HomeMy WebLinkAboutMemo - Read Before Packet - 1/21/2020 - Memorandum From Delynn Coldiron Re: Item #19 - Items Relating To College And Drake Urban Renewal PlanFrom: Eric Sutherland
To: City Council; Delynn Coldiron
Cc: John Duval; Carrie Daggett; Clay Frickey
Subject: For the record: Approval of Drake/College URA plan area agenda item 19.
Date: Monday, January 20, 2020 4:25:10 PM
Attachments: eMail - Re_ City_URA sales tax pledge looks dumber every time I look at it_.pdf
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