Entrance questions put to test
October 23, 2007
ASPEN ” Two Entrance to Aspen ballot initiatives had their day in court Monday.
Four-lane proponents and a group of protesters faced off at Aspen City Hall in front of Karen Goldman, a special hearing officer city officials hired for outside perspective.
One proposed ballot question asks voters to approve a four-lane “direct connect” on Highway 82 as it enters Aspen; the other calls for a “modified direct” alignment with a cut-and-cover tunnel.
Opponents of the ballot initiatives claim the proposals are “administrative” actions and not appropriate for a resident-spawned vote.
Goldman promised a decision on the matter Oct. 29.
Jeffrey Evans and Curtis Vagneur, who were without counsel at the hearing, collected signatures to put the two questions before voters during a special election this winter.
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The pair hopes voters will approve one or both of the ballot initiatives and make way for a four-lane solution at the congested Entrance to Aspen.
But on Oct. 10, Les Holst, Clifford Weiss and Terry Paulson filed a protest to the ballot questions, leading to Monday’s hearing.
Evans said he is frustrated with the “delay tactic” of Monday’s hearing; he also said because the protest was filed improperly, the hearing was not valid.
“No jurisdiction exists for this hearing,” Evans said.
In addition, Evans argued that the protest group did not provide the proper verification “in writing under oath.”
Evans cited past cases where similar errors were enough to end such a hearing. Goldman said she would consider Evans’ protest as part of her decision.
“We have no witnesses,” Evans said in his opening statement. “We believe we have established a legal basis for what we are doing.”
Evans said the ballot initiatives call for a change of policy on use of open space.
Carrying out that policy means creating new administrative actions, Evans said. And, like a similar ballot question in 1996, the two initiatives describe the proposed projects but don’t represent administrative micromanaging.
Attorneys Herb Klein, Lance Cote and Corey Zurbuch, speaking on behalf of the protesters, argued that Evans and Vagneur were meddling in administrative matters and micromanaging a road project.
While a government body, such as the City Council, can introduce any ballot measure ” either a larger issue of policy or a minute detail of administration ” voter initiatives are limited to big-picture issues, Klein said.
Evans is asking voters to “intrude” on contracts and open space agreements with the Colorado Department of Transportation, according to Klein.
“This is clearly administrative material,” he said.
If Evans were to argue for a change in how the city manages its open space, that would be valid. But a proposal calling for specific details on a project is not valid, Klein said.
Assistant City Manager Randy Ready testified on the history of the current preferred alternative ” which allows for two lanes of general traffic and a rail corridor (or two lanes of bus traffic) passing through a cut-and-cover tunnel across the Marolt Open Space and a new bridge across Castle Creek to Main Street.
Ready called Evans’ proposal a “hybrid” of other plans.
In a long and costly process dating back to the early 1990s, engineers and transportation experts made a comparative analysis and chose the preferred alternative from among some 40 options and put it to the test of an environmental impact study, Ready said.
Evans’ “hybrid” proposal would have to go through a similar process, Ready said.
“You can’t decide the how, when or where through the initiative process,” Zurbuch said, adding that citizen initiatives can only argue the broader “what” of a policy.
Just because the City Council has introduced similar administrative issues to voters does not give citizens the right to do the same, Zurbuch said. He said the ballot initiatives would “tie the hands” of the city manager and engineers.
And on the legality of Monday’s hearing, Zurbuch argued that the law requires petitioners and protesters to “substantially” ” not perfectly ” conform with the rules, adding that the protesters filed all the information in time and had no intent to deceive.
“We believe the city has a policy. That it wants a new Entrance to Aspen,” Klein said in closing arguments. The “how, when and where” is an administrative matter for city staff, he said.
“Do not leave the decision in the hands of amateurs,” Klein urged Goldman.
In closing, Evans argued that voters want to decide.
“The voters have asked for an opportunity to vote on these things,” Evans said.
Goldman will fax her decision to Aspen City Clerk Kathryn Koch on Oct. 29. Any appeals would go to district court, Goldman said.
Charles Agar’s e-mail address is firstname.lastname@example.org