which violated the Town Charter in its own way.
The Council now had to consider the situation carefully. Their purpose for wanting to repeal the Big Box regulations last summer was purportedly to show businesses — especially Big Box retailers — that Pagosa Springs is “business friendly.”
“Locate your new business here,” the Council would like announce to the world, “and the Town Council will bend over backwards to make it easy on you.”
But passing “business friendly” ordinances — or placing referendums on the ballot — would do the Town Council little good, if those measures then got tied up in court for months or years. And Roane had already demonstrated that he was willing to take the Council to court, if he felt they were failing to follow their own Charter.
What the Town Council needed — ideally — were business-friendly measures clearly supported by the majority of Town residents. And that was something Roane said he, too, was willing to accept.
Let the people speak. Make the issue clear and uncluttered. Avoid law suits.
Considering the adversarial energy in the room yesterday, the discussion was remarkably respectful — and frank — on both sides of the table.
Council member Jerry Jackson set the tone for that frank discussion.
“I have to really level with you here," he said, addressing Roane. "You refer to political gamesmanship. And I’m highly suspect of legal gamesmanship. It’s my opinion that you could be representing a group — or yourself — that, no matter what we do, there are going to be legal efforts to delay this.
“And I think it’s real sad that one person, or one group, through legal gamesmanship, could prohibit the citizens from having the opportunity to truly vote on something — whether they want it or not.
“So, I do understand that you have some valid points. I’ll give you that. But my suspicion is that no matter what we do, you’re going to be back in front of us.”
Jackson was correct in implying that the group of citizens who had placed Referendum A onto the ballot were an even smaller group than the six Council members who had voted, during a one-hour discussion last August, to repeal the Town’s Big Box rules — rules that had taken over two years of discussion and negotiation to craft.
Starting from Jackson’s rather frank exposition of what I took to be the Council’s general position, the discussion between Roane and the Council — about the legal issues posed by the “Emergency Ordinance” approach, and the potential problems posed by the proposed Referendum B — continued for another hour before Jackson finally withdrew his original motion to pass the “Emergency” ordinance.
Much of that discussion was an attempt, by Roane, to assure the Council that they had better ways of fixing the LUDC’s potentially conflicting Big Box rules — through Council ordinances rather than through the ballot box — and that he, himself, would be willing to volunteer his time helping the Council repair those mismatched rules.
On the other side of the table, the Council was trying to get assurances from Roane that — if they should agree to abandon Referendum B and allow Referendum A to stand alone on the ballot — then Roane and his supporters would accept the opinion expressed by the voters, even if that opinion fell on the side of allowing unregulated Big Box stores within the Town.
About halfway through the discussion, mayor Ross Aragon — who had remained silent up until that point — surprised the hell out of me, and perhaps other people in the room as well, by indicating that he did not support placing two referendums on the ballot.
Read Part Four... |
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