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Pagosa
Springs Daily News
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| Confusing the Big Box Issue, Part Two |
| Bill Hudson | 3/9/10 |
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| Back to the News Summaries |
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Read Part One
The Town Council agenda posted yesterday on the Town of Pagosa Springs website is one of the more curious ones I’ve come across in my five years covering Council meetings. There are three items on the agenda — and two of them are nearly identical.
The meeting, scheduled for this morning at 11am at Town Hall, has listed as Item One under New Business:
1. Emergency Ordinance No. 751 Repeal Sections of the LUDC relating to Large Retail Development and Referring Ordinance No. 751 to Electors
Then, Item One, under Old Business, reads:
1. Ordinance No. 751 (second reading) Repeal Sections of the LUDC relating to Large Retail Development and Referring Ordinance No. 751 to Electors
The Council, this morning, will consider passing the exact same ordinance, twice — once as an “Emergency Ordinance” and once as a “second reading” of an ordinance passed as a 'first reading' at their February 18 Council meeting.
That ordinance would place an additional referendum, Referendum B, on the April 6 ballot — next to the voter-requested Referendum A. Referendum B would ask voters to repeal additional Big Box regulations left behind in the Town Land Use and Development Code (LUDC) when the Council tried to repeal Section 2.4.5 of the LUDC back in August.
Referendum B would also, very likely, confuse some voters enough to make them hesitant to vote on either referendum.
 This curious situation — two identical ordinances at the same meeting — has resulted from an observant comment made at the Council’s March 2 meeting. At that meeting, attorney Matt Roane — the gentleman who gathered most of the 120 or so Town voter signatures collected to place Referendum A on the Town’s April 6 ballot — informed the Council that they had improperly passed the first reading of Ordinance 751, and therefore the “second reading” — scheduled for this morning, March 9 — might be moot.
“I want to raise one issue for you all to consider before your March 9 meeting, that might make that meeting unnecessary,” Roane told the Council last Tuesday, speaking from the back of the room in response to comments by staff.
“I’ve looked on the agenda, and the one posted downstairs, and the only listed item so far is the second reading of Ordinance 751, the additional Big Box regulations that have been proposed for the April 6 ballot.
"You had a first reading of 751 on February 18.
“And I’ve gone back and looked at the Home Rule Charter, and in order to have a satisfactory first reading, a complete copy of the ordinance needs to be made available to the public, or the complete ordinance needs to be read into the record.
“Neither one of those things happened. All that happened was that the title of the ordinance was read. So I don’t think there has been a proper first reading. Therefore I wanted to raise that issue for you all, so you can decide whether it’s appropriate to have a second reading next Tuesday. Until the ordinance is made available to the public, or it’s read into the record, I don’t think we’ve satisfied that first hurdle. I believe the Council needs to have a compliant first reading.”
Here’s the wording from the Town Home Rule Charter to which Roane was referring:
A) First Reading. An ordinance shall be introduced and considered for first reading at a Council meeting. The ordinance may be read by title only if copies of the ordinance are available to the public at the meeting; otherwise, ordinances shall be read in full at the meeting. An ordinance may be approved, approved with amendments, disapproved, continued for amendments or continued for further consideration when presented on the first reading.
Town manager David Mitchem responded to Roane, saying, “I believe the ordinance was available to the public for their review. Did you find any reason to believe it was not available?”
“I looked all around the Council Chambers,” Roane replied. “I looked on the chair outside the door were the agenda was available, I went downstairs after the meeting and looked on the bulletin board. I looked on the front desk. And I found no copies. I know myself that I can ask anytime, and [Town clerk April Hessman] would provide one, but the Town Charter says to make it available to the public — who perhaps doesn’t know that you can go ask April anytime during the week. So, it was not available to the public at the meeting, as the Home Rule Charter requires.”
It’s now a week later, and the Council has, on its agenda for today’s meeting, two shots at putting an additional Big Box referendum — Referendum B — on the April 6 ballot. At the advice of Town attorney Bob Cole, of Denver law firm Collins Cockrel & Cole, the Council will consider passing Ordinance 751 both as a second reading and — just in case Matt Roane was correct and the first reading of 751 was indeed improper — as an Emergency Ordinance.
Emergency Ordinances require only one reading, and mayor Ross Aragon and the Town Council have used Emergency Ordinances in the past to pass regulations related to Big Box issues, as I recall. On those earlier occasions, however, I believe the intention was to prevent Big Box development until such time as the Town had proper regulations in place.
Now, the “Emergency” appears to be based upon Council fears that it can’t get rid of its own regulations fast enough.
Here’s the wording in the Home Rule Charter describing the proper use of the Emergency Ordinance powers:
A) An ordinance that is immediately necessary for the preservation of public peace, health, or safety may be enacted upon a single reading as an “emergency ordinance” at any regular or special meeting of the Council by the affirmative vote of a majority of the Council members present. Any emergency ordinance shall state expressly that it is an emergency ordinance and shall describe the nature of the emergency.
I suppose we could argue about whether an ordinance aimed at placing Referendum B before the voters in April could be considered “immediately necessary for the preservation of public peace, health, or safety.”
But according to my conversation with Town manager David Mitchem yesterday, no less an authority than Bob Cole, of Collins Cockrel & Cole, seems to feel Ordinance 751 indeed qualifies as an emergency.
For those of us who might think the Town Council is stretching the intentions of the Home Rule Charter by calling Ordinance 751 an “Emergency Ordinance.” there are two courses of action.
We can show up and testify at today’s Town Council meeting, and pray the Council agrees with our interpretation.
Or we can take the Town Council to court.
As far as I can tell, the Town has no compelling reason to be playing these kinds of games with the voters. The Town voters expressed their opinions last year, by signing a petition asking for a community-wide vote on whether we want regulations to guide Big Box development — or whether we want Big Boxes to have free reign over the community, in the name of “economic development.” That vote, it seems to me, would clearly establish what ought to be done with the other Big Box rules contained within the LUDC — and direct the Council in the proper way to act on those rules.
The town-wide vote will take place on April 6. Folks living in the unincorporated county will not be able to vote on the issue, because they don’t live within the Town limits — even though nearly all their businesses operate within, and pay taxes to, the Town.
Referendum B, if approved and allowed on the April 6 ballot, would ask the voters to validate the removal of several Big Box rules located in section 2.2, 2.3, and 2.4 of the Town LUDC. The Town Council failed to address those sections fully when it voted in August to throw out its Big Box regulations.
I attended that August meeting, and I recall Matt Roane asking the Council why it wanted to do an incomplete job of repealing the Big Box rules. He didn’t get an answer, as I recall it.
The voters’ petition last year didn’t address those additional sections of the LUDC because ... well ... they were still on the books. Now the Town seems to feel that the voters want to vote on the repeal of even more Big Box rules — or else, perhaps, the Town fears another petition drive if it neglects to get every single Big Box rule before the voters in April.
Unfortunately, whatever the Council’s reasons for considering Referendum B, there can be no doubt it will cause confusion among the Town voters — who have never before had a chance to vote on a referendum as allowed by the Home Rule Charter they passed in 2003.
I personally wish this first time around could have been less messy.
I’m also looking forward to today’s meeting, and writing — for the first time — about two identical ordinances, both disapproved at the same Council meeting. Though I may find myself reporting, instead, that they were both approved.
Read Part Three... |
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