Jeffrey Evans: Guest Opinion
Special to The Aspen Times
Aspen CO, Colorado
A bit of follow-up clarification might be in order regarding the district court decision to reject petitions intended to end the gridlock at the Entrance to Aspen (“Four-lane effort into town denied,” Nov. 1, The Aspen Times).
The Times chose a particularly salient portion of the decision to reproduce in the article, and for those who missed it:
“Petitioners cannot force, or require, the city to convey an interest in open space property to CDOT on conditions ” petitioners can only obtain voter approval for such a conveyance,” according to Nichols’ ruling. “… conveyance of property is an administrative function and [the city charter] does not give voters the authority to direct or require City Council to convey property; it only gives the voters the right to approve such a conveyance … Even if the court ignores the conveyance language, the petitions do not simply propose a change of use for the open space ” they require a specific, detailed design for a highway.”
The language of the petitions begins, “The City of Aspen hereby authorizes and approves the conveyance…”, and goes on to describe the allowed use of land at the Entrance that would lead to the construction of a new four-lane highway (with lanes everyone can use). In this case, “the conveyance” to which we refer is the conveyance which has already occurred ” the property is already in the hands of the state. So, how could we be forcing or requiring the city to convey property if it has already done so? It beats the bejabbers out of us.
Another part of the problem with the court’s interpretation may be no more than a skewed cultural perspective. When the folks over at City Hall see the words “city of Aspen,” they think you’re talking about them ” the municipal government. We think that the city of Aspen is also a geographical location with a population, some of which is made up of registered electors. It should be patently clear in the context of a citizen initiative that it is these electors, not the city administration, who would be authorizing and approving a change of use of the property at the Entrance to Aspen ” exactly as the judge has stated they are allowed to do. Apparently some judges are as government-centric as Aspen’s City Hall.
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The Aspen city charter states that City Council may not “cause or allow” the change in use of city-owned property originally purchased for open space without voter approval. The thing that is driving the current city administration slightly crazy is that if the voters offer a new allowed use to the state of Colorado through the petition process, and the state chooses to exercise that option, there is no role for City Council to play. They will have neither allowed nor caused the change of use without voter approval, and the conveyance has already been done, so there is nothing further for them to do nor any action available which would allow them to block the construction of a new highway.
This whole drama is being foisted upon the public by elected officials who cannot come to grips with the thought that the electorate ” their constituents ” could be in a position to make a final and binding decision.
The Times is in error when it reports that the judge found that the petitions are administrative actions, and therefore not allowed. As with the hearing officer who preceded her, the judge ruled in our favor that a change-of-use question, as provided for in the city charter, is a legislative question and therefore appropriate to the initiative process. However, according to the court, we cannot describe what that allowed use will be, because any such descriptive language is administrative. If that doesn’t make sense to you, welcome to our world, and join us in our confidence that this interpretation will encounter a few problems further up the judicial food chain.
Depending on the schedule of the courts, it is possible we could be in litigation for another couple of years. There is a very simple solution for Aspenites if they don’t care to wait that long to approve a cure for the traffic jam at the Entrance.
Next May, Aspen voters could elect new council members who would look at the signatures of 800 of their constituents and conclude that the questions those constituents have asked to be placed on a ballot are exactly the questions which should be placed on a ballot.
I know, I know, what a concept!
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