City of Aspen prevails in lawsuit over municipal office building
August 3, 2018
Two Aspen residents who sued the city over its ordinance to build municipal offices lost their case on Thursday, when a judge ruled in favor of the local government.
Ninth Judicial District Court Judge John Neiley dismissed the case filed last year by Steve Goldenberg and Marcia Goshorn, arguing that the city abused its discretion when it passed Ordinance 4 approving a 37,500-square-foot building at Rio Grande Park and Galena Plaza.
They were attempting to get a citizen petition on the ballot to let the electorate vote on the development. But what was at issue is whether they had collected enough valid signatures from registered voters to get on the ballot, per the city's home rule charter.
Neiley cleared up that issue in his 19-page ruling.
"As it stands now, the plaintiffs cannot overcome the undisputed fact that they never submitted the required 640 signatures as required by the unequivocal language of the charter, and they have no valid excuse for failing to do so," Neiley wrote in his order. "The plaintiffs failed as matter of law to meet the charter's threshold minimum of 640 signatures from registered electors to sustain a referendum petition."
Aspen City Council approved the project in April of 2017. A month later, Goshorn and Goldenberg attempted to put the referendum to voters but City Clerk Linda Manning said they did not get the adequate number of signatures for their petition in the required timeframe.
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That's when they sued the city, arguing they were denied an extra day per the home rule charter.
In previous orders, Neiley ruled in Goshorn and Goldenberg's favor on the timing issue and whether they were allowed to take it to a petition in the first place.
The city contended that council's approval of a new office building was "administrative" and therefore not subject to referendum.
But Neiley ruled against the city, saying that not only was council’s decision “legislative” and therefore subject to a citizen referendum, but also that the petitioners had extra day to submit the required amount of signatures to get the question on the ballot.
The only issue left was whether there was enough signatures to meet the 10 percent threshold of valid, city registered voters.
Neiley ruled on Thursday that the court agrees with Manning's determination that the petition was at least 98 signatures short of the required 640.
Additionally, out of the 753 submitted, 146 of them were deemed invalid, which is characterized as a signature of a registered voter that contains a technical deficiency such as a missing address or date, or a misspelling.
The petitioners argued that the city charter afforded them the right to supplement the petition.
In her June 13 letter to the petitioners, Manning said that right was not available to them because they never met the threshold for a viable petition and they can't go out to obtain new signatures.
As Judge Neiley pointed out in his ruling, petitioners never tried anyway.
"Even if the court disagrees with the city's first argument and finds that the plaintiffs did have a right to amend or supplement the petition with additional signatures, they never did so," Neiley wrote. "It is undisputed that, notwithstanding the plaintiffs' filing of the notice of intent to amend, they never followed through within the 10 day period by filing any supplemental or corrected signatures. They simply abandoned the process."
Jordan Porter, the lawyer representing Goshorn and Goldenberg, said via email he and his clients are in disagreement with the court's order and are looking at all options, including submitting a motion for reconsideration and appealing as necessary.
"The fundamental flaw with the city’s argument is that the City Clerk explicitly indicated in her letter that the right to supplement was unavailable; explicitly explained how her finding was different from one that would trigger the right to supplement; and, further, subsequently indicated she would not accept supplemental petitions," Porter wrote in the email. "In effect, the city’s argument is that it can explicitly deny rights and then turn around and blame its constituents for not exercising the rights that were denied. This places its citizens in a precarious position whereby they have no certainty with respect to a city decision … The city can deny rights and then subsequently assert those rights should have been executed anyway."
City Attorney Jim True said he is relieved that the city was able to prevail on the last point of contention in the case.
"Linda Manning, the city clerk, and I were always trying to follow the law as we interpreted it," he said Friday morning.
How the judge's ruling affects the city's position on whether to move forward with its original municipal building at Galena Plaza or buy turnkey office space on Hopkins Avenue remains to be seen.
"It does change the dynamic to some degree," True said.
City officials recognize that having the case drag on in the Colorado Court of Appeals will increase the cost of the Galena Plaza project and delay adequate working space for employees. The project is currently budgeted at $22 million but local construction costs are estimated to escalate 10 percent annually.
"If they appeal it, it could take awhile," True said. "It's not over until it's over."