Colorado Supreme Court Decision - Initiative and Referendum Under Attack?



Citizens of Colorado have had the ability to circulate petitions to place issues on the ballot, or to challenge decisions of their elected representatives, since 1910. For local jurisdictions this power has been seriously eroded by a 2013 court decision. This site presents a unique opportunity to review a supreme court ruling in a setting which contains all the supporting information relevant to the case. In other words, you can actually read the petitions the court refused to allow on the ballot.   Start here: The Citizen Initiative in Colorado  


A more recent action in the spring of 2015 may be an indicator of the full consequence of the state supreme court decision. The clerk of Pitkin County refused for circulation another petition designed to provide local matching funds for construction of a new Entrance to Aspen. There is no basis for this rejection in state law - the clerk appears to feel empowered to reject petitions on nearly any grounds.


Note:  Those interested primarily in the highway issue may find it useful to review the historical synopsis which begins on Page 11.


The Practical Effect of the Colorado Supreme Court Decision on the Original Problem


Note:  Some familiarity with the Aspen area is necessary to completely understand the brief discussion which follows.  If you have arrived at this site from some other area for the purpose of learning about the impact the decision has on the Initiative and Referendum power, the link above may be all you need.  However, the links in this article are also relevant to the analysis of the court decision, so the context provided here may still make it easier to understand how all the pieces fit together. 


It is difficult to imagine any other community suffering the politically self-inflicted wound we call the Entrance to Aspen.


The actual physical problem is really simple.  The highway needs to be straightened out, and two additional lanes that everyone can use need to be added.  Eliminate the S-curves and the bus lanes, and say goodbye to massive traffic jams.


It’s been seven years since the requisite number of Aspen residents signed initiative petitions to place on the ballot a proposal to fix the physical problem.  It has been two years since the Colorado Supreme Court disallowed those ballot questions by ruling that the decision on what to do with the entrance is entirely an administrative matter - which must therefore be left to elected officials.


While the court decision did major damage to the initiative process in Colorado, it actually simplified the situation in regard to the Entrance to Aspen.  Any three rational, pragmatic members of city council can negotiate a new right-of-way agreement with the Colorado Department of Transportation (CDOT) and proceed with the solution.


There are three necessary elements to a new highway entrance.  You need an Environmental Impact Statement (EIS) if you want to pay for the entrance with federal money.  Voter approval is needed for a change in use of land acquired for open space.  An existing right-of-way agreement with CDOT, which calls for an option which can’t be built, needs to be amended.


In regard to item two, there have been three approvals for a change in use in open space.  In 1996, voters approved a two lane highway with light rail tracks, subject to the later approval of design and financing of said railroad.  No such approvals were ever granted, despite several attempts.  An approval with contingencies which are never satisfied is no approval at all, and the 1996 vote is irrelevant.


However, prior to learning of its irrelevance, city council used the 1996 vote as the basis for the core elements of the right-of-way agreement, which is why CDOT holds an easement on which nothing can be built.


In 2007, voters approved a different change to open space; bus-only lanes from Buttermilk to the roundabout, but no farther.  The right-of-way agreement was amended to reflect this change, and the EIS was updated. 


At this point it is time to note that the “preferred alternative” described in the EIS Record of Decision calls for a four lane highway (two bus-only lanes) to be built through the Marolt property, connecting to Main Street over a new bridge, but only as a first phase.  At some later date, when light rail is built, the two bus lanes would be torn out so that the highway would be converted back to two lanes.  (If you are relatively new to Aspen you might think I’m kidding, but no.)


The current preferred alternative is not the only solution which can be constructed and still qualify for federal funding.  In 2003, a group called the Friends of Marolt Park challenged the “phased” bus-lanes-first, light-rail-later plan, claiming it could not be built without going through the equivalent of a new EIS process.   The Tenth Circuit Court of Appeals ruled against them, finding that any alternative which had been “fully evaluated” could become the new preferred alternative.  This helped pave the way (sorry) for the bus lanes a few years later.


The first of the three voter approvals for a change in use of open space is a “clean” authorization – there are no contingencies for later approval – and it applies to the entire length of the entrance.  This approval from 1990 is compatible with HOV lanes like the ones between Buttermilk and Basalt, so bus-only lanes are not required.


So, the only physical difference between the 1990 highway approval and the first phase of the current preferred alternative is the wording on the signs at the side of the road.  The approval is less restrictive than the bus-only designation from 2007, but now that we have the recent supreme court decision, we know that isn’t a problem.  When you have two approvals which contradict each other, it simply means that your elected officials get to choose which one they want to employ.


If it appears I am not taking the voter approval aspect too seriously, you can thank the courts.  The great big hairy controversy we think exists around the entrance was cut down to size by the Court of Appeals, as upheld by the Colorado Supreme Court:    “The change in use is indeed administrative in character - reconfiguring lanes.”  So, voter approval falls somewhere between dotting an “i” and crossing a “t” as a minor procedural matter in the eyes of the court – which won’t have any problem whatever if a city council wants to fulfill that requirement with a vote from 1990.


Of course, if three candidates were to stand up and pledge to negotiate a new right-of-way agreement based on the 1990 voter approval the sky would fall on their heads.  They would be vilified, denigrated, accused of nefarious and evil political alliances, the whole bit.  So, no, you can’t have three rational and pragmatic people on the Aspen city council at the same time, at least not yet.


Are you in your 20s to early 50s, have a long term intent to stay in Aspen, and think you might want to see the entrance fixed someday?  You need to download the information on this site– it will tell you almost everything you need to know, but it won’t be here forever.  Then you need to be patient until enough members of the baby-boom generation die off, at which point the Aspen political establishment will finally lose its grip on power.


Meanwhile, if you are in the legal profession and think you might ever need to advise someone regarding the initiative process, the complete analysis of the Colorado Supreme Court decision is probably required reading.



This page was originally used to comment on the passage of the bus lane ballot question. We left the information below for historical interest.


What About The May Election?

Will this affect the voter approval for bus lanes that Aspen voters passed in 2007?


The May, 2007, voter approval will be altered only so far as the wording on the signs alongside the highway. However, if the Entrance Solution proposals are accepted, the altered signs will be significant to highway users because the two new lanes will not be restricted to buses only. By making the increased highway capacity available to the general public, the mile long traffic backups we’ve been experiencing for so long will finally be gone.


What about the claim that any alteration of the approvals will require an additional two years and two million dollars for a Supplemental EIS and a new Record of Decision?


While there may be some proposals out there for which that might be true, it does not apply to either of the proposals we are offering. Remember, the federal courts have already ruled on this issue in a lawsuit filed by the Friends of Marolt Park:

“The Agency has determined a supplemental EIS is not required where the ROD selects an option not identified as the preferred option in the final EIS, as long as the selected option was fully evaluated. 23 C.F.R. 771.130(a)(1),(b)(2); See Marsh, 490 U.S. at 374 (noting that a supplemental EIS is only required where the impacts of new decision have not already been considered)."


All of the elements of the two designs for which we seek voter approval survived the various screening processes of the Environmental Impact Statement process, and most were reviewed in the recently completed written reevaluation process.


What if the Aspen city council refuses to request the necessary approvals?


We are currently working on a county wide initiative to finance Entrance to Aspen construction. In the past, we have been reimbursed by the state from future years’ budgets when highway improvements are initially funded locally.


What does that have to do with the city requesting approvals?


The EIS process is only necessary to qualify for federal funding. By using local tax sources we don’t actually need to satisfy that process to proceed with construction. Consequently, inaction or obstruction on the part of city council will not delay a start date, but it could interfere with the ability of the county to work out a reimbursement plan with the state. We would like to think that the Aspen city council won’t do anything that silly.


What if the Pitkin County commissioners refuse to proceed with a financing proposal approved by county voters?


There’s another county election in November of 2010.


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