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election decision.20071029 DECISION OF HEARING OFFICER IN THE MATTER OF THE PROTESTS TO INITIATIVE PETITIONS FILED WITH THE CITY CLERK OF THE CITY OF ASPEN, COLORADO, REGARDING THE ENTRANCE TO ASPEN — MODIFIED DIRECT CONNECTION AND THE ENTRANCE TO ASPEN — DIRECT CONNECTION INTRODUCTION Two protests were filed on October 10, 2007, by Les Hoist, Clifford Weiss, and Terry Paulson ( "Protestors ") in the office of the City Clerk, City of Aspen, Colorado. The protests were to two initiative petitions submitted by Jeffrey Evans and Curtis Vagneur ( "Petitioners ") regarding the entrance to Aspen. One petition concerned a modified direct connection and a second petition concerned a direct connection. The specific issues contained in the protests were: 1) the initiative petition included administrative matters not subject to the initiative power; 2) more than one subject was included in the petitions; and 3) the ballot title was misleading. Additionally, Petitioners argued that the protests were deficient because they were not filed under oath and therefore, the hearing officer had no jurisdiction to rule on the protests. The protests were timely filed in accordance with the provisions of 31- 11- 110(1), Colorado Revised Statutes. The hearing on this matter was held before Karen Goldman, Administrative Hearing Office for the City of Aspen in the City Council Chambers on October 22, 2007. Protestors were represented by Herbert S. Klein, Lance C. Cote, and Corey T. Zurbach of Klein, Cote, & Edwards, LLC. Petitioners were represented by Jeffrey Evans. The administrative hearing officer issues this decision pursuant to 31 -11- 110(1), Colorado Revised Statutes. • FACTUAL BACKGROUND 1. Matt Lowry is a member of the firm Klein, Cote & Edwards LLC, representing the Protestors. 2. Mr. Lowry stated he attempted to obtain copies of 1989 and 1995 draft environmental impact (EIS) documents regarding the entrance to Aspen. Among the places he researched were the Colorado Department of Transportation (CDOT) website, the City of Aspen, the Pitkin County library, and the Glenwood Springs office of the Colorado Department of Transportation. 3. Mr. Lowry stated he found nothing on the website, more than one copy at the Glenwood Springs CDOT office, and one copy at the library. He stated that, in general, multiple copies for public use were not available. ■•■•■ID 4. Randy Ready is Assistant City Manager for the City of Aspen. He has worked for the City since 1993. 5. Mr. Ready became Assistant City Manager in 1996. His previous position was Director of Parking and Transportation. 6. Mr. Ready stated that the Aspen City Charter requires that any change to the Municipal Code be done by use of an ordinance. A resolution is used by the City Council to enter into contracts, lease agreements and to issue a statement for or against any matters before them. 7. Mr. Ready stated that the role of the Aspen City Manager is to oversee twenty (20) administrative departments and to manage all administrative functions as provided for in the City Charter. 8. Mr. Ready said that he served as the City of Aspen liaison on the EIS process for the entrance to Aspen. He stated the EIS effort began in January, 1994 and resulted in four (4) documents having been created in a period of five (5) years, culminating in an FEIS (final document) which was released in June, 2007. He stated a multi - disciplinary approach, involving persons with expertise in a variety of technical areas, was used to create the EIS. This included seven (7) to eight (8) staff from the City of Aspen and four (4) staff from Pitkin County. 9. Mr. Ready said the creation of the EIS was an administrative process. 10. The analysis involved looking at the following four (4) components for all alternatives proposed: lane size; profile or grade; mode, including HOV, bus lanes, light rail, etc.; and alignment. Additionally, each alternative was judged by the following: "reality check" or was the alternative feasible; fatal flaw analysis or did the alternative meet the project objectives; comparative analysis or how did the alternative compare to all other alternatives. 11. Mr. Ready said that Alternative D was rejected at the DEIS (draft) stage using the comparative analysis test. The alternative also did not meet project objectives including safety. 12. Mr. Ready stated that the Federal Highway Administration (FHA), the Colorado Department of Transportation (CDOT) and the City of Aspen agreed that the approved design for the entrance to Aspen should be two (2) general purpose lanes for vehicular traffic and a corridor for light rail or bus lanes. It would be a modified direct alignment and include a cut and cover tunnel. The tunnel would allow the road to be built below grade and then covered to preserve open space and to provide pedestrian access and a wildlife crossing, as required by federal law. 13. Mr. Ready stated that Resolution No. 61, Series of 1998, authorized the City of Aspen to enter into a memorandum of understanding (MOU) with the FHA and CDOT regarding the FEIS and for the City Manager to execute agreements. He said the resolution was an administrative matter. 14. Mr. Ready said the major points of the MOU were to spell out intent and what needs to take place while construction is occurring. 15. Mr. Ready stated that the MOU constitutes a contract among the parties that may only be amended upon written approval of the parties. He said that the amendment provision was still in effect. 16. Mr. Ready said that Resolution No. 34, Series of 2002, conveyed a right - of -way (ROW) easement to CDOT for construction, operation, and maintenance of a two -lane parkway and a corridor for light rail over City - owned property. He further stated this was an administrative matter. 17. Mr. Ready stated the Aspen City Charter, Section 13.4, requires a vote of the registered electors in order to sell, exchange or dispose of public buildings, utilities or real property, including real property acquired for open space. He further stated that the City Charter open space cannot be sold, exchanged, disposed of or converted to uses other than for recreational, agricultural or easement purposes unless it is replaced with other open space of equal or greater value as determined by a resolution of the City Council. He said that any attempt to change the use of open space would require both a public vote and an easement change by the City Council by resolution. 18. Mr. Ready said that the City Council granted 8.6 acres of open space to CDOT in exchange for 31 acres of open space. He said that CDOT has already used some of the open space granted to it for designated purposes. 19. Mr. Ready said that the elements contained within the initiative petition would create a new, hybrid alternative to the preferred alternative. 20. Mr. Ready stated that changes to the elements of the preferred alternative would impact decisions already made, would impact the elements of the MOU, and that several items would have to be re- evaluated. He said that Alternative D had not gone through the complete administrative review process and could not be legally implemented unless certain steps were taken. These included: creating a new EIS; becoming the new preferred alternative by being deemed superior to all other alternatives; placing a ballot question before the voters regarding the use of open space; obtaining a funding source for construction; meeting federal requirements and obtaining the approval of the FHA, modification of the MOU and ROW agreement. He stated that the current preferred alternative qualifies for funding while Alternative D does not. 21. Mr. Ready stated that when a policy is changed or a new policy is put in place, it may require changes in subsequent administrative actions. 22. Bud Eylar is a former Pitkin County employee. He worked for the County from 1982 to 2006 as public works director and county engineer. He is a licensed civil engineer. 23. He participated in the entrance to Aspen DEIS process as a representative of Pitkin County and was part of the committee that reviewed the documents. 24. In the 1980's, after the County passed a use tax for county road projects, including work on Highway 82, Mr. Eylar said he was the administrator of the process. 25. Mr. Eylar stated that as part of the entrance to Aspen DEIS process, the committee looked at fifteen (15) to twenty (20) alternatives. The County was concerned with whether the traffic worked well, whether there would be any back -ups, and how well people would be moved in and out of Aspen. 26. Mr. Eylar said that safety is the first thing considered when looking at a { possible traffic route. Additional factors included environmental impacts, sound, noise and light, and costs of the project. 27. Mr. Eylar stated that, as an engineer, he wanted the ability to be able to design a traffic route to safety standards. He stated that several elements of the initiative petition would restrict or eliminate that ability. 28. Mr. Eylar specifically identified the following issues: a. Item 7 as a whole impinges on the methods engineers would bring to the process. b. Item 7a. might not meet appropriate safety standards c. Item 7d. contained language open to interpretation and would dictate an administrative outcome d. Item 7e. included subjective language and could result in a "no design" option, taking away engineering prerogatives e. Item 8 limits design options for mitigation purposes because it requires the use of certain elements that may not be needed f. Item 5 doesn't provide for the flexibility needed to be able to build something based on what's actually happening in Aspen and to be able to make changes in the future. It impinges on the methods engineers would bring to the process. g. Item 6 would create problems in designing the highway based on the criteria listed. h. Item 3 restricts engineering ability. 29. Mr. Eylar stated that the Record of Decision provided parameters and did not have specific engineering requirements. He said the initiative petitions require specific standards. DISCUSSION AND CONCLUSIONS The process of initiative in the City of Aspen is governed by Article V. Initiative and Referendum of the Charter of the City of Aspen. Section 5.1(b) states: "The registered electors of the City may initiate a proposed ordinance, pursuant to the initiative power reserved by Article V, Section 1(9) of the State Constitution, as to any legislative matter which is subject to said legislative power ". Section 5.2 states: "The manner and procedure for exercising the powers of initiative and referendum shall be as set forth in Article 11 of Title 31 of the Colorado Revised Statutes, as may be amended from time to time by the state legislature, except as otherwise provided by the Charter ". Provisions found in Article 11 of Title 31 of the Colorado Revised Statutes include, but are not limited to, those procedures for filing and hearing a protest. The issues in the protest involve three (3) matters. They are: 1) the inclusion in the petition of matters that are not subject to the initiative power; 2) inclusion of more than a single subject; and 3) the misleading nature of the ballot title. Additionally, the Petitioners raised the issue that the protests were not properly filed and thus the administrative hearing officer did not have jurisdiction over the protest. This last issue will be discussed first. The two protest petitions were filed by Klein, Cote & Edwards LLC, attorneys at law representing the Protestors, on October 10, 2007. This was the last day protest petitions could be filed in accordance with state statute. The protest regarding the initiative petition known as the "Direct Connection" was signed by Herbert S. Klein. The protest regarding the initiative petition known as the "Modified Direct Connection" was signed by Lance Cote. On October 16, 2007, Jeffrey Evans sent an email to Kathryn Koch, City Clerk for the City of Aspen, alleging that the petitions had not been filed under oath as required by statute, were thus invalid, and that the hearing, scheduled for October 22, 2007, should be cancelled. Representatives of the Protestors filed verifications with the City Clerk prior to the October 22, 2007, administrative hearing. The verifications for Les Hoist were dated October 12, 2007; for Terry Paulson, October 19, 2007; and for Clifford Weiss, October 18, 2007. 31 -11 -110 of the Colorado Revised Statutes governs the process for filing protests. It states in part: "Within forty days after an initiative or referendum petition is filed, a protest in writing under oath may be filed in the office of the clerk by any registered elector who resides in the municipality, setting forth specifically the grounds for such protest." Petitioners argued that at the time the protests were filed, there were no accompanying oaths and that although the oaths were subsequently filed, they were filed after the deadline for filing the petition. They further argued that there was no provision in state statute that allowed for filing the oaths after the filing deadline. Therefore, the petitions were not valid. Supporting this position, the Petitioners presented three (3) court cases, Ramer, a 1916 Supreme Court decision regarding the omission of the word "sworn" in the notary public's statement; Adams, a 1989 Court of Appeals case dealing with the lack of appropriate review by the clerk of the court that recall petitions met the threshold statutory requirements — the petitions were remanded to the clerk of the court for further administrative processing; and Fabec, a 1996 Supreme Court decision dealing with, among other matters, inconsistencies in the dates of the affidavits of petition circulators and of the notaries public. It is Fabec that contains matters relevant to Petitioners' argument. The common and usual standard for determining compliance with election procedures and processes is substantial compliance rather than strict compliance. Fabec included a three -part test of substantial compliance: 1) the extent of the non - compliance; 2) the purpose of the applicable provision and whether that purpose is substantially achieved despite the alleged noncompliance; and 3) whether there was a good -faith effort to comply or whether compliance is based on a conscious decision to mislead the electorate. The attorneys stated that in previous cases, they had filed protests that did not contain statements under oath from the protestors. Once the Protestors were made aware of the lack of verification on these protests, they obtained statements under oath from each protestor for each of the two petitions and filed them with the City Clerk. All were filed prior to the hearing. The protests were filed in a timely manner and the content was not altered after the verifications were filed nor were they altered by the subsequent filing of the verifications. The lack of oath on the protests was an oversight. There was no intention to defraud or deceive the public. Looking at the test under Fabec, it appears that the test of substantial compliance was met. Furthermore, the Colorado Supreme Court has ruled that the constitutional rights related to the initiative power should not be hampered by technical statutory provisions nor by technical construction of those provisions. In other words, all due diligence should be taken to allow the citizens of the state their right to the proper use of the initiative power. It might be argued that in order to construe the initiative rights liberally, one would have to construe the procedures for protesting initiative petitions equally strictly. Otherwise, the rights to initiative would be limited and perhaps prohibited. If that were the case, however, it would follow that there should be no opportunity or no ability to protest initiative petitions. The opposite scenario exists: the state legislature has established a procedure to permit protests to take place. Since this protest procedure is a part of election law which is to be liberally construed, then the standard of substantial compliance applies in protest procedures as well. To state it colloquially, "what's good for the goose is good for the gander ". Petitioners' argument does not stand and the administrative hearing officer has jurisdiction in the matter of this protest. The initiative petitions seek to change the preferred alternative for the entrance to Aspen with a plan similar to, but not the same as, Alternative D, identified in the 1995 DEIS. It further seeks to rescind any and all prior enactments and authorizations that would be inconsistent with this alternative. Section 1 of the petition states: "The State of Colorado, Department of Transportation (CDOT) is hereby authorized to construct, operate and maintain a four -lane highway configuration which substantially conforms to the design described herein, subject to the following terms and conditions ", then lists nine (9) specific terms and conditions, summarized below: 1. the highway shall be built after completion of a reevaluation and issuance of a revised Record of Decision if either or both are required; 2. acceptance and implementation of the authorization (the ballot question) shall not result in any funding obligation for condition #1; 3. the highway shall be constructed as if it were Alternative D listed in the draft DEIS of August 1995, "except as provided therein "; 4. CDOT shall have sole discretion for design for the Maroon/Castle/Highway 82 intersection and for the location from Main St. to Highway 82 HOV/Transit lanes; 5. lane management shall be consistent with/no more restrictive than, access limitations on the Basalt to Buttermilk segment of Highway 82; 6. the alignment and bridge engineering shall be sufficient to allow the addition of a light rail transit system when community support and financing become available; 7. the conveyed property (open space) shall include, but not be limited to, several environmental and historical resource mitigation measures: a. avoid encroachment on community garden and hang - gliding and para- sailing landing areas; b. return to open space certain land to be abandoned by CDOT; c. be as sensitive as possible to location of the historic Holden Smelting and Milling Complex and Museum when considering alignment; d. use a minimum total of open space, consistent with good design e. design the bridge to be sensitive to the environment and community character; f. landscape with plantings, berms, depressions, and other methods to mitigate environmental and neighborhood concerns along the entire corridor; 8. any adjustments to conveyed property resulting in a net increase in acreage conveyed to CDOT shall require no further compensation or consideration to the City of Aspen; 9. any ground disturbing activity necessary for preliminary engineering or design work shall be the minimum reasonably necessary; if construction does not commence with one year, CDOT shall re- vegetate and landscape immediately upon completion of the activity. Protestors' first argument is that the petitions include matters that are not legislative in nature and therefore, not subject to initiative powers. They argued that legislative matters proscribe the "what" while administrative matters proscribe the "how ", "when" and "where ". Protestors said that if the proposed ordinances contained in the petitions were to be adopted by the electors, then the petitions would amend and, in some cases, rescind previously executed documents, specifically a Memorandum of Understanding (MOU) among the City of Aspen, Federal Highway Administration, and the Colorado Department of Transportation and a right -of way (ROW) easement between the City of Aspen and the Colorado Department of Transportation. Both these documents concern administrative processes that are needed to effect implementation of a proposed entrance to Aspen approved by the electors in 1996. Protestors further stated that by substituting another plan for the entrance to Aspen authorized by the City Council, the petitions apply conditions for that road that are specific design, engineering and mitigation processes that are administrative in nature and normally handled at the staff level at the City of Aspen. Petitioners stated that, in 1996, when the City Council put a question before the voters regarding the use of open space for a new entrance to Aspen, that question included several conditions that identified environmental and historic mitigation measures for the use of the corridor. Petitioners further argued that these conditions were legislative as a result of their having been included in a legislative act, a change in the use of open space. A change in open space use can not occur without first obtaining the approval of registered electors at an election for that purpose, in accordance with Section 13.4 of the Charter of the City of Aspen. In order to change the use of the conveyed land, the purpose of the initiatives, Petitioners thus had to include similar conditions in their petitions in order to show where the change in use would occur. Petitioners further argued that the conditions included in the initiative petitions were neither legislative nor administrative, but descriptive and necessary to instruct both the voters of Aspen and CDOT what they could expect from the new entrance to Aspen, in terms of location, use, and form. They further argued they were merely mirroring the form of the 1996 open space ballot question referred to the voters by the Aspen City Council. The City of Aspen is governed by a Council/Manager form of government. The City Council sets the policy direction for the city and the City Manager is responsible for carrying out that policy, utilizing the appropriate city staff. Specifically, Section 6.1 of the Charter of the City of Aspen states: "The manager shall be responsible to the council for the proper administration of all affairs of the City placed in his charge..." and then further states that he shall be required to: "Provide for engineering, architectural, maintenance and construction services required by the City." Thus, the charter acknowledges that tasks related to construction projects involving engineering, architectural, and construction services are administrative tasks. The City Council of the City of Aspen has the ability to refer any matter to the electorate, as provided for in Section 5.5 of the Charter of the City of Aspen: "The council on its own motion, shall have the power to submit at a general or special election any proposed ordinance or question to a vote of the people in a manner as in this article provided." That matter may be legislative, it may be administrative or it may be advisory. Citizens do not have that same latitude. While the initiative power is reserved to them, it can only be utilized for matters of a legislative nature. When the City Council placed a question on the November 5, 1996, ballot regarding the conveyance of open space for the entrance to Aspen, the question included specified conditions, including seven (7) environmental and historic resource mitigation measures. These measures identified what needed to be considered in designing the corridor. It is likely that these conditions were included to provide more information to enable the voters to make an informed decision. They were descriptive in nature and they described considerations that were administrative in nature. The fact that they were included in a ballot question regarding a change in open space use referred to the electors by the City Council does not automatically or necessarily make these conditions legislative. These measures or conditions are more fully enumerated and expanded in the MOU that was authorized in 1998. This document goes into great detail regarding the mitigation measures included in the 1996 ballot question and includes specifics on how trails will be relocated, re- graded, and re- paved, how much open space will be used, how the bridge will be constructed, how street re- alignments will be made, how historic buildings will be protected, etc. Not only does the MOU identify administrative, i.e., engineering, construction, mitigation actions, the MOU itself was considered by the City Council to be a routine administrative action by virtue of its having been approved by resolution. As stated in testimony, resolutions are used for administrative matters. While it appears the core purpose of the proposed initiative petitions was to ask the electors of Aspen to vote on a different entrance to Aspen alternative than the one approved by the voters in 1996, a vote made necessary by the need to use open space land in the project, it also appears that a secondary purpose was to mandate specifics regarding the design, location, and mitigation measures for that roadway. The proposed ordinance contained in the petitions also mandates the amendment or rescinding of existing documents authorized by the City Council because they would conflict with the specific elements or conditions of this new roadway. Both the secondary purpose of the petition and the amendment/rescinding of the documents are administrative matters entrusted to the City Manager of the City of Aspen and his staff. In fact, the MOU can only be amended "upon written agreement of all the parties" and not by the electors. In response to the argument by the Protestors that the conditions included in the petition are administrative, Petitioners responded by stating that new administrative procedures often follow changes in legislative policy. That is true. However, in the case of the petitions, the administrative procedures regarding type of transit corridor, location, mitigation measures, are specifically included as an integral component of them. Thus, requiring the City Council to authorize a new and different MOU and possibly a new right -of -way easement is not an administrative process that flows from a legislative change. It is an administrative requirement required by and stated in the proposed ordinance itself. Additionally, not only do Petitioners want to see a different proposed alternative serve as the plan for the entrance to Aspen, they want to see the alternative done their way, a particular way, and no other. While this hearing officer believes Petitioners felt that, in order to effect their core proposal, they had to enumerate and include all the conditions that constituted a change in use from the current proposal, in doing so, they encroached upon the administrative processes reserved to the administrative staff of the City of Aspen as authorized by the City Council. Thus, both petitions over -reach and intrude on administrative responsibilities of city staff and are not proper subjects for consideration by the electors of the City of Aspen. Allowing citizens, through the initiative process, to either dictate or negate administrative actions normally undertaken by city staff is a misuse of the process and is contrary to the rights to initiative established by the Charter of the City of Aspen. City of Colorado Springs v. Bull allows a hearing officer to sever impermissible portions of an initiative under the following conditions: when the remainder of the proposed bill can be given legal effect; when deleting the impermissible portions would not spirit of the measure; and when the sponsors and subscribers substantially change the spi p would prefer the measure to stand as unaltered. Severing the impermissible portions of the initiative would result in a proposed ordinance that asked the voters to determine whether the new entrance to Aspen should consist of two general highway lanes and two vehicle and/or transit lanes (HOV). Petitioners have testified that they believed the conditions listed were necessary to understand the proposal they were promoting and since it was a specific proposal with specific conditions, this hearing officer is reluctant to sever impermissible portions of the initiative and instead will consider the proposed petitions in their entirety. The initiative petitions contain administrative procedures that identify very specific requirements that must be met in order to effect an alternative proposal for the entrance to Aspen. If approved, the petitions would amend and possibly rescind previously- approved documents, including the MOU and the right -of -way easement, which were not only authorized by the City Council of the City of Aspen as an administrative matter, but also implement administrative procedures to be followed in the design and construction phase of the currently- approved entrance to Aspen. Allowing citizens to ask the electors to decide administrative matters would not only restrict and have a chilling effect on the ability of the City Council to enter into agreements; it would be done in violation of the Charter of the City of Aspen, which only allows citizens to initiate legislative matters. Petitioners' argument that the conditions included in the 1996 ballot question the City Council placed before the voters were legislative because they were part and parcel of a legislative question and that including similar, if not the exact same, conditions was thus also legislative is not a valid one. The governing body may place anything before the voters while citizens may not. Administrative or descriptive or illustrative elements do not necessarily become legislative simply because they are part of a ballot question. Protestors' arguments on this issue stand. Regarding the remaining two issues in this protest, the inclusion of more than a single subject, and the misleading nature of the ballot title, little, if any, testimony was presented in connection with these issues. However, the hearing officer will consider these matters. In regards to the first issue, that the petition contains more than a single subject, in looking at the petitions closely, there is actually a single subject, the question of a four - lane highway, two for general traffic and two vehicular and/or transit lanes (HOV), using certain property, including open space. It is the inclusion of the administrative conditions and requirements that appear to make this a multi- subject issue. Setting those conditions aside in terms of determining the subject, it is clear there is only one subject of the petition. However, this issue becomes moot because the petition itself is not the appropriate subject for the initiative process. In regards to the second issue, that the ballot title is misleading, no ballot title has been issued at this point in the initiative process. In accordance with 31 -11- 111(1), Colorado Revised Statutes, a ballot title is issued following the setting of the election date by the governing body for voting on the question. Therefore, this issue is also moot. DECISION Upon review of the protest and the evidence and testimony presented at the hearing on October 22, 2007, it is determined that the initiative petitions contain administrative subject matter that is not subject to the rights of initiative, and therefore, the initiative petitions are not sufficient. (s) Karen Goldman Administrative Hearing Officer October 29, 2007 Date CERTIFICATE I HEREBY CERTIFY that on this 29 day of October, 2007, a copy of the foregoing Decision of Administrative Hearing Officer was sent to: Kathryn Koch, City Clerk City of Aspen 130 South Galena St. Aspen, Colorado 81611 -1975 Herbert S. Klein ' Klein, Cote & Edwards LLC 201 North Mill St., Ste. 203 Aspen, Colorado 81611 Jeffrey Evans P.O. Box 324 Basalt, Colorado 81621 Curtis Vagneur P.O. Box 1471 Aspen, Colorado 81612 James R. True Special Counsel to the City of Aspen 216 S. Monarch #102 Aspen, Colorado 81611