HomeMy WebLinkAboutMemo - Read Before Packet - 1/21/2020 - Memorandum From Delynn Coldiron Re: Item #19 - Items Relating To College And Drake Urban Renewal Plan (Packet #2)From: Eric Sutherland
To: Delynn Coldiron
Cc: John Duval; Carrie Daggett; Clay Frickey
Subject: Allegations of legal deficiencies in Resolution 2020 -013
Date: Tuesday, January 21, 2020 2:47:58 PM
Attachments: allegation of non compliance URA captioned.pdf
Ms. Coldiron,
I have a completed document explaining my allegations that Resolution 2020 -013 is
legally deficient. I am just going to submit this now by attachment to this email.
As explained earlier, this document assails Resolution 2020-013 as being being non-
compliant with the requirements of criteria estblished by law for the approval of a URA
plan, which is a quasi judicial action pursuant to a published opinion of the Colorado
Court of Appeals. As such, I am submitting this to the office of the City Clerk for
consideration by decision makers and also or inclusion in any record on appeal,
should such a record be made necessary by future request for certiorari review. I am
not submitting this to Council and I probably will only reference this in public
comments at the podium, if I addresss it all.
I think it might be worthwhile to remember the unsolicited advice I provided on the
occasion of the 1st reading of the Montava PUD: You can't go wrong opening a
public hearing on the time and day that was noticed. A public hearing can always be
continued to a later date. In this case, the URA law requires that approval be made
within 120 days of the date noticed.
Eric Sutherland
3520 Golden Currant Blvd.
Fort Collins, CO.
On Tuesday, January 21, 2020, 09:42:15 AM MST, Eric Sutherland <sutherix@yahoo.com> wrote:
Delynn,
Thank you for the confirmation. I have one more piece I am preparing for the
record. Because it assails the findings of fact that are currently found in Resolution
2020-013, it is reasonable to conclude that allegations made are subject to the quasi-
judicial process that the City of Fort Collins has unofficially adopted as it pertains to
communication with Council members or other decision makers. Consequently, it
will not be shared directly with Council.
(Unlike the previous email and attached file, which went directly to arguments alleging
non-compliance with the Charter, this other piece directly addresses the veracity of
findings currently found in the language of the proposed Resolution.)
Of course, I do not think this second piece is needed at this time. The City should
withdraw the resolution due to the conflict of this action with the requirements of
article II section 6 of the Charter.
In the event that the Resolution is not withdrawn, I will be submitting a copy of my
other document this evening for inclusion in the record. I have travel plans today and
will have to work on it from the road. It will not be ready for consideration until the
hearing, if then.
If it should be determined that a Resolution is not consistent with the Charter, I would
appreciate learning of this development.
Eric Sutherland
On Tuesday, January 21, 2020, 06:27:03 AM MST, Delynn Coldiron <decoldiron@fcgov.com> wrote:
Hi Eric –
Your information has been received and will be provided as part of read-before packets today.
Thanks,
Delynn
"Tell us about our service, we want to know!"
From: Eric Sutherland <sutherix@yahoo.com>
Sent: Monday, January 20, 2020 4:25 PM
To: City Council <CityCouncil@fcgov.com>; Delynn Coldiron <DECOLDIRON@fcgov.com>
Cc: John Duval <jduval@fcgov.com>; Carrie Daggett <CDAGGETT@fcgov.com>; Clay Frickey
<cfrickey@fcgov.com>
Subject: For the record: Approval of Drake/College URA plan area agenda item 19.
Delynn Coldiron and the Office of the Fort Collins City Clerk,
Please ensure that the following email is included in the record of any proceeding for
the approval of the Drake/College Urban Renewal plan, Agenda Item 19 for Jan. 21st
2020.
Also, please ensure that the attached file describing the legal infirmities of the city's
purported sales tax diversions to the URA in future years and/or the URAs claim to
control portions of city sales tax revenues appears in the record for this hearing.
The acknowledgment that this information has been received and is part of the record
of the hearing will be greatly appreciated.
Thank you,
Eric Sutherland
3520 Golden Currant Blvd.
Fort Collins, CO 80521
Members of City Council,
I am unable to reconcile the following provisions of law with the proposed action of
City Council with regard to the Drake/College URA plan. See Agenda Item 19 of
January 21, 2020.
CITY CHARTER
- Article II section 6 (every act ... placing a burden on private property or limiting the
use of private property, shall be by ordinance.)
- Article X section 2 (limiting the power of the referendum to ordinances only)
STATUTE
- CRS 31-11-101 et seq defining requirements for initiative and referendum for cities
and towns.
- CRS 31-25-105(1)(e) granting powers of eminent domain to a URA for property in a
UR plan area.
- CRS 31-25-107(4) regarding approval of a URA plan
CONSTITUTION
- Article V section 1(9)reserving the power of initiative and referendum to the electors
of Colorado cities and towns.
- Article XX section 6
CASE LAW
City of Aurora v. Scott, 410 P. 3d 720 - Colo: Court of Appeals, 1st Div. 2017
Margolis v. District Court In and For County of Arapahoe, 638 P. 2d 297 - Colo:
Supreme Court 1981
Woolverton v. City & County of Denver, 146 Colo. 247, 361 P.2d 982 (1961)
City of Greenwood Village v. Fleming, 643 P. 2d 511 - Colo: Supreme Court 1982
City of Longmont v. Colo. Oil and Gas Assn., 369 P. 3d 573 - Colo: Supreme Court
2016
City Council simply may not adopt the proposed urban renewal plan by resolution. It
must be concluded that the electors of the City of Fort Collins have established that
any action of Council that places a burden upon or limits the use of private property
must be taken by ordinance in accordance with all the requirements for enacting an
ordinance found in the Charter. Any action that subjects private property to
governmental taking by eminent domain unquestionably places a burden on private
property.
Although not necessary, it is alleged here that approval of the Drake/College URA
plan makes an appropriation since City Council is, for all practical purposes, agreeing
that future sales tax revenues will be appropriated to the URA. For this reason,
another provision of Article II section 6 requiring "every act ... making an appropriation
.... shall be by ordinance" would also apply. Of course, this multiple year financial
obligation is unsound for several other reasons as previously described. See the
attached file with previous emails. Future Councils are under no obligation to transfer
or appropriate any sales tax revenue to the URA and neither the URA or any other
person or entity may claim sales tax revenue or expect to receive sales tax revenues
without appropriation by Council. Regardless of the legal infirmities of the sales tax
allocation scheme contemplated by the UR plan, the intent of the URA plan is
unquestionably appropriation of sales tax revenues of the City of Fort Collins.
Consequently, Council may only take this action by ordinance.
At its terminus, any investigation into whether adoption of a UR plan is subject to
referendum is dispositive of the issue. In order to harmonize the reserved right of
referendum of Article V of the constitution with the powers of referendum in the City
Charter, it must be concluded that Council can only approve the UR plan by
ordinance.
As stated in Woolverton and Fleming, in matters of state and local interest, a Home
Rule municipality may supplement state law with more restrictive or expansive
requirements. The adoption of a UR plan is a matter of state and local interest.
There is no evidence whatsoever that the state legislature intended to completely
occupy the field of legislative procedure of a city or town. No argument may be made
that the legislature sought to preempt the more restrictive procedure of action by
ordinance or any part of the City Charter of the City of Fort Collins. See Longmont v.
COGA.
Finally, there is no conflict between the statute and the charter. Interestingly, state
statute provides no definition of resolution or prescription for taking an action by
resolution.
Consequently, Council is not approaching the approval of a UR plan at Drake and
College in a manner consistent with the requirements of the City Charter of the City of
Fort Collins. In contrast to the language of CRS 31-25-107(1)(a) prescribing an
action whereby a governing body finds that a plan area is blighted, the requirement
for approving a plan area has no prescription for how the approval shall be made.
Pursuant to the City Charter, such an approval must be done by ordinance, not by
resolution.
Since this is a matter that arises from the Charter of the City, a dispute alleging failure
to abide by the Charter falls under the jurisdiction of the municipal court and also the
district court. ( District courts have jurisdiction over declaratory judgment actions
involving Charter provisions, Public Service v. City of Boulder, but not over
ordinances of the city.) Standing is guaranteed to all taxpayers of the Poudre School
District due to the diversion/misuse of tax dollars attributable to PSD's statutorily
mandated mill levy under the collapsed standard of standing applicable to taxpayer
lawsuits. Barber v. Ritter
Furthermore, because the substance of the allegations here implicates rights of
citizens under the constitution and Charter, (as opposed to rights under the UR
statutes), a future legal challenge is not subject to the time limitations of Rule 106(b).
Eric Sutherland
3520 Golden Currant Blvd.
Fort Collins, CO 80521
FORT COLLINS CITY COUNCIL
Address: 300 Laporte Avenue
Fort Collins, CO 80521
THE CITY OF FORT COLLINS, a home rule municipality in the
state of Colorado
v.
The citizens of Fort Collins and taxpayers of the Poudre
School District
▲ COURT USE ONLY ▲
Interested party:
Eric Sutherland, pro se
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone Number: (970) 224 4509
E-mail: sutherix@yahoo.com
ALLEGATIONS OF LEGAL DEFICIENCIES IN RESOLUTION 2020-013
Resolution 2020-013, as presented in Agenda Item #19 in the published
agenda for the Jan. 21st, 2020 City Council meeting, is legally deficient. Approval
of this Resolution would be an abuse of discretion for the reasons described below.
Allegations of inconsistency with the Fort Collins City Charter have already been
submitted into the record,1 and this information supplements the record
1
An email sent and received by the City Clerk alleged that the subject matter of the proposed
action of REsolution 2020-013 must be by ordinance, not resolution pursuant to Article II section
6 of the City Charter of Fort Collins. This allegation is substantiated by law regarding rights of
referendum in the Charter and constitution.
accordingly.
The FC URA has implemented an uncodified system of limiting the access
of concerned parties to the decision makers engaged in quasi judicial proceedings.
The approval of a URA plan is a quasi-judicial proceeding. City of Aurora v.
Scott 410 P. 3d 720 - Colo: Court of Appeals, 1st Div. 2017. In order to remain
consistent with this policy, this document is prepared for review by decision
makers as part of the record of the proceeding and is not being communicated
directly to the decision makers. This policy suffers from logical and legal
deficiencies, but an abundance of caution recommends following the policy at this
time. Unlike the allegations mentioned in footnote 1, the allegations of this
document assail the findings of the decision makers as they pertain to certain
criteria established by law as represented in the language of Resolution 2020-013.
To the extent that any finding of Council holds that an urban renewal board
took any action as a prerequisite to Resolution 044, this finding is a manifest
error of law and abuse of discretion. The Fort Collins Urban Renewal
Authority has never properly taken any action in accordance with state law
and, in particular, has never been duly convened in accordance with the
direction of the Colorado General Assembly provided by legislative
amendments in 205 and 2017.
A. Facts
There appear to be no facts underlying the issues in dispute. All parties
appear to agree that the Fort Collins Urban Renewal Authority or FC URA was
duly created in accordance with state law and that the FC URA has never been
terminated in the manner prescribed by statute. All parties appear to agree that, at
the time that the City of Fort Collins elected to create the FC URA in 2004, the
City Council of the City of Fort Collins elected to designate the governing body of
the City of Fort Collins as the Urban Renewal Authority pursuant to C.R.S. §31-
25-115. All parties appear to agree that, from the time of its creation to
approximately 2018, the FC URA had been governed by the seven persons who, at
any given time, had been duly elected or appointed to the office of mayor or
council member of the City of Fort Collins. All parties appear to agree that the
seven members of City Council serving on the governing body of the FC URA
now and in the past have taken their positions as a sort of ex officio officer by
virtue of their election or appointment to the City of Fort Collins City Council. All
parties also appear to agree that, at the present time there are 11 persons that
purport to govern the FC URA. Those persons include seven persons who
currently serve on the Fort Collins City Council, 1 county representative, 1 school
board member, 1 representative of special districts and one at-large member
appointed by the mayor and approved by City Council.
On the basis of the undisputed facts listed in the previous paragraph, it is
clear that throughout the entire history of the FC URA, the governing body of the
City of Fort Collins never acted as the urban renewal authority as allowed under
C.R.S. §31-25-115. Instead, those persons who were elected to or appointed to
positions on the Fort Collins City Council pretended to be ‘commissioners’
belonging to and composing a ‘board of commissioners’ that acted as the
governing board of the urban renewal authority of Fort Collins. Of course, no
person had ever been elected or appointed to the office of ‘commissioner’ and
there was and still is no law that could ever be construed to provide for the
automatic appointment of a person who was elected or appointed to the City
Council to the office of ‘commissioner’. To the contrary, the urban renewal
statutes have always proscribed the appointment of more than one official of the
city or City of Fort Collins government to the board of commissioners. C.R.S.
§31-25-104(2).
B.1 Law applicable to the authority of any person exercising governmental
power
The requirements of Article XXI section 4 of the Colorado constitution
must be strictly construed in interpreting who is and who is not a Commissioner of
the Board of Commissioners of an Urban Renewal Authority. Article XXI section
4 contains a restatement of the common law principle that all persons exercising
governmental authority must be properly elected or appointed in accordance with
law. Consequently, it is unquestionable that seven out of the eleven persons
purporting to be URA commissioners may not exercise governmental authority
since none of these seven persons was ever elected to or appointed to that position.
No plausible argument may be advanced that the members of the Fort Collins City
of Fort Collins Council may meet to discuss the business of the FC URA in any
setting other than a duly convened meeting of the Fort Collins Council … and that
appears to have never happened.
B.2 Law applicable to the composition of the governing board of an urban
renewal authority.
The mode of governance whereby the City of Fort Collins Council may act
as the urban renewal authority of Fort Collins (or as part of an 11 member urban
renewal authority) was eliminated as an option for existing urban renewal
authorities by legislation duly adopted by the Colorado General Assembly and
signed by Governor John Hickenlooper in 2015, HB15-1348.2 These legislative
changes were subsequently reinforced by a second bill, SB17-277, that was also
signed into law by the Governor. Consequently, from at least January 1, 2016 to
the present, the FC URA was required by direction of the General Assembly to
form a Board of Commissioners in compliance with the provisions of C.R.S. §31-
25-104(2) as that sub-section was amended in 2015. This is to say that, even if the
curious ex officio model of the FC URA’s own invention was deemed to be
legitimate, that model has been voided by legislative enactment of the General
Assembly.
In 2015, the Colorado General Assembly reacted to controversy and
dissatisfaction with urban renewal authority by passing HB15-1348,
CONCERNING MODIFICATIONS TO STATUTORY PROVISIONS
GOVERNING URBAN REDEVELOPMENT TO PROMOTE THE EQUITABLE
FINANCIAL CONTRIBUTION AMONG AFFECTED PUBLIC BODIES IN
CONNECTION WITH URBAN REDEVELOPMENT PROJECTS
ALLOCATING TAX REVENUES. The bill was signed by Governor
Hickenlooper and became effective in August of 2015. As relevant here, the Act
required that the Board of Commissioners of all Urban Renewal Authorities in the
state be reformed to include 13 Commissioners, 3 of which must be representatives
of school, county and special districts overlapping the municipality in which the
URA is organized. See especially §31-25-104(2) as amended by HB15-1348 as
2
An existing URA that has been duly reformed to the Board of Commissioners
model prescribed in C.R.S. §31-25-104(2) in accordance with the requirements of
HB15-1348 may still transition to a model in which the governing body of the
municipality is joined by additional commissioners brought in from the local
schools, county government and special districts. See C.R.S. §31-25-115.
signed by the governor. This requirement superceded any other means by which
an urban renewal authority had been organized or constituted in the past. URAs
that had been organized in accordance with §31-25-104(2) prior to August 2015
were required to comply with the requirements of the new law. URAs such as the
FC URA that had elected to apply §31-25-115 were also required to comply with
the new law. C.R.S. §31-25-104(2) now states:
(2) (a) (I) Except as provided in subsection (2.5) of this section, an authority
consists of thirteen commissioners, not fewer than ten of whom must be
appointed by the mayor, who shall designate the chairperson for the first year.
In order to represent the collective interests of the county and all taxing bodies
levying a mill levy in one or more urban renewal areas managed by the authority,
referred to in this part 1 as an "urban renewal authority area", other than the
municipality, one such commissioner on the authority must be appointed by the
board of county commissioners of the county in which the territorial boundaries of
the urban renewal authority area are located, one such commissioner must also
be a board member of a special district selected by agreement of the special
districts levying a mill levy within the boundaries of the urban renewal authority
area, and one commissioner must also be an elected member of a board of
education of a school district levying a mill levy within the boundaries of the
urban renewal authority area. If the urban renewal authority area is located within
the boundaries of more than one county, the appointment is made by agreement
of all of the counties in which the boundaries of the urban renewal authority area
are located.
(II) If no county, special district, or school district appoints a commissioner to
the authority, then the county, special district, or school district appointment
remains vacant until such time as the applicable appointing authority makes the
appointment pursuant to this paragraph (a).
(III) If the appointing county is a city and county, the requirements of this
paragraph (a) pertaining to county representation on the authority board need not
be satisfied.
(IV) All mayoral appointments and chair designations are subject to approval
by the governing body of the municipality within which the authority has been
established. Not more than one of the commissioners appointed by the
mayor may be an official of the municipality.
(V) In the event that an official of the municipality is appointed as
commissioner of an authority, acceptance or retention of such appointment is not
deemed a forfeiture of his or her office, or incompatible therewith, and does not
affect his or her tenure or compensation in any way. The term of office of a
commissioner of an authority who is a municipal official is not affected or
curtailed by the expiration of the term of his or her municipal office.
§31-25-104(2) as amended by HB15-1348, emphasis added.
In adopting the amendments to §-104(2), the General Assembly made only a
single exception to the requirement that all URAs consist of 13 commissioners
with the added requirement that 3 of those 13 commissioners be representatives of
schools, county government and special districts from the effective date of HB15-
1348 (Aug. 2015) forward. That single exception to §-104(2), §-104(2.5) states:
(2.5) When the governing body of a municipality designates itself as the
authority or transfers an existing authority to the governing body pursuant to
section 31-25-115 (1), an authority consists of the same number of
commissioners as the number of members of the governing body. In addition,
in order to represent the collective interests of the county and all taxing bodies
levying a mill levy within the boundaries of the urban renewal authority area other
than the municipality, one additional commissioner on the authority must be
appointed by the board of county commissioners of the county in which the territorial
boundaries of the urban renewal authority area are located, one additional
commissioner must also be a board member of a special district selected by
agreement of the special districts levying a mill levy within the boundaries of the
urban renewal authority area, and one additional district levying a mill levy within the
boundaries of the urban renewal authority area. If the number of members of the
governing body causes the authority to have an even number of commissioners, the
mayor shall appoint an additional commissioner to restore an odd number of
commissioners to the authority. As applicable, the appointment of the county, special
district, and school district representatives on the authority pursuant to this
subsection (2.5) must be made in accordance with the procedures specified in
subsection (2) of this section.
C.R.S. §31-25-104(2.5) as amended by HB15-1348, emphasis added
The tense of the emphasized sentence in the citation of §-104(2.5) above
clearly shows that the requirements of (2.5) only apply on the occasion when a
governing body is designating itself as the Board of Commissioners for the first
time, which only happens when a URA is created in a municipality for the first
time. This emphasized sentence is identical to language which appears in §31-25-
115(1.5), which was added to statute at the same time that §-104(2.5) was added.
(HB15-1348). The General Assembly did NOT adopt legislation that stated
“When the governing body of a municipality has designated itself”. Thus, the
intent of the General Assembly, which was expressed twice in duplicative
provisions of law, was clearly that the requirements of §-104(2.5) was NOT
applicable to the FC URA or other URAs that had been created by election of the
governing body of the municipality to designate itself as the authority pursuant to
§-115(1). Rather, the plain and simple language of the statute prescribes that the
composition of the governing body of all URAs was to be reformed in accordance
with the direction given by HB15-1348.
Additionally, the emphasized sentence in the preceding paragraph
unquestionably precludes any possibility that the General Assembly had ever
contemplated something akin to the ex officio model that has been practiced
without any basis in law by the FC URA since its creation. The sentence states
that an authority consists of the same number of commissioners as the number of
members of the governing body. The emphasized sentence does not state that the
authority consists of the same members of the governing body. Had the General
Assembly meant to authorize a governance model similar to that improperly used
by the FC URA, it could have and would have expressly provided for that model.
The applicability of the previously cited subsections has been established in
legislation on two separate occasions. In a rare if not unprecedented action, the
General Assembly had originally adopted HB15-1348 with substantive elements of
law pertaining to the applicability of the amendments written into the effectivity
clause of the session law. Generally, the effectivity clause of legislation deals
only with two subjects: 1) temporal details of when the enactment becomes the
law, and/or 2) if the enactment is subject to referendum by petition. In this case,
however, the effectivity clause was co-opted to include substantive details of
legislative intent. The final effectivity clause from the 2015 session law stated:
SECTION 4. Act subject to petition - effective date - applicability.
(1) This act takes effect at 12:01 a.m. on the day following the expiration of the
ninety-day period after final adjournment of the general assembly (August 5, 2015, if
adjournment sine die is on May 6, 2015); except that, if a referendum petition is filed
pursuant to section 1 (3) of article V of the state constitution against this act or an
item, section, or part of this act within such period, then the act, item, section, or part
will not take effect unless approved by the people at the general election to be held
in November 2016 and, in such case, will take effect on the date of the official
declaration of the vote thereon by the governor.
(2) This act applies to:
(a) Municipalities, urban renewal authorities, and any urban renewal
plans created on or after January 1, 2016; or
(b) Urban renewal plan amendments or modifications adopted on or after
January 1, 2016, that include any of the following: Any addition of an urban
renewal project; an alteration in the boundaries of an urban renewal area; any
change in the mill levy or the sales tax component of any such plan, except
where such changes or modifications are made in connection with refinancing
any outstanding bonded indebtedness; or an extension of an urban renewal plan
or the duration of a specific urban renewal project regardless of whether such
extension or related changes in duration of a specific urban renewal project
require actual alteration of the terms of the urban renewal plan.
Final Act signed by Governor Hickenlooper, HB15-1348 and appearing in the
2015 Session Laws. (emphasis added)
No part of the effectivity clause that appears in the 2015 session laws was
ambiguous or problematic. However, the fact that substantive language regarding
applicability did not appear in the text of the revised statutes that appeared in
bound volumes of the Colorado Revised Statutes and also on the official
Lexis/Nexis website was a problem. Consequently, the General Assembly found
it prudent to migrate the language in the effectivity clause of the 2015 session law
directly into the text of the statute to better express the legislative intent. This
change was done in 2017 by SB17-279, CONCERNING CLARIFICATION OF
THE APPLICABILITY PROVISIONS OF RECENT LEGISLATION TO
PROMOTE AN EQUITABLE FINANCIAL CONTRIBUTION AMONG
AFFECTED PUBLIC BODIES IN CONNECTION WITH URBAN
REDEVELOPMENT PROJECTS ALLOCATING TAX REVENUES. In addition
to moving the substantive details of the applicability of the 2015 amendments
directly into the pages of the C.R.S., SB17-279 also provided a much broader
explanation of the nature of urban renewal authority plan amendments and
modifications that were covered by the 2015 changes. As relevant here, SB17-279
added §31-25-107(9.7)(b), which states:
(9.7) Notwithstanding any other provision of law:
….
(b) The requirements of section 31-25-104 (2)(a), (2)(b), and (2.5), section 31-
25-115 (1.5), the introductory portion of subsection (9)(a) of this section,
subsections (9)(a)(II), (9)(i), and (9.5) of this section, as added by House Bill 15-
1348, enacted in 2015, and as amended by Senate Bill 16-177, enacted in 2016,
and the requirements of subsections (7) and (7.5) of this section as amended by
Senate Bill 17-279, enacted in 2017, apply to municipalities, urban renewal
authorities, and any urban renewal plans created on or after January 1,
2016, and to any substantial modification of any urban renewal plan where the
modification is approved on or after January 1, 2016
C.R.S. §31-25-107(9.7) (emphasis added)
The preceding paragraphs of this section and the citations of statute they
contain lay out the totality of the law that applies to the composition of the Board
of Commissioners of a URA after August, 2015. These citations of law are
presented here in isolation and with the key phrases highlighted for emphasis.
There are no other parts of the law that may be construed to disturb the plain and
simple meaning of the citations as they appear on these pages. Furthermore, even
if there were ambiguities, and there are none, examination of the legislative history
of HB15-1348 clearly shows that language of the effectivity clause evolved by
amendment as it first passed the House and was then subsequently amended in the
Senate. These amendments dispensed with language adopted in the House that
might have made room for a narrower interpretation of the applicability of the Bill
and replaced it with the existing language that is broader in applicability and less
susceptible to misinterpretation. Thus, if it were necessary to clear up ambiguity in
the language of the law, and it is not, rules of statutory interpretation that allowed
for review of the legislative history of the amendments would unquestionably
reinforce the interpretation asserted here.
The simple truth here is that all urban renewal authorities in the state of
Colorado, (except those URAs associated with a city and county such as Denver),
were required to comply with the new law. The municipalities associated with
each URA, such as the City of Fort Collins, were directed by the General
Assembly to make that happen by virtue of Mayoral appointments and subsequent
approvals of each appointee by the governing body of each municipality. The
City of Fort Collins has failed to comply with this requirement. As a consequence
no person or corporate entity has wielded the authority of a URA in the City of
Fort Collins for at least 3 years and most likely never. Rather, a governance
structure that was never lawfully exercised to begin with as described in Part 1
above has, through an process of metamorphosis of the City of Fort Collins' own
invention, evolved into a new era where the law requires a different result that
bears no similarity to the governance model prescribed by the URA law.
It is worth noting here that the General Assembly did leave a path open for
the governance of an existing URA to revert back to something similar to that
which had been authorized by §31-25-115(1). See §31-25-117(1.5). That change,
however would require voter approval and would only be available after an
existing URA had complied with the requirements of §31-25-104(2). However,
even in that instance the Board of Commissioners of the URA would necessarily
include school, county and special district representatives as required by §-
104(2.5).
It is noted here that the FC URA and many others in Colorado have adopted
an absurd interpretation of the applicability of the 2015 and 2017 legislative
amendments. This absurd interpretation takes the phrase:
Municipalities, urban renewal authorities, and any urban renewal plans
created on or after January 1, 2016;
which appears in both the effectivity clause of the 2015 legislation as well as the
body of the statute in the 2017 legislation, and concludes that the legislature
intended that the changes introduced by HB15-1348 only apply to new urban
renewal authorities. This interpretation suffers from three deficiencies. First, if
the legislation only applied to new urban renewal authorities created after Jan. 1,
2016, then the vast majority of the changes made by legislation including the
requirements for the composition of the governing boards of URAs would be
without effect. Second, if the legislation only applied to new urban renewal
authorities created after Jan. 1, 2016, then the legislation would also have to
interpreted to only apply to new municipalities. There are not many new
municipalities created in Colorado in recent times. A substantial portion of the
2015 legislation controlled the activities of municipalities. These provisions would
also be completely without effect in all situations save where a new municipality
was created after January 1, 2016 … which then created an urban renewal
authority to remedy the urban blight that suddenly sprung up in the brand new city
or City of Fort Collins. Third, as mentioned above, the language of the effectivity
clause was modified by amendment in the Senate prior to final adoption of HB15-
1348. The unamended version of this language was ambiguous at best and
consequently it could be interpreted in such a manner as the FC URA has
disingenuously chosen to interpret the law. Specifically, the word
“Municipalities” was added to the phrase “Municipalities, urban renewal
authorities, and any urban renewal plans created on or after January 1, 2016;”
The addition of this word, “Municipalities”, cemented the intent of the legislature
that the modifier “created on or after January 1, 2016” applied only to the last
antecedent; i.e “urban renewal plans”.
Accordingly, I request that Resolution 2020-013 of the Fort Collins City
Council be rejected by vote of Council on the basis that all prerequisites required
by law that require action by an urban renewal authority have not been taken by a
properly constituted Urban Renewal Authority.
__________________________ Dated this 21th day of January, 2020
Eric Sutherland, Appellant