All posts by Livable Boulder

“Neighborhoods’ Right To Vote” is an exercise of the citizens’ powers as enshrined in the Colorado Constitution

“Neighborhoods’ Right To Vote” is an exercise of the citizens’ powers as enshrined in the Colorado Constitution

In a recent Camera guest opinion (Sunday, 8/30/15) Dave Abelson selectively quoted the language from one sentence in the Colorado constitution to argue that the “Neighborhoods’ Right To Vote” initiative likely violates the constitution. But the very next sentence in that constitutional section (which Abelson failed to reference) points out the fallacy of his argument, and shows that, in fact, the constitution supports the rights of citizens to set the rules for referendum processes, such as those allowed by this initiative.

Also, the Boulder City Attorneys Office has reviewed this initiative at least twice, once before it was circulated, and again just last week. And the CAO found no such legal barriers. Here’s a link to the CAO implementation memo.

Here’s the full text of Article V, Section 1(9), the one that Abelson referenced. Note the underlined part:

 “The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality as to all local, special, and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws; except that cities, towns, and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten percent of the registered electors may be required to order the referendum, nor more than fifteen percent to propose any measure by the initiative in any city, town, or municipality.”

What the Colorado constitution describes is exactly what would happen if the citizens of Boulder choose to pass the Neighborhood’s Right to Vote charter amendment in the upcoming city election in November.

The citizens would be “provid(ing) for the manner of exercising the…referendum powers as to their municipal legislation” by granting referendum power to a subset of their citizens (a neighborhood) to refer certain council-passed land use regulation changes (“their municipal legislation”) to a vote of that neighborhood, with that vote only applying to the implementation of such changes in that neighborhood.

It is generally agreed that local land use regulations are one of the fundamental forms of “municipal legislation”. The state constitution, in Article XX, Sec. 9 and the linked statute CRS 31-2-210, endorses the citizen initiative process as a legitimate way to set or amend a city’s charter rules for how the city operates, with one of those rules “provid(ing)” for the exercise of referendum powers on municipal legislation.” And the Boulder city charter in Section 137 specifically states that the state constitution defines how the City charter may be amended.

*Some Case Law  off of Lexis/Nexus’s version of the Section on initiatives that Dave Abelson referenced…

ALL POWER HAS BEEN RESERVED BY PEOPLE THROUGH INITIATIVE AND REFERENDUM. In re Legislative Reapportionment, 150 Colo. 380, 374 P.2d 66 (1962).

Under the Colorado Constitution, all political power is vested in the people and derives from them, and an aspect of that power is the initiative, which is the power reserved by the people to themselves to propose laws by petition and to enact or reject them at the polls independent of the legislative assembly. Colo. Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972).

PEOPLE’S RIGHT TO LEGISLATE RESERVED. By this section, the people have reserved for themselves the right to legislate. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

POWER OF INITIATIVE IS A FUNDAMENTAL RIGHT. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

PURPOSE OF INITIATIVE AND REFERENDUM embodied in the constitution is to expeditiously permit the free exercise of legislative powers by the people, and the procedural statutes enacted in connection therewith were adopted to facilitate the execution of the law. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938).

The power to call referendum and initiative elections is a direct check on the exercise or nonexercise of legislative power by elected officials. Margolis v. District Court, 638 P.2d 297 (Colo. 1981).

PROVISIONS FOR INITIATIVE AND REFERENDUM ENTITLED TO LIBERAL CONSTRUCTION. It has generally been held by the courts of all jurisdictions that a constitutional provision for the initiative and referendum, and statutes enacted in connection therewith, should be liberally construed. Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938); Baker v. Bosworth, 122 Colo. 356, 222 P.2d 416 (1950).

Initiative and referendum are fundamental rights of a republican form of government which the people have reserved unto themselves and must be liberally construed in favor of the right of the people to exercise them. Conversely, limitations on the power of referendum must be strictly construed. Margolis v. District Court, 638 P.2d 297 (Colo. 1981).

RIGHT OF INITIATIVE PERTAINS TO ANY MEASURE, WHETHER CONSTITUTIONAL OR LEGISLATIVE, and, in the case of municipalities, it encompasses legislation of every character. McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980).

This section, as well as the statutes which implement it, must be liberally construed so as not to unduly limit or curtail the exercise of the initiative and referendum rights constitutionally reserved to the people. Colo. Project-Common Cause v. Anderson, 178 Colo. 1, 495 P.2d 220 (1972); Billings v. Buchanan, 192 Colo. 32, 555 P.2d 176 (1976).

Protecting our neighborhoods – Jan Trussell

Jan Trussell: Protecting our neighborhoods

Boulder does not have a good record for protecting neighborhoods. Our city staff and elected officials have not served us well in this regard. This has led to many battles that we should have never had to fight.

Some years ago, neighbors near the former Washington School had to do the impossible — gather petitions with signatures of 10 percent of all registered Boulder voters to try to stop the project on that site, which was so inappropriate that the council had to in effect “spot zone” the land, arguably illegally, to let it proceed.

Before that, there was the furor over building high-rise apartments along South Lashley Lane, on the east side of south Broadway. This went forward with the support of the council and staff until a huge protest was staged in the NIST auditorium.

More recently, there was a battle over the potential annexation of the Hogan Pancost property near East Boulder Community Center. City staff supported this foolish project in a flood-prone area with high ground water. The neighbors’ efforts to explain the problems fell on deaf ears until the planning board unanimously turned the project down. Council could have shut this down at any time by designating the land as not annex-able under the Boulder Comprehensive Plan, but so far the land remains in limbo.

The Baseline Zero project, a massive office park and hotel, was proposed in Martin Acres on land zoned for neighborhood-benefiting retail and services. It would have buried the neighborhood in traffic, parking, height, and potential flood impact (being fully located in the neighborhood’s 100-year floodplain). That neighborhood had to fight this tooth and nail to even get it put on hold and it’s likely to be back when the city lifts its temporary height cap. City staff should have never let this project start forward and council should have stopped it.

The final straw was the city’s Comprehensive Housing Strategy, now called “Housing Boulder,” whose staff-generated goals were approved by council. These goals called for wholesale densification of essentially all neighborhoods in Boulder. There was never any scientific polling of all citizens to see if that’s what they want. There was never any consideration of what this might mean for property values, or for the quality of life and what’s really galling, there was never any real analysis as to whether the identified outcomes would achieve much of lasting value. Finally, according to some citizens who are involved in this project, the process is so flawed, it’s a waste of time.

So now citizens are fighting back. There is an initiative, “Neighbors’ Right to Vote,” that, assuming enough people sign the petitions, will be on the ballot this fall. This would empower a neighborhood that is subject to up-zoning, or changes in city land use regulations that would increase the density or intensity of development, to refer those measures to the voters in the neighborhood by gathering signatures of 10 percent of the registered voters in the neighborhood. (This is not easy, but it’s easier than what the Washington School folks went through; they had to gather signatures from 10 percent of all Boulder voters.) If the majority of a neighborhood votes “No,” then these changes in regulations would not apply to that specific neighborhood.

Contrary to a letter to the editor published April 29, this initiative does not give the neighbors power to turn down a project that is legal under the current zoning. And it certainly doesn’t give 10 percent of the voters the power to do anything but put the up-zoning or regulation change to a vote of all the neighborhood residents.

What is quite insulting is that some current and former council members are now saying that the same Boulder neighborhood people whose votes they courted last election are selfish and mean-spirited. I suggest people look at a map, so they can see that almost all Boulder neighborhoods are diverse.

And perhaps more to the point, if city council and staff made the effort to reach out and talk to the real neighborhoods rather than doing Internet surveys that automatically favor one demographic, they might learn that Boulderites are quite happy to absorb some change. They just don’t want to have it jammed down their throats by some planner who has just moved here, or by city council members that are more interested in nice-sounding generalities rather than the on-the-ground realities.

Jan Trussell lives in Boulder.

The Comp Plan is not the answer to growth issues by Jeffrey Flynn

The Comp Plan is not the answer to growth issues by Jeffrey Flynn

When asked about the issues of growth and density in Boulder, city council members often respond by saying they are dealing with these issues in the update to the Boulder Valley Comprehensive Plan (Comp Plan). But the Comp Plan has, for the most part, become meaningless. For example, Bob Greenlee in a recent column pointed out that the city’s goal that new development pay its own way has been “entombed” in the Comp Plan for some 45 years. The reason this goal has been “entombed” in the Comp Plan, never achieving the effect of law, personifies the fact that the Comp Plan is only a policy document. Council can pick and choose from it as they please, which they have been doing for decades.

At a recent city council meeting involving a moratorium on height exemptions, one council member said council could pass an ordinance prohibiting exemptions for a specific area and, if we don’t like it in the future, we can just repeal it. It was astounding to hear the cavalier manner in which the repealing of an ordinance was discussed.

Only one way exists to achieve permanence in city government and that is to change the city charter. Livable Boulder is the genesis of two charter amendments that do just that. One amendment, “Neighborhoods’ Right to Vote,” allows residential neighborhoods to vote after land-use regulation changes are enacted for that neighborhood and 10 percent of the registered voters in that neighborhood contest those changes. I would like to repeat that because many people have mischaracterized this charter amendment. It is only after land-use regulation changes are enacted for a residential neighborhood that 10 percent of the registered voters in that neighborhood can force a vote for approval. An example of such a change would be the upzoning of a single family neighborhood to allow multifamily units. If a developer builds within the current land-use regulations, whether “by right” or through a variance or special review, then no vote can occur. If a land-use regulation change occurs across numerous neighborhoods, it could be rejected in one or more neighborhoods and accepted in one or more neighborhoods. A single neighborhood has a say only in its neighborhood, not other neighborhoods. And this amendment does not affect commercial development.

Council members have claimed that neighborhoods will not allow any changes that they deem might benefit the city as a whole. They have cast us as selfish and unwelcoming. Maybe council members should ask themselves why they have lost the trust of their citizens. The answer might be found in Aspen. Aspen just stripped its city council of the power to alter building height and parking requirements without a vote of the citizens. Aspen’s citizens obviously were tired of their city council granting changes that alter the very character of their city. People in Boulder are starting to feel the same way. And no, it is not a “gated community” amendment as some have called it. It is a reasonable approach that demands that the city cooperate with neighborhoods before they make land-use regulation changes that affect them. What is wrong with that?

In his article, Mr. Greenlee did not ask why the city never enacted into the law its goal that growth pay its way in that Comp Plan of some 45 years ago. Maybe now is the time to ask that question. Council is currently enacting an ordinance on linkage fees, which create much-needed funds for affordable housing. The linkage fees, however, do not address traffic, stress on services such as fire and police, and other impacts. The second charter amendment, “Development Shall Pays Its Way,” forces development to pay for these impacts, rather than having taxpayers pay for them. The city recently hired a national consultant to discuss impact fees. At a meeting with citizens, the consultant stated he has never experienced development not taking place because of impact fees. In fact, in a question asked by me, he said the exact opposite is the case.

If the citizens of Boulder do not want these two charter amendments, then they will reject them at the ballot. But even if this happens, the citizens will have weighed in on development issues and Boulder’s future. Let’s get these amendments on the ballot and let the citizens vote. Then our city government will know where we stand. It’s the right thing to do.

Jeffrey Flynn lives in Boulder.


Editor’s Note:  This 1600 word history of the Boulder Valley Comprehensive Plan is part of an unpublished history of PLAN-Boulder County written by then Board member Eric Karnes in 2009.

The Danish Plan and the open space program were only two parts of a more comprehensive attempt to control and manage development in Boulder. These efforts built on a tradition that was slowly evolving toward better planning.

In 1956 the City of Boulder prepared a Guide for Growth, culminating three years of public involvement and staff work. The guide was developed by an ad hoc body known as the Boulder Regional Planning Board, made up of representatives from the City Planning Board, the Boulder County Planning Commission and a school advisory committee. Several future members of PLAN-Boulder County were intimately involved in the guide process.

After a series of public meetings the Guide for Growth was adopted by both the City of Boulder and Boulder County in 1958. For the first time a planning document was adopted that required development approvals, if often cursory, by local governing bodies. In 1962 with PLAN-Boulder’s support, the Boulder County Commissioners approved a study of suburban zoning outside the county’s municipalities.

As mentioned previously, building upon the Guide for Growth local governments (mainly the City of Boulder) began to consider means of planning for the longer term. In July of 1965 voters rejected a concept known as “spokes of the wheel” which meant to direct growth by use of utility extensions.

In 1967 the first move towards a more unified planning process was made through the consideration of a Boulder Valley Comprehensive Plan. The first comprehensive plan, only one page initially, was adopted by City and County governments in 1970 after a long series of public meetings. The Comprehensive Plan included a number of topics that would become familiar issues in the future, including affordable housing, increasing residential densities and studying alternatives to cars.

One of the earliest threats to growth management in Boulder County occurred in 1971 when the Denver Water Board sought to extend water lines into southeastern Boulder County. This effort was designed to encourage development in the Broomfield area. PLAN-Boulder County and a number of community organizations, including People United to Reclaim the Environment (PURE) worked to stop the extension.

With the adoption of the original comprehensive plan public interest in limiting growth and not just managing it began to come to the fore. A failed effort in 1971 by Zero Population Growth to limit the city’s ultimate size to 100,000 was rejected by voters but the level of support (about 40%), and the defeat of four of five incumbent City Council members, encouraged local governmental leaders to scale back the population projections to a growth rate “substantially below that experienced in the 1960s.” PLAN-Boulder County was one of the community organizations supporting measures to slow the rate of population growth, although it did not support the ZPG initiative.

During the balance of the 1970s growth remained a frequent topic of debate. Several studies about growth were conducted, including a Boulder Area Growth Study which was completed in 1973. Action by the Colorado State Legislature also tightened some planning requirements and encouraged better cooperation between county and municipal governments.

In 1975 Boulder County commissioners created a County Comprehensive Plan Review Team. After some dissention between City and County officials the Boulder Valley Comprehensive Plan, originally adopted by both governments in 1970, was brought up for renewal and reconsideration in 1975. The plan was readopted by both bodies in 1978 after strong involvement by representatives of PLAN-Boulder County and included, for the first time, classifications of areas under three categories. Under the new concept, Area I was land within the City of Boulder, Area II land adjacent and suitable for future annexation and Area III land not intended for annexation for at least fifteen years. In 1990 the Comprehensive Plan update designated most of Area III as a Rural Preservation Area that would not be developed in an urban character.

Even with the adoption of the comprehensive plan there would be periodic attempts to chip away at its growth management requirements. In 1983 Boulder County Commissioners approved a policy, initially known as the Large Scale Industrial Concept, and later renamed the “performance industrial concept” to allow industrial development outside Boulder’s urban boundary. Although approved no major projects occurred, including the ill-fated attempt by NDI, Inc. to build a facility near Sixmile Reservoir.

In fact, with a change in the composition of the Boulder County Commission, attention to planning became more of a regional interest. Just two years after the “performance industrial concept” debate the County initiated a plan to bring zoning in the unincorporated areas into compliance with the Boulder Valley Comprehensive Plan.

About 38,000 acres of land was ultimately downzoned, with strong support from PLAN-Boulder County and an endorsement by the Boulder City Council. The downzoning was not without controversy, with opposition from real estate interests, some property owners and conservative political groups. A rally in Niwot in support of the plan was even disrupted by organized “property rights” activists. After the County Commission implemented the changes a recall effort was initiated against two of the commissioners but it was unable to generate enough signatures on the required petition to even make it to the ballot.

During the 2000 update process for the Boulder Valley Comprehensive Plan a statement from PLAN-Boulder County stressed several major topics for consideration:

  • Incorporation of affordable housing goals.
  • Allowing higher residential densities in appropriate areas to help justify transit.
  • Requiring affordable housing in mixed-use redevelopment of existing commercial centers.
  • Building more student housing on the University of Colorado campus, thus lessening effects in adjacent neighborhoods.
  • Considering the rezoning of some commercial and industrial areas for housing, especially affordable types.
  • Maintaining the integrity of the Area III Planning Reserve.

Due to Boulder’s relatively low population growth rate PLAN-Boulder County began to address the growth in commercial and industrial development. In 2001 PLAN-Boulder County became involved with a study of the proper balance of jobs and housing in the city. Ultimately known as the “jobs/pop” study the issue divided environmental and neighborhood activists from developers and business representatives who wanted no limits on employment growth.

The “jobs/pop” study was conducted under a task force appointed by the City Manager, on which PLAN-Boulder County was represented. Between 2001 and 2003 PLAN-Boulder offered recommendations on how to address the imbalance, which resulted in excess commuting into and out of Boulder by non-resident employees. In particular, PLAN-Boulder County suggested:

  • The desired levels of future jobs and population should be determined by the impacts on City services and amenities.
  • Priority should be given to creating housing that would be affordable for those who would be filling the new jobs in Boulder.
  • Small-scale existing retail and service industrial uses should be maintained.
  • Concurrency standards should be established, requiring new development to provide adequate public infrastructure.
  • The City should study what the current and projected water needs and carrying capacity are for the Boulder Valley.
  • Impacts should be closely monitored over a period of time.

One of the major issues was the identification of the amount of space that could be constructed in the existing commercial and industrial districts and where in the city more worker housing could be developed. Ultimately PLAN-Boulder County put its greatest emphasis on requiring that the number of expected jobs be reduced in the planning process and that development be based on concurrency, or requiring development to not exceed the carrying capacity of City services, such as utilities and streets.

PLAN-Boulder County’s input was generally ignored by City Council, which approved a policy on February 18, 2003 that PLAN-Boulder County called vague and disappointing. In particular, PLAN-Boulder County found that the policy contained no mitigation of transportation impacts nor any impact fees or concurrency requirements.

Planning for the 2005 update of the Boulder Valley Comprehensive Plan started in 2004, and would become even more controversial than that for the 2000 update. PLAN-Bolder County was once again involved in the discussions and made several recommendations for the update, including:

  • Require that population projects be updated.
  • Determine the actual carrying capacity of the Boulder Valley, especially water supply.
  • Reserve the Area III Planning Reserve beyond the 15 year horizon.
  • Retain the “four body review” requirement that requires approval of the Comprehensive Plan by the Boulder City Council, Boulder Planning Board, Boulder County Commission and Boulder County Planning Commission.
  • Create a design review capacity, including the addition of an architect to the staff of the City’s Planning and Development Services Department.
  • Reconsider addressing the imbalance in jobs and population.
  • Give attention to how infill development affects existing neighborhoods.
  • Design multi-modal corridors (streets, transit, sidewalks and bicycle lanes or paths).
  • Maintain the City’s historic preservation regulations

The 2005 update was finally approved without many of PLAN-Boulder County’s suggestions, reflecting the political views of a City Council majority more oriented to business and development. That majority was replaced by a new Council majority in 2007 that was more cognizant of Boulder’s environmental and planning traditions.

The Boulder Valley Comprehensive Plan is still in effect and is mandated for updates every five years. Both the City of Boulder and Boulder County have also been involved in numerous other planning activities, all supported by PLAN-Boulder County. In 2007, for example, both jurisdictions began to investigate ways to require building and development standards that took environmental consequences into the equation. PLAN-Boulder County supported the Boulder County Commission’s transfer of development rights concept and the Boulder City Council’s adoption of “Green Points” building codes.

In 2008 several new issues regarding development emerged. The increasing prevalence of “pops and scrapes”, or large residential additions and “McMansions” replacing smaller houses, created debate in Boulder about the affects on neighborhood character and design. PLAN-Boulder County requested City Council to initiate a study of how such development could be controlled to better address impacts on adjacent property owners and neighborhoods in general.

Housing Workshops – What about the 7,000 New Jobs, etc.?

Housing Workshops – What about the 7,000 New Jobs, etc.?

The Boulder Planning Department recently released the following data: For 10 years (2000-2010) the number of jobs in Boulder stayed level and actually dropped by 2,000 jobs in 2009. However, in just 4 years (2010-2014) Boulder has added 7,000 new jobs. In two years there will be at least 3,000-4,000 more jobs due to Google, S*Parks, etc. – and we wonder why we have traffic, housing, and infrastructure problems?

The Planning Department also announced their housing workshops for citizens to “share what they love about their neighborhood and collaborate with small groups”. Last week I went to the East Boulder workshop and couldn’t wait to discuss my ideas about slowing down job growth in Boulder and other ideas for the housing issues.

However, that did not happen. Instead of facilitating a collaborative dialogue among neighbors the Planning Department handed out a list of 12 pre-determined options for making housing more affordable and asked me to choose my top three from those options. I didn’t like any of the options.

For instance (I kid you not) the 12 predetermined options included: 1) Repeal the 55 foot height limit in Boulder, 2) Make zoning changes in neighborhoods to allow more density in quiet residential areas, 3) Increase the occupancy limits which would result in increased noise and traffic in residential areas and give landlords more opportunity to make money. Furthermore, there was no data to indicate that any of the 12 proposals would even be effective.

The following sensible options were not even considered: 1) Limit commercial growth and new jobs to limit the need for new affordable housing, 2) Increase the minimum wage to help people pay for housing in Boulder, 3) Generate more revenue from development/impact fees and taxes on short term rentals like Airbnb (if they are approved), and 4) Use the revenues to purchase and remodel existing buildings as they are put up for sale (i.e. apartments and condos).

The second half of the housing meeting was even worse. We used clickers to vote on numerous questions related to the 12 options (but no other ideas). As the results appeared on screen pictures were taken of the results – as if this totally unscientific polling would be important for future policy making.

Even more importantly there were only about 35 “citizens” at this meeting; and, as I found out, about 10-15 of the attendees didn’t even live in the East part of the city of Boulder. Some were from other cities and there was a group of about 8 unrelated people who currently live together (in violation of Boulder’s occupancy limits) in another area of Boulder. They said they were going to all the housing meetings to make sure their votes would carry a lot of weight.

Now more than ever I am concerned about the direction our city and planning department is headed. I am joining others and signing the citizens’ initiatives for “Neighborhood’s Right to Vote” and “Development Shall Pay Its Way”. These initiatives were developed by former City Council members and former City attorneys who are concerned about Boulder’s future. You can find out more about these initiatives at 4,500 signatures are needed by July 1st. I hope you will sign too!

-Sally Schneider, BA Economics, MA education, JD law A Boulder resident


A quick explanation of Neighborhoods ballot issue – Kimman Harmon

Kimman Harmon: A quick explanation of ballot issue

POSTED:   05/07/2015 07:10:44 PM MDT

Daily Camera LTE

In response to Editorial Advisory Board writer Stu Stuller’s apparent misunderstanding of the Neighborhoods’ Right to Vote initiative (“From the Editorial Advisory Board: Boulder ballot issues,” Daily Camera, May 2), here’s a quick explanation:

•Let’s say the city’s planning department pushes through a land-use change to upzone a particular neighborhood zoning within the city, say, RL-2 zoning.

•It would go forward in all RL-2 zoned neighborhoods in Boulder.

•But if one of those neighborhoods objected strongly enough, to where 10 percent of that neighborhood’s voters signed a petition calling for a referendum within that neighborhood, that neighborhood, and that neighborhood only, would get a referendum on the issue.

•Then, all the voters in that neighborhood would have an opportunity to vote on the upzoning proposal, only in relation to their neighborhood.

•If a majority of that neighborhood’s voters rejected the upzoning proposal, it would not go into effect, in that neighborhood.

•That neighborhood’s vote would only apply to that neighborhood. It would not, as Stuller incorrectly stated, affect all (or even any) other parts of the city.

•That’s what is so appealing about the initiative: it gives all neighborhoods a choice. If other neighborhoods share Stuller’s personal conclusion that policies from the city’s density-driven planning department will “benefit” them, they’d simply go along with the proposals. No action would be required. The upzoning policies would go in effect everywhere but the neighborhood that overturns it by a majority vote within that neighborhood.

•I really wish that we didn’t have to go to these measures to keep what should be kept; that we could trust the powers that be to do the right thing. And so that is why I support the Neighborhood’s Right to Vote initiative. And let’s keep the discussion to what the initiative actually states.

Kimman Harmon


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