Protests attack validity of initiatives
A pair of initiative petitions that propose new rules governing Aspen’s development of worker housing contain elements that aren’t legal subjects for an initiative, according to protests filed against the petitions.The protests – filed with the city clerk on Monday by J.E. DeVilbiss, a retired district court judge – ask that the initiatives be deemed unlawful. They’re signed by local attorney Herb Klein, though DeVilbiss is identified as the city elector filing the protests. DeVilbiss could not be reached for comment Tuesday.The initiatives, circulated by opponents of Aspen’s controversial Burlingame Ranch housing project, had been slated for the city’s May 3 ballot, but the City Council approved a resolution Monday that postpones an election on the measures until the protests are resolved. A hearing on the protests must take place by April 5, City Clerk Kathryn Koch said.Klein said still to come are supplements to the protests that will focus on alleged deficiencies related to the signatures on the two petitions. But the protests filed Monday focus on the substance of the measures. In both cases, according to the protests, the initiatives address administrative acts by the city that are not valid subjects for a citizen initiative. “The law makes it clear that only legislative acts of City Council may be the proper subject of an initiative petition,” the protests read.”There is, of course, nothing preventing the proponents of [the petitions] from drafting and circulating a revised version which presents only questions susceptible to the initiative process,” the protests note.The initiatives propose a pair of ordinances. One would require voter approval of city housing developments of more than a certain size or amount of public subsidy; the other would prohibit the city from entering into preannexation or annexation agreements that assure development outcomes or waive land-use requirements.Generally, legislative acts set policy, while administrative acts carry out those policies, explained John Worcester, city attorney. Often, the line between the two is blurred and a court ruling is required to determine what is legislative and what is not.Administrative acts, which aren’t subject to the initiative process, include actions like setting staff salaries, hiring and firing city employees, entering contracts or closing a street for a special event, he said.”If every administrative act was subject to initiative, it would be very easy to bring the city’s operation to a halt,” Worcester said.Had the petitioners simply proposed that Aspen can’t build any more worker housing, that would be a broad legislative policy that citizens could legally attempt to initiate through a petition, Klein said.”When they get into saying, when the city develops affordable housing, they have to do all these micromanaging kinds of things, that’s administrative,” he said.Dwight Shellman, a former Pitkin County commissioner and one of the instigators of the two initiative petitions, said the petitions were drafted with advice from a leading municipal lawyer in Denver to ensure they would pass muster in the event of a challenge to their wording.”We did seek highly qualified legal advice on this final wording, so we’ll await the outcome,” he said.Protests against initiative petition efforts are nothing new in Aspen. Neighbors of a proposed parking garage on Hyman Avenue successfully challenged an initiative circulated by the garage’s would-be developer, Peter Fornell, last year. They claimed elements of his initiative weren’t valid subjects for the initiative process. The hearing officer agreed. Fornell sued over the ruling; the case is still pending.In 2002, former City Councilman Tony Hershey challenged an initiative aimed at forcing a new vote on the Entrance to Aspen, focusing on the manner in which signatures were collected. Though some signatures were tossed out as a result of his challenge, the initiative still had enough signatures from registered voters to proceed.In both cases, Karen Goldman, former secretary to the Colorado Senate and now a consultant on election issues, conducted the hearings. Janet Urquhart’s e-mail address is email@example.com
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