Entrance to Aspen: Let the voters decide
The Aspen City Charter restricts property purchased for open space to a very limited range of uses and reserves for the electorate the power to change the allowed use for any such property. This is the only reason there was ever a vote on the highway design for the Entrance to Aspen.
So, regarding the initiative petition that the Colorado Supreme Court just threw out, one way you could frame the core legal question was thus: In an instance where the allowed use of a particular class of property is defined in a city charter, and the change of that use is reserved to the people, are the people prohibited from changing that use through the initiative process without the express permission of that charter?
The first round in the judicial process came before a hearing officer, and the attorneys for the protesters (the people trying to block the petition from reaching the ballot) spent a few hours presenting evidence and testimony that was not in any way relevant to any known legal question. They went on at length about the amount of work and community involvement that had gone into creating a plan for the entrance – which would be changed by the initiatives if the electorate chose to approve them. Why this isn’t a concern more properly left to the voters is a major question that will never be answered.
The attorneys for the protesters created what I called at the time a tar-baby. For those who have forgotten the story, Wikipedia defines tar-baby as “a doll made of tar and turpentine used to entrap Br’er Rabbit. The more that Br’er Rabbit fights the Tar-Baby, the more entangled he becomes.”
The hearing officer never escaped the briar patch and decided that it just wouldn’t be right to abandon all the hard work those dedicated bureaucrats had done in creating a plan that can’t be built, and wouldn’t function properly if it were.
A District Court judge wandered around the thicket long enough to stumble across a core legal question. This judge determined that, because of the provisions of the city charter, the change in use of the Marolt property was indeed legislative in nature, but still the tar-baby was so irresistible that its presence outweighed the legal question.
The Colorado Supreme Court now has managed to determine that although the voters must approve any change in the use of open space, the charter doesn’t proactively grant voters the power to propose a change – as though the city charter were the source for the initiative power defined by our state constitution. Yes, folks, the Supreme Court lost track of the context in its own ruling.
It can be presumed that a new petition could be drafted so long as it doesn’t require any action on the part of the City Council or something. Fortunately, at the moment there is another less futile course of action available.
The people of Aspen can simply elect two new council members and a mayor who vow to place exactly those two questions that the voters wanted on the November ballot. Any candidate who doesn’t agree should be asked to explain their decision to the 800 registered voters who signed the petitions, just to have them thrown out on a technicality – in this case the inability to recognize tar and turpentine.
(Hint, hint: Any candidates who would like to run on a pro-highway platform will be starting out with a pretty hefty block of votes.)
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U.S. Forest Service ready to make happy campers with the opening of facilities in the Aspen-Sopris Ranger District.