Opinion: Cleaning up Boulder’s petition mess


Clear information has been lacking about the rules on the city’s petitioning process. Here are the basics from state and local law:
The 1970 home rule amendment to the Colorado Constitution Article XX added Section 9. This grants citizens the power to amend home rule city charters, and directs the Legislature to set the rules for such charter amendments. It also added Section 8, which states that this amendment supersedes any parts of the constitution that are not consistent with it.
In 1971, the Legislature passed its Home Rule Act to implement Article XX’s amendments. Its legislative declaration in C.R.S. 31-2-202 states that it supersedes all other provisions. In C.R.S. 31-2-210, the act set the signature percentages and timing rules — 5 percent of registered voters for “regular” (council) elections, 10 percent for “special” (all other) elections, 90 days to collect and submit signatures, and signature submission to be done by 90 days before the election.
Boulder Charter Section 137 also states that the charter may be amended as per Article XX of the Colorado Constitution. Charter Section 37, on the other hand, specifies that the charter’s rules on signature gathering, timing, percentages, etc. apply only to local legislative petitions, like ordinances. The charter specifically does not apply these rules to charter amendment petitions.
The charter’s rules for initiated ordinances are different than the state rules for charter amendments: They allow more time for signature gathering (180 days), tie signature numbers to actual voter turnout (10 percent of the average city election turnout in the last two elections) rather than to highly variable registered voter numbers, and set an earlier signature due date (150 days before the election) to allow petitioners to negotiate with the City Council, since these are measures that the council could pass on its own, unlike charter amendments, which must go to a citizen vote.
All these parts are consistent and work well together. And Colorado law allows such different rules.
Last Tuesday, the City Council finally formally agreed that petitioners must follow state law for charter amendments, as the constitution requires, and let stand the city charter rule for initiated ordinances. This is clearly the appropriate decision. And it is the same way many other Colorado cities operate.
I acknowledge Mark Wallach and Bob Yates for their cogent arguments supporting this decision.
(Email me for a document with both sets of rules and the basic laws.)
In my opinion, the confusion that has occurred came entirely from the City Attorney’s Office. For example, its memo and presentation slides for last Tuesday’s meeting failed to even mention Charter Section 137. The legal staff continues to bring up Article XX, Section 6, which is more than 100 years old, even though the 1970 amendment’s Article XX, Section 8, clearly states that this amendment supersedes anything in conflict with it, and Section 9 specifically overrides Sections 4, 5, and 6.
And the CAO keeps claiming that Charter Section 37 applies to the charter amendment process, when its language clearly doesn’t.
The CAO’s analyses also failed to point out major flaws in the proposed ballot measures. The “mayor” petition only would create seven council seats plus the mayor, but the charter requires nine in total. The “bedrooms” petition allows four people in a tiny efficiency unit, but might forbid a family having two children in the same bedroom, depending on how its language is interpreted.
The CAO wrongly attacked the “CU South” petition language as not “legislative,” even though its annexation agreement terms are the quintessence of a legislative act, and besides, no such limitation on charter amendments apparently exists. And the city attorney gratuitously opined that the “renters” ordinance’s $75 per unit fee is valid under the Taxpayer’s Bill of Rights, even though it could easily lose in court and impose the unrestrained cost of these attorneys on the city’s general fund.
I could go on, but to me, these multiple failures clearly indicates a serious need for better legal help.
Now some council members are pushing to put some of these initiatives on the ballot as the council’s measures. For the council to responsibly put items on the ballot, it needs to support both the concepts and the details. Otherwise, the proposals should be required to meet legal standards, which were designed to limit the number of ill-conceived measures on the ballot.
But most importantly, the council must take decisive action with respect to this shoddy performance, and not just shove it all under the rug. It is obvious that there is a serious problem with its city attorney, and it needs resolution, not avoidance.


Popular Posts

Opinion: Opportunity for the new Boulder City Council

Congratulations to the four new Boulder City Council members! You have a great opportunity to make a contribution to the Boulder community, but it will take a lot of work to do it responsibly; the learning curve is pretty steep. Here are some suggestions for you (and other Council members) that may help improve the process. Read the Charter. It is the document that governs how you, city staff, and board and commission members operate, and how you relate to each other. It defines the limits of your and their power, and can only be amended by a citizen vote. You don’t have to remember every word. But just knowing what’s there makes you more self reliant and less at the mercy of others’ opinions. For example, relative to the recent meeting discussion over diversity, the council does  not  have the power to suspend the rules as to when the mayor is selected. Charter Section 14 specifies, “The mayor shall be chosen by the council from its own number, upon the convening of t...
Read more

Opinion: Is this the end of Boulder as we know it?

Much of what has made Boulder such a great place to live has been the work of people half a century ago. These people recognized what I call the “ ratchet effect ,” that bad development decisions cannot be undone, so policies needed to be put in place to prevent, or at least limit, the damage that a growth-at-all-costs majority of the council could do. These policies include charter limits, like the Blue Line that prevents city water for development from being supplied above a certain altitude, the 55-foot height limit that has prevented high-rise development from cutting off our views, and the open space referendum process that allows a 60-day window for citizens to challenge disposals of open space. Other constraints include the Boulder Valley Comprehensive Plan’s requirement for Planning Board agreement for land-use changes in the area inside the city limits (Area I) and additional agreement by the county commissioners and county Planning Commission for urban development further...
Read more

Policy Documents: Impact Fees and Adequate Public Facilities

I am writing this to correct some of the apparent inaccuracies put forward at the 10/14 CC/PB study session about charging growth for its costs. I do not claim to be an expert in the field, but I have studied it long enough and consulted with enough supposed experts and legal types to understand most of the basics. In addition, I have found that the experts don’t necessarily know everything and won’t necessarily put forward the most appropriate solutions. The fundamental rule, both legal and equitable, is that growth should pay to address its impacts so as to maintain existing levels of service (LOS) for existing residents and businesses. But growth cannot be required to improve levels of service. LOS is measured in all sorts of ways depending on the facility and/or service being measured. For transportation, it could be total VMT, travel time, intersection waits, access to transit, etc. For schools, it might be square footage per pupil, etc. For water, it could be water righ...
Read more