Percy v. Fielder

Citations: 12 P.3d 246; 2000 Colo. LEXIS 1240Docket: Nos. 00SA175, 00SA177, 00SA178, 00SA179

Court: Supreme Court of Colorado; October 23, 2000; Colorado; State Supreme Court

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Four ballot title review proceedings were consolidated regarding the proposed initiative "Citizen Management of Growth." Registered electors initiated these proceedings under section 1-40-107(2) to evaluate the actions of the initiative title setting board (the Board) concerning the title, ballot title, and submission clause for Initiative 1999-00, 256. The initiative, filed by proponents John Fielder and Elise Jones on April 21, 2000, seeks to amend the Colorado Constitution by adding a new article XXVIII, regulating local government development approvals based on designated development areas or voter-approved growth maps.

The Board scheduled a hearing for the Initiative on May 3, 2000, where it set the titles and summary. Following this, petitioners filed motions for rehearing on May 10, which the Board partially granted after a hearing on May 17. The review proceedings raised procedural and substantive issues, primarily around the Board's jurisdiction, the single subject of the Initiative, and the accuracy of the titles and summary.

The court concluded that the Board had the jurisdiction to set the titles, the Initiative adhered to the single subject rule, and the titles and summary were not misleading. The jurisdictional challenge raised by petitioner Jerry G. Percy argued that the Board lacked authority due to four amendments made to the Initiative before its submission to the Secretary of State. Under Article V, section 1(5) of the Colorado Constitution, the original draft must be reviewed by legislative offices prior to title fixing, but these offices cannot mandate changes or set submission deadlines. The court affirmed the Board's actions on July 3, 2000, with an opinion to follow.

Section 1-40-105, 1 CRS. 1999 outlines the procedural requirements for proponents of initiative petitions for proposed laws or constitutional amendments. Initially, the original typewritten draft must be submitted to the legislative council and the office of legislative legal services for review before any elector signs it. Within two weeks of submission, a public meeting is held where comments on the petition’s format and content are provided, including suggested editorial changes for plain language compliance. After this meeting, proponents can amend the petition based on the feedback received. However, if substantial amendments are made that are not direct responses to the comments, the amended petition must be resubmitted for additional comments before it can be submitted to the Secretary of State.

In a specific case referenced, the proponents made four substantial changes to the Initiative without resubmitting the updated version to the directors for comment. Percy argues that this lack of resubmission invalidated the Board's jurisdiction to set titles and summaries for the Initiative. The proponents, along with the Board, contend that the changes either directly responded to the directors' comments or were not substantial enough to warrant resubmission, thus complying with the requirements of section 1-40-105(2). Percy identifies specific amendments related to growth area maps that he believes necessitated resubmission to the directors.

The final version submitted to the Secretary of State (section 4(4)(c)) omits the third requirement previously highlighted, which Percy argues is a significant change not directly responding to directors' comments. However, the directors’ substantive question 3 addressed the Initiative's impact on local governments' home rule powers, particularly regarding site-specific development applications and existing agreements. In response, the proponents removed section 4(5)(c) and references to urban growth boundaries and intergovernmental agreements, which was deemed a direct response to the directors' inquiry, thus negating the need for resubmission.

The second change involved adding "local government" before "revenue sharing arrangements" in section 5(2)(a). Percy claims this addition is significant; however, since section 5 pertains to local governments, this was interpreted as a clarification rather than a substantive amendment.

The third change in section 6 modifies the language concerning development within a voter-approved growth area. The final version replaces "including enterprise districts or funds" with "enterprises." This change responds to directors' question 23(c), which sought clarification on whether "enterprise districts or funds" should be considered political subdivisions. The proponents aimed to resolve ambiguities highlighted in earlier drafts, thus not necessitating resubmission of the initiative to the directors.

Percy claims that a change in section 10 of a proposed initiative—which altered the phrase from "the constitutional protections" to "other constitutional protections"—necessitated resubmission to the directors. However, this modification was determined to be a clarification rather than a substantive change, thus not requiring resubmission. 

All petitioners argue that the Board improperly set the title and summary for the Initiative, asserting it violates Colorado's single-subject requirement under article V, section 1(5.5) of the Colorado Constitution. This provision mandates that no measure proposed by petition can contain more than one subject, clearly expressed in its title. If a measure encompasses multiple subjects that cannot be clearly expressed in the title, it cannot be submitted for public vote. 

Previous case law establishes that a proposed initiative violates the single-subject requirement if it addresses more than one distinct purpose that is not interconnected. Conversely, if a measure aims to fulfill a general objective, it can include various provisions that are necessary to achieve that goal. The current proposal is argued to encompass a single subject, despite objections regarding its multiple perceived independent purposes, such as preserving scenic vistas, alleviating tax burdens, and protecting neighborhoods. Percy asserts that the Initiative includes provisions unrelated to its main subject, such as specific exclusions from the definition of "development" and requirements impacting local governance and financial limitations. Nonetheless, the legal framework suggests that as long as the initiative maintains a singular overarching purpose, it does not violate constitutional standards.

Petitioners Ray Christensen, Brad Anderson, and Kent Lebsack (referred to as the Christensen petitioners) argue that the measure in question contains at least three distinct subjects: (1) voter approval criteria for growth areas primarily designed for urban and residential development; (2) limitations on voter choice through the requirement for central water and sewer services in approved areas; and (3) restrictions on certain agricultural land uses, particularly confined animal feeding operations. 

Petitioner Robert A. Lembke contends that the measure seeks to change the authority of home rule cities regarding land use decisions. It mandates coordination of growth maps among affected jurisdictions, granting veto power to those outside home rule cities, which he argues separates the issues of growth control in home rule cities from statewide concerns. Lembke highlights that limiting "regular elections" to a single day each year for growth map approvals shifts power away from home rule cities. He also raises concerns about potential impairment of vested property rights and the measure's impact on land use regulation, claiming it undermines local planning and zoning authority. Additionally, he asserts the measure restricts landowners' rights to petition the government for grievances.

Rodman Stewart, in a separate petition, identifies multiple subjects in the Initiative: it undermines home rule governments' authority over land use, imposes mandatory referendums for growth map approvals, and limits citizens' appeal rights against voter decisions. He notes that the Initiative transfers land use authority to other local entities through required cooperation on growth area maps.

In summary, the petitioners assert the measure includes distinct subjects such as: (1) exclusions from the definition of "development" affecting water facilities; (2) alteration of home rule cities' land use authority; (3) transfer of land use authority to outside local entities; (4) a referendum requirement limited to one day for voter approvals; (5) impairment of vested property rights; (6) removal of the landowner's right to seek governmental redress; (7) a ten-year limitation on borrowing and spending for new growth areas; (8) restrictions on voter choice regarding water and sewer services; and (9) limitations on certain agricultural uses of land.

The Initiative is determined to encompass a single subject, specifically regarding development management, despite its broad nature and various detailed provisions. It does not violate the single-subject requirement because the different issues addressed are interconnected. The referendum requirement allows voters direct involvement in future development decisions, which necessitates limitations on home rule powers over development. Proponents' policy choices, including exemptions for certain developments, align with the Initiative's objectives, and other provisions, such as election requirements and mapping for growth areas, are directly linked to the referendum.

The petitioners claim that the titles and summary of the Initiative misrepresent its intent. Under Colorado law, the title board must avoid confusion from misleading titles and ensure that the titles accurately reflect the Initiative's purpose. Titles must be concise, not conflict with existing petitions, and clearly indicate the effects of a "yes" or "no" vote. The review process grants deference to the board’s discretion, and titles are only overturned if they are clearly misleading. Additionally, constitutional and statutory provisions governing the initiative process are interpreted to support the right to initiative rather than hinder it.

The summary clarifies that it is not meant to comprehensively educate the public on the proposed law, as established in *In re Proposed Initiative Under the Designation "Tax Reform,"* 797 P.2d 1283, 1289 (Colo.1990). Percy contends that the titles oversimplify a complex proposal, notably failing to define "regular election" and not indicating that local governments and private property owners must adhere to growth area maps. He argues the titles mislead voters by stating local governments "shall approve development only within areas committed to development," which he views as circular and lacking clarity regarding the criteria for "committed areas." Percy identifies key requirements for a committed area, including service by central water and sewer systems and the presence of structures on at least 50% of the site. He believes including these requirements in the titles would enhance voter understanding, rendering the titles defective due to their omission. The Initiative defines "committed area" with specific criteria, emphasizing that the Board's responsibility is to create fair and clear titles without misleading voters. The titles do not need to detail every aspect of the proposal, and the definition of "committed area" is complex enough that its absence does not mislead or render the titles inaccurate. Consequently, the Board acted within its discretion in omitting the detailed definition from the titles.

Titles in the Initiative are not considered defective for using terms like "regular election," "areas committed to development," and "future growth areas" without providing their specific legal definitions. Petitioners Percy and Christensen argue that the titles do not adequately express the Initiative's subject, as mandated by article V, sec. 1(5.5). Percy contends that while the titles refer to "management of development," the Initiative outlines detailed criteria for approving development, suggesting that the primary focus is actually on "regulation of development approval," as voters and local governments lack control. The Christensen petitioners assert that the phrase "concerning management of development" was chosen to avoid the impression of multiple subjects. They claim the titles mislead voters by failing to clarify distinctions among the Initiative's various subjects, including voter control over development, central water and sewer services, and restrictions on agricultural uses outside designated areas. Despite these concerns, the reviewing body emphasizes that it does not aim to create optimal titles and will only overturn them if they are clearly misleading. The phrase "concerning the management of development" is deemed an appropriate characterization of the complex proposal. Claims regarding the lack of definitions for "committed area" and the Initiative's impact on livestock production have been previously rejected. The titles are not required to specify every business affected by the Initiative, and confined animal feeding operations are included only for clarity. Lembke's assertion in No. 00SA178 that the titles obscure the proponents' intentions to limit construction and diminish local government authority is noted, with emphasis on the inadequacy of the term "management" to reflect the annual nature of voter approval for growth maps.

Stewart's case, No. 00SA179, argues that "concerning the management of development" accurately describes the proposal's subject. The court emphasizes that it is not its role to predict the Initiative's potential future impacts, which are outside the review's scope, referencing In re Ballot Title #255. Lembke contends that the phrase "management of development" serves as an impermissible catchphrase that could mislead voters and generate support based solely on wording rather than substance. However, the court finds "concerning the management of growth" to be a neutral descriptor, lacking characteristics of previous catchphrases. Lembke has not provided evidence to suggest otherwise. The court concludes that the titles and summaries set by the Board are valid and affirms the Board's actions. The proposed ballot title aims to amend the Colorado Constitution regarding development management, requiring local governments to approve development only in designated areas and to submit growth area maps for voter approval, among other stipulations.

The measure introduces a new article XXVIII to the Colorado Constitution addressing rapid and unregulated development as a statewide concern. Its objectives include requiring citizen oversight of growth, providing voters with information about growth impacts, and ensuring coordination among local governments regarding growth areas. The measure preempts any conflicting laws and mandates that local governments approve development only in specified "committed areas" or designated "growth areas" based on voter-approved maps. 

Definitions are provided: "committed area" refers to land designated for development based on specific criteria; "development" encompasses commercial, residential, or industrial construction that alters the land's character, excluding certain utility and resource extraction activities; "growth area" is defined as regions identified on a voter-approved growth map; and "local government" includes all cities, towns, and counties as defined by statutory provisions.

The measure applies to counties and city-counties with populations over 10,000, with provisions allowing counties under 25,000 to seek voter exemptions for four-year periods, which can be renewed. Cities and towns with populations below 1,000 are exempt from preparing growth maps but cannot approve developments that would raise their populations above this threshold until a map is approved. Local governments must delineate their committed areas by December 31, 2001, or within a year of becoming subject to the measure's requirements, and must prepare growth area maps detailing proposed land uses and development densities.

Proposed growth areas can only be designated on a growth area map if they are served by a central water and sewer system and meet specified road criteria within ten years of voter approval. Each proposed growth area must border at least one-sixth of its perimeter with a committed area or previously approved growth areas. Growth area maps and accompanying texts must align with growth impact disclosures, developed with citizen input and consistent with local government proposals. Local governments must submit each proposed growth area map for a public vote during regular elections, adhering to specific ballot title and submission requirements. Growth impact disclosures must detail the potential impacts of development within the proposed area and be distributed to voters using the best available data commonly used by local government planners in Colorado.

Development within a voter-approved growth area must follow the growth area map, while development in a committed area can proceed without voter approval if in line with approved plans and applicable regulations. Development or subdivision is prohibited in non-committed or non-growth areas, except under eight specified exceptions, including minor family-related subdivisions, certain public facilities, and limited commercial developments. The measure clarifies that it does not infringe on constitutional protections for private property and mandates a liberal interpretation of its provisions, with strict construction applied to any laws that contradict it.

Existing estimates for municipal population data are proposed to meet regulatory requirements, which would result in no significant state fiscal impacts. However, if new projections are mandated, the Department of Local Affairs anticipates needing six additional full-time employees at a cost of $347,846. Current assessments indicate no further state fiscal impact.

Local governments face indeterminate fiscal impacts, as compliance with five specific tasks mandated by the measure could incur direct costs potentially reaching $60 million. These tasks include delineating "committed areas," developing "growth area maps," subjecting these maps to a public vote, providing growth impact disclosures, and distributing relevant information to voters. The costs associated with ensuring growth area maps align with those proposed by other local governments remain uncertain but may be comparable to the costs of delineating committed areas.

Notably, the estimates do not account for potential expenses related to updating zoning or land use regulations. Should elections fail or if growth area maps need future revisions, these costs may become recurring expenses for local planning efforts. 

Indirect fiscal impacts on local governments are also indeterminate. Potential positive impacts could stem from reduced costs associated with new infrastructure development, though quantifying these benefits is challenging. Conversely, there are possible negative fiscal consequences from delays or restrictions on certain developments due to the requirements of the measure, both short-term and long-term, contingent on public voting outcomes.

Administrative actions included a technical correction to the measure's text and approval of its single subject and jurisdiction. A motion for rehearing regarding jurisdictional grounds was denied, along with all objections related to the single subject matter.

Motions for Rehearing were partially granted, resulting in two title changes and an amendment to the fiscal impact summary, while all other aspects were denied. The hearing concluded at 5:08 p.m. 

The excerpt introduces a new constitutional article for Colorado, focusing on citizen management of growth due to concerns over rapid, unplanned development. The article emphasizes that such growth threatens public health, safety, and welfare by consuming open spaces, imposing tax burdens, overloading public services, increasing traffic congestion, and damaging ecosystems. It aims to empower voters with information and control over growth areas in their communities and mandates coordination among local governments regarding proposed developments. This article will take precedence over any conflicting laws.

Definitions provided include:
1. **Central Water and Sewer Service**: Delivery of potable water and sewage disposal through established infrastructure, excluding standalone systems.
2. **Committed Area**: Land designated for development based on specific criteria, including existing subdivisions, pending development applications, or areas identified for redevelopment that are adjacent to developed lands.
3. **Development**: Any construction or activity that alters the fundamental character or use of the land, encompassing commercial, residential, or industrial projects.

Commercial, residential, or industrial construction does not encompass telecommunications, public utility facilities, mineral extraction, oil and gas activities, or water management within Colorado. A "growth area" is defined as a location on a voter-approved map where development is permitted. "Local government" includes various city and county forms, while a "regular election" occurs on specified November dates. A "subdivision" refers to dividing land into multiple defined tracts. A "valid development application" is one that meets submission criteria and is accepted by the local authority.

Local governments are restricted to approving development in designated "committed areas," approved growth areas, or under specific exceptions. The article applies to counties and cities with populations over 10,000, based on recent census data or projections. Counties under 25,000 may seek voter-approved exemptions for up to four years, which can be renewed. Cities and towns with parts within applicable counties must comply, but those with fewer than 1,000 residents need not create a growth area map unless their population is projected to exceed that number. All local governments must define their committed areas by a set deadline. Growth area maps must outline proposed areas, land uses, and development densities, with restrictions on newly designated growth areas.

Development in designated areas requires service by a central water and sewer system and road construction, achievable within ten years post-voter approval, adhering to borrowing, taxing, and spending limitations. Each proposed growth area must share at least one-sixth of its perimeter with an approved area or another growth area. Growth area maps must align with growth impact disclosures, involve citizen participation through public hearings prior to voter referral, and be developed in cooperation with neighboring local governments to avoid conflicts. 

Local governments must submit growth area proposals to a popular vote, providing a ballot title that summarizes the proposal neutrally. Growth impact disclosures detailing the effects of proposed developments—such as infrastructure needs, housing units, and anticipated population growth—must be provided to voters, based on reliable data used by planners in creating master plans. These disclosures should address potential impacts on transportation, regional air quality, water supply, and coordination with adjacent growth maps.

All development, land subdivision, changes in land use or density, and construction or extension of central water, sewer systems, or roads within a voter-approved growth area must comply with the designated growth area map. This requirement applies to developments by various political subdivisions and special districts as well. 

Development in committed areas can proceed without voter approval if it adheres to approved plans and applicable regulations. Local governments may present amendments to growth area maps for voter consideration during regular elections. 

For land outside committed or approved growth areas, development is generally prohibited, with specific exceptions: 

1. Developments not needing further local approvals or requiring only a building permit.
2. Developments consistent with valid applications filed before the 2000 general election ballot certification.
3. Creation of up to three lots, each no larger than two acres, for immediate family members of agricultural property owners.
4. Land divisions exempt from subdivision laws as of the time of division.
5. Publicly owned facilities essential for public health, safety, or welfare.
6. Land divisions permitted as rural cluster developments by existing statutes.
7. Non-residential development under 10,000 square feet for retail or service uses where no similar businesses exist within a mile.
8. Commercial or industrial development supporting local agricultural operations, also in areas lacking similar sites within a mile.

The section clarifies that it does not infringe on other constitutional protections for private property. It emphasizes a liberal interpretation of the article's provisions, with strict construction of any conflicting laws. The document also notes the procedural context surrounding the initiative, including the death of a proponent and the decision to address previously raised issues despite that event. Local governments are primarily responsible for approving developments only in committed or future growth areas as mapped by voter approval.