HomeMy WebLinkAbout2013 Ordinance No. 043•
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BY AUTHORITY
ORDINANCE NO. 13
SERIES OF 2013
COUNCIL BILL NO . 35
INTRODUCED BY COUNCIL
MEMBER WOODWARD
AN ORDINANCE AUTHORIZING THE SALE OF THE ENGLEWOOD DEPOT PROPERTY
TO TOM AND PATTI PARSON.
WHEREAS, the Englewood Depot was built in the early 1900's and was located along the
railroad tracks near what is now the intersection of Hampden Avenue and Santa Fe Drive; and
WHEREAS, as railroad freight and passenger traffic declined in the 1950's it was closed; and
WHEREAS, the Englewood Depot was moved to a vacant lot owned by the City; and
WHEREAS, late in 2012 the Englewood City Council made the decision to seek a buyer and
sent out a request for proposal to restore the building and put it to use; and
WHEREAS, two proposals were received; and
WHEREAS, an Englewood Historic Preservation Society a proposal was to turn the
Englewood Depot into a museum; and
WHEREAS the proposal by Parson would undertake historic restoration of the Englewood
Depot and turn the inside into a letterpress operation and museum using their own resources and
seeking historic restoration grants; and
WHEREAS, the Englewood City Council created a five-member committee to evaluate the
two proposals for restoration and reuse of the Englewood Depot submitted as a result of the
City's request for proposal; and
WHEREAS, the Evaluation Committee was made up of three professionals, with expertise
related to historic preservation and financing of historic structures and two Englewood residents;
and
WHEREAS, the Evaluation Committee recommended moving forward with the Parson
proposal; and
WHEREAS, during the June 17, 2013 Study Session, Englewood City Council discussed the
findings offered by the Evaluation Committee; and
WHEREAS, City Council approved Resolution No. 66, Series of 2013 authorizing the City
Manager to negotiate a sale of the Englewood Depot to Tom and Patti Parson; and
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WHEREAS, City staff can not find a record of the property being dedicated for park
purposes; and
WHEREAS, the Parks and Recreation Master Plan of 2006 anticipates the transfer of the
property to other, more econorn.ically productive uses.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COU NCIL OF THE CITY OF
ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The City Co uncil of the City of Englewood, Colorado hereby authorizes the City
Manager to sign a Sales Agreement containing the conditions listed in the City's Request for
Proposal including a preservation easement through the Colorado Historical Foundation and a
first right of refusal for this property in the event the Buyer sells the property in the future. The
right of first refusal will not be triggered if the Buyer transfers the property to a lim.ited liability
company or non-profit owned and controlled by Tom and Patti Parson or if title is transfened to
their son by inheritance.
Section 2. The City Council of the City of Englewood, Colorado hereby authorizes the Mayor
to sign the Quit Claim Deed for the sa le of the Englewood Depot property to Tom and Patti
Parson.
Introduced, read in full, and passed on first reading on the 5th day of August, 2013.
Published by Title as a Bill for an Ordinance in the City's official newspaper on the 9il• day of
August, 2013.
Published as a Bill for an Ordinance on the City's official website beginning on the i 11 day of
August, 2013 for thirty (30) days .
Read by title and passed on final reading on the 19th day of August, 2013.
Published by title in the City's official newspaper as Ordinance No . t/3, Series of 2013, on
the 23rd day of August, 2013.
Published by title on the City's official website beginning on the 21 st day of
August, 2013 for thi1iy (30) days.
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I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that the
above and foregoing is
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time copy of the Ordinance passed on final reading and published by
title as Ordinance No .'t:2_, Series of 2013 .
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6Pan Brotzman
~om: Lou Ellis
Sent:
To:
Tuesday, August 13, 2013 9:57 AM
Dan Brotzman
Cc: Gary Sears; Michael Flaherty; Frank Gryglewicz; Nancy Reid; Nancy Fritz; Leigh Ann
Hoffhines; Sue Carlton-Smith; Kerry Bush; Erin McGarry
Subject: FW : Referendum Process
From: Matthew Crabtree [mailto:micrabtree21@qmail.com]
Sent: Tuesday, August 13, 2013 9:54 AM
To: City Clerk
Cc: Lou Ellis; Kerry Bush; 'L B BARRENTINE'
Subject: Referendum Process
Lou,
.r our discussion last week, we would like to proceed with a referendum process if council chooses to proceed
with the sale of the Depot and park land on the 19th. For clarification this referendum would apply to council
bill 35.
As stated in the Englewood City Charter under section 4 7:
"The referendum shall apply to all ordinances passed by Cou ncil, except ordinances ,naking th e tax levy, the
annua l appropriation ordinan ce, or the ordering of improvements initiated by p etition and to be paid for in
who le or part by special assessments. "
The first reading of Council bill 35 reads as follows:
Counc il Bill No. 35 -Recommendation fro m the City A1anager 's Office to consider a bill for an ordinance
.pproving the sale of the Historic Englewood Depo t to Tom and Patti Parson.
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A s Council 13ill 35 is written it seems to clearly app ly to the referendum process, we have a lso received outside
lega l co un sel (former City Attorney for another borne rule municipality in Colorado) and confirms this for us . •
Please let us know the process for the referendum and any other applicable details.
Thanks again!
Matthew Crabtree
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Lindsay Von Colditz .m:
Sent:
To:
Cc:
Subject:
Dan Brotzman
Thursday, August 15 , 2013 12 :20 PM
Rick Gillit; Gary Sears
Council; Lou Ellis
RE : Council Request -Referendum Period after Vote on Depot
There is a memo attached to the Ordinance selling the Depot in this weeks packet which explains why the Colorado
Supreme Court has held that the referendum provision does not apply in this circumstance.
-----Original Message -----
From: Rick Gillit
Sent : Thursday, August 15, 2013 12 :13 PM
To: Gary Sears; Dan Brotzman
Cc: Council
Subject : Council Request -Referendum Period · after Vote on Depot
Gary & Dan,
I have heard a rumor that concerns me and I would like to get some clarity if possible. I have heard that there is
.41111111iiicussion out of the City Managers and Attorneys office that there will be no referendum period after the ordinance to
-the Depot. Is this correct??? From what I understand once we pass an ordinance our Charter tells us that we are to
have a 30-Day Referendum period . I know we have used this numerous times before unless it was an emergency
ordinance. I also believe we cannot sell property on an Emergency Ordinance so I continue to be concerned if this is the
case.
I am not an attorney nor do I play one on TV but there seems to be some language by my understanding in our Charter
as well as in State Statute that will dictate how we move forward.
Here is our City Charter Language:
47: Referendum.
The referendum shall apply to all ordinances passed by Council, except ordinances making the tax levy, the annual
appropriation ordinance, or the ordering of improvements initiated by petition and to be paid for in whole or part by
special assessments.
If at any time within thirty (30) days after the final passage of an ordinance to which the referendum is applicable a
petition signed by registered electors equal in number to at least ten percent (10%) of the preceding gubernatorial vote
in the City, is presented to the Council protesting any ordinance going into effect, it shall reconsider such ordinance. If
the ordinance is not entirely repealed, Council shall submit it to a vote of the electors of the City as provided in the
Initiative and Section 14 of this Charter, at the next general municipal election, special municipal election or general
Ate election . Such ordinance shall then go into effect without further publication if a majority ofthe electors voting
.ereon vote in favor of it. The Council, on its own motion, shall have the power to submit any proposed ordinance to a
vote of the electors at a general municipal election, special municipal election or genera I state election as provided and
limited in this Charter. No provision of this Charter shall be construed as limiting the right of Council to refer to any
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ordinance subject to referendum. If provisions of two or more proposed ordinances adopted or approved at the same
election conflict, the ordinance receiving the highest affirmative vote shall become effective.
(Amended 11 -2-1965 ; 11-5-1991; 11-6-2001)
48: Amendments .
An ordinance adopted or rejected by electoral vote under either the initiative or referendum, cannot be revised,
repealed, or amended except by electoral vote; but the Council shall have the power to submit a proposition without a
petition therefor, subject to the limitations set forth in Section 14 of this Charter.
(Amended 11-2-1965)
Here is what the State Statute says pertaining to Referendum:
Colorado Revised Statutes pertaining to Referendum:
31-11-105. Ordinances -when effective -referendum.
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(1) No ordinance passed by the legislative body of any municipality shall take effect before thirty days after its final
passage and publication, except an ordinance calling for a special election or necessary to the immediate preservation of
the public peace, health, or safety, and not then unless the ordinance states in a separate section the reasons why it is
necessary and unless it receives the affirmative vote of three-fourths of all the members elected to the legislative body
taken by ayes and noes .
{2) Within thirty days after final publication of the ordinance, a referendum petition protesting against the effect of the •
ordinance or any part thereof may be filed with the clerk. The petition must be signed during the thirty-day period by at
least five percent of the registered electors of the municipality registered on the date of final publication.
{3) If a referendum petition is filed, the ordinance or part thereof protested against shall not take effect, and, upon a
final determination of petition sufficiency, the legislative body shall promptly reconsider the ordinance . If the petition is
declared not sufficient by the clerk or found not sufficient in a protest, the ordinance shall forthwith take effect, unless
otherwise provided therein.
(4) If, upon reconsideration, the ordinance or part thereof protested is not repealed, the legislative body shall submit the
measure to a vote of the registered electors at a regular or special election held not less than sixty days and not more
than one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the state
constitution. The ordinance or part thereof shall not take effect unless a majority of the registered electors voting on the
measure at the election vote in favor of the measure.
Colorado Revised Statutes pertaining to initiative:
31-11-104. Ordinances -initiative -conflicting measures.
(1) Any proposed ordinance may be
submitted to the legislative body of any municipality by filing written notice of the proposed ordinance with the clerk
and, within one hundred eighty days after approval ofthe petition pursuant to section 31-11-106 (1), by filing a petition.
signed by at least five percent of the registered electors of the city or town on the date of such notice. The proposed
ordinance may be adopted without alteration by the legislative body within twenty days following the final
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· determination of petition sufficiency . If vetoed by the mayor, the proposed ordinance may be passed ove r the mayor's
veto within ten days after the veto .
• e proposed ord i nance is not adopted by the legislative body, the legislative body shall forthwith publish the
proposed ordinance as other ordinances are published and shall refer the proposed ordinance, in the form petitioned
for, to the registered electors of the municipal ity at a regular or special election held not less than sixty days and not
more that one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the
state constitution. The ordinance shall not take effect unless a majority of the registered electors voting on the measure
at the election vote in favor of the measure.
(2) Alternative ord inances may be submitted at the same election , and , if two or more conflicting measures are
approved by the people, the one that receives the greatest number of affirmative votes shall be adopted in all
particulars as to which there is a conflict .
Can you please let us know exactly how we ar e going to move forward Monday evening after the vote to sell the Depot?
It would be really helpful for me to understand how we handle this .
Thanks for you r assistance!
Rick Gillit
City Council Member -District #4
~ice: 303-762-2300
9=ct: (303) 246-4780
Email: rgillit@englewoodgov .org
Personal Web Page -www.EnglewoodCitizen.com
1000 Englewood Parkway
Englewood , CO 80110-2373
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MEMORANDUM
TO: Mayor Penn
City Council Members
FROM: Dan Brotzman, City At
DATE: August 14, 2013
REGARDING: Referendum Legislative v. Administrative.
Citizen petitions may only propose an initiative or a referendum that is legislative in
character, not administrative. See Witcher v . Canon City, 716 P .2d 445 (Colo. 1986);
Margolis v. District Court, 638 P .2d 297 (Colo . 1981); Vagneur v. City of Aspen, 232
P.3d 222 (Colo . App. 2009); Colorado Springs v . Bull, 143 P .3d 1127 (Colo. App. 2006;
and Wright v. City of Lakewood, 608 P.2d 361 (Colo. App . 1979).
Section 47 of the Englewood Home Rule Charter in relevant part:
47: Referendum.
The referendum shall apply to all ordinances passed by Council, except
ordinances making the tax levy, the annual appropriation ordinance, or the
ordering of improvements initiated by petition and to be paid for in whole or part
by special assessments. . ..
The Colorado Supreme Court ruling on Aurora's Charter language found that a
referendum would not apply in similar circumstances, see City of Aurora v. Zwerdlinger,
571 P.2d 1074 (Colo. 1977). In the Aurora case, a referendum petition was filed after the
Council passed an ordinance to revise water rates . Aurora's Charter referendum provision
reads as follows:
"The referendum shall apply to all ordinances passed by the council, except
ordinances fixing the rate of taxation on property each year for municipal
purposes , making the annual appropriation, calling a special election, or ordering
improvements initiated by petition and to be paid for by special assessments ... "
The Colorado Supreme Court found that references in municipal charters to "all
ordinances" have generally been interpreted as meaning only ordinances which are
legislative in character. The Colorado Supreme Court concluded that the Aurora Charter
reserved the referendum power only as to legislative ordinances . See also Witcher v .
Canon City, 716 P.2d 445 (Colo. 1986), where the Colorado Supreme Court made a
similar finding concerning a lease entered into by the City .
Sale of the Englewood Depot is an administrative matter not subject to referendum .
CC : Gary Sears
Lou Ellis
1074 Colo. 571 PACIFIC REPORTER, 2d SERIES
The right to have blood tests performed
cannot be denied an indigent defendant
without violating the equal protection
clause of the Fourteenth Amendment of the
United States Constitution .1
[5] Accordingly, the rule is made abso-
lute, and the district court is directed to
determine whether the petitioner is, in fact,
indigent and unable to pay for blood group-
ing tests and, if so, to order the blood
grouping tests be made at county expense.
CITY OF AURORA, Colorado, a Munici-
pal Corporation, Petitioner,
v.
Jack ZWERDLINGER, Morris Dickhart
and Jo Coates, Individually and as rep-
resentatives of a class of persons sign-
ing that certain referendum petition
protesting the going into effect of Ordi-
nance No. 74-146 enacted by the City
Council of the City of Aurora, Colorado,
and entitled "Utility Rates," and estab-
lishing rates for water services in the
City of Aurora, Colorado, Respondents.
No. C-1102.
Supreme Court of Colorado,
En Banc.
Oct. 24, 1977.
Rehearing Denied Nov. 21, 1977.
City filed declaratory judgment action
seeking declaration that ordinance raising
rates and charges for water supplied by city
was not subject to referendum process .
The District Court, Arapahoe County, M. ·o.
Shivers, Jr., J., found ordinance was not
l. Other courts have characterized paternity ac-
tions as being "quesi-crimina l" in nature and
have analogized the cost of blood grouping
tests to the cost of trial transcripts in criminal
actions under Griffin v. Illinois, 351 U.S. 12, 76
subject to referendum, and representatives
of class of persons signing referendum peti-
tion appealed. The Court of Appeals, 558
P.2d 998, reversed and remanded with di-
rections, and city sought certiorari. · The
Supreme Court, Erickson, J ., held that un-
der city charter and Colorado Constitution,
ordinance raising rates and charges for
water supplied by city was administrative
ordinance not subject to referendum pow-
ers.
Reversed and returned with directions.
1. Statutes <ll= 302, 342
Terms of state constitutional article re-
serving initiative and referendum powers to
the people are to be liberally construed to
effectuate their purpose. Const. art. 5, § 1
et seq .
2. Statutes <!!=303, 343
Constitutional article reserving initia-
tive and referendum powers to the people
applies only to acts which are legislative in
character and not to administrative actions.
Const. art. 5, § 1 et seq.
3. Municipal Corporations <!l=> 108.5
.If referendum powers reserved by city
charter exceed powers reserved by the
State Constitution, those powers are opera-
tive and will be given effect. Const. art. 5,
§ 1 et seq.
4. Municipal Corporations ®:::> 108.8
Aurora city charter which provided
that referendum power applied to "all ordi-
nances" except four listed exemptions
would be construed to reserve referendum
power only as to all legislative ordinances
with the exception of four exempted mat-
ters. Const. art. 5, § 1 et seq.
5. Municipal Corporations ~ 108.8
Generally, municipal corporation's ac-
tions which relate to subject of a perma-
nent or general character are legislative ,
while those actions which are temporary in
operation and effect are not.
S.Ct. 585 , 100 L.Ed. 891 (1956). See Walker v.
Stokes, 45 Ohio App.2d 275 , 344 N.E .2 d 159
(1975); Commonwealth v. Possehl, 355 Mass .
575, 246 N .E.2d 667 (1969).
CITY OF AURORA v. ZWERDLINGER Colo. 1075
Cite ns, Colo., r,71 l'.2d 1071
6. Municipal Corporations <e:= 108.7, 10 8.8
Municipal corporation's acts Lhai are
nec essary to carry out existing legislative
policies and purposes or which arc prop erly
characterized as executive are generally
deemed to be administrative, whi le acts
constituting a declaration of public policy
arc deemed to be legislative .
7. Municipal Corporations <e:= 108.7
Utility rate ordinances are administra-
tive in character.
8. Municipal Corporations ®= 108.7
City ordinance which raised utility
rates was administrative in character and,
thus, was not subject to refere ndum powers
reserved to Aurora electors by either Colo-
rado Constitution or Aurora charter.
Const. art. 5, § 1 et seq.
Leland M. Coulter, Richard Kaufman,
Aurora, for petitioner.
Bader & Dufty, Robert A. Dufty, Denver,
for respondents.
Dawson, Nagel, Sherman & Howard,
Robert M. Johnson, Michael L. Cheroutes,
Jane E . Roberts, Denver, for amicus curiae,
The Colorado Municipal Bond Dealers Asso-
ciation, Inc.
Susan K. Griffiths, Wheat Ridge, for ami-
cus curiae the Colorado Municipal League.
ERICKSON, Justice.
We granted certiorari to review the court
of appeals' decision in City of Aurora v.
Zwerdlinger, Colo.App., 558 P.2d 998 (1976).
On July 22, 1974, the Aurora City Council
enacted Ordinance No . 74 -146, raising the
rates and charges for water supplied by the
city. This ordinance was passed to satisfy
the requirements of Ordinance No . 73-221.
In the earlier ordinance, the city had autho-
rized the issuance of certain bonds and cov-
enanted "that it will establish, maintain,
collect and enforce rates and charges for
the connection to, use of and services fur-
nished by the municipal water system of
the City. " The revenues thus
generated, together with other available
tax proceeds, were covenanted to be suffi-
cient to pay the costs of ope ration and
maintenance and the principal and in Lcrest
on the bonds.
A referendum petition demanding t he re-
peal of Ordinance No. 74-146 or its submis-
sion to a vote of the qualified electors of
Aurora was subsequently filed with the
city. Th e petition was proper in all proce-
dural respects and was timely filed. Auro-
ra r efused to repeal the ordinance or to call
an election and filed an action seeking de-
claratory judgment.
The trial court entered a declaratory
judgment in uehalf of Aurora, holding that
the ordinance was not subject to the refer-
endum process. The court of appeals re-
versed, holding that the Aurora City Char-
ter provided that a referendum could be
applied to "all ordinances," unless specifi-
cally exempted. Since no exemption exist-
ed for utility rate ordinances, the present
ordinance was, in the opinion of the court of
appeals, subject to th e referendum power.
We reverse the court of appeals.
Petit ioner City of Aurora's primary alle-
gation of error concerns the court of ap-
peals' interpretation of the referendum
powers reserved by the Colorado Constitu-
tion and the Aurora City Charter. Two
questions of first impression are presented:
(1) Do the referendum powers in this case
apply to administrative, as well as legisla-
tive actions?, and (2) Is a municipal ordi -
nance which increases utility rates an ad-
ministrative or legislative action?
I.
Article V of the Colorado Constitution
reserves the initiative and referendum pow-
ers to the people:
"Section l. General assembly-initia-
tive and referendum. The legislative
power of the state shall be vested in the
general assembly consisting of a senate
and house of representatives, both to be
elected by the people, but the people re-
serve to themselves the power to propose
laws and amendments to the constitution
and to enact or reject the same at the
polls .
1076 Colo. 571 PACIFIC REPORTER, 2d SERIES
"The initiative and referendum powers
reserved to the people by this section are
hereby further reserved to the legal vot-
ers of every city, town and municipality
as to all local, special and municipal legis-
lation 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. . , " (Emphasis added .)
[1] We have held that the purpose of
these constitutional provisions is to expedi-
tiously permit the free exercise of legisla-
tive power by the people. Brooks v. Zabka,
168 Colo. 265, 450 P.2d 653 (1969); Brown-
low v. Wunsch, 103 Colo. 120, 83 P.2d 775
(1938). The terms of the article, being a
reservation of powers to the people, are to
be liberally construed to effectuate their
purpose. Colorado Project-Common Cause
v. Anderson, 178 Colo. 1, 495 P.2d 220
(1972); Burks v. City of Lafayette, 142
Colo. 61, 349 P.2d 692 (1960).
[2] The intention evidenced by Article V
of the Colorado Constitution is to vest only
legislative power directly in the people.
The language of the article itself refers
specifically to the initiative and referendum
powers as the means by which the people
can exercise the legislative power. It is
also not unimportant that these powers are
reserved in the article of our Constitution
which deals expressly and singularly with
the legislative branch of government. We,
therefore, construe the constitutional provi-
sions to apply only to acts which are legisla-
tive in character, which is consistent with
the -majority view. .Carson v. Oxenhandler,
334 S.W.2d 394 (Mo.App .1960); Keigley v.
Bench , 97 Utah 69, 89 P.2d 480 (1939); see
also People •¥. ,Graham, 70 Col_o. 509, 203 P.
277 (1921).
The City of Aurora Charter also reserves
the referendum power to the people. Arti-
cle VI, Section 4 of the Charter provides :
"The referendum shall apply to all ordi-
nances passed by the council, except ordi-
nances fixing the rate of taxation on
property each year for municipal pur-
poses, making the annual appropriation ,
calling a special election, or ordering im-
provements initiated by petition and to
be paid for by special assessments . "
[3] Notwithstanding the limitation of
the constitutional referendum power to leg-
islative actions, the terms of the City Char-
ter must be examined because the two res-
ervations are independent of each other.
The Charter provisions cannot limit powers
reserved by the Constitution. However, if
the powers reserved by the Charter exceed
the powers reserved by the Constitution,
those powers are operative and will be giv-
en effect. Burks v. City of Lafayette, su-
pra; Leach & Arnold Homes, Inc. v. City of
Boulder, 32 Colo.App. 16, 507 P.2d 476
(1973).
[4] Aurora's Charter provides that the
referendum power applies to "all ordi-
nances" except the four listed exemptions.
Respondents contend that this language
must be read literally to include the ordi-
nance in this case . But references in mu-
nicipal charters to "all ordinances" have
generally been interpreted as meaning only
ordinances which are legislative in charac-
ter. This general rule was reviewed in
Carson v. Oxenhandler, supra :
"The rule that only acts legislative in
their nature are subject to referendum is
particularly applicable in the field of mu-
nicipal corporations. The legislative body
of a municipality, whether it be designat-
ed a city council, board of aldermen, or
otherwise, is frequently called upon to act
in an administrative as well as a legisla-
tive -capacity by the passage of ordinances
and resolutions . From an early date in
the history of the right of referendum it
has beeri recognized that to subject to
referendum any ordinance adopted by a
city council, whether administrative or
legislative, could result in chaos and th e
bringing of the machinery of government
to a halt.
" . The general rule which
has developed is stated in Seaton v. Lack-
CITY OF AURORA v. ZWERDLINGER Colo. 1077
Cite us, Colo., 571 P.2d 1074
ey, 29 8 Ky. 188, 182 S.W .2d 336, 338, a s of ordinances are administrative or lcgi s lu-
follows: tive . Such is the case with municipal ordi-
" 'Although initiative and referen-nances which HCL utility rates. 5 McQuillin,
dum provisions widely uiffer in their Municipul Corporations, 3rd ed . §§ 16.55 ,
Lcrminology, it is the general rul e LhaL Hi.57.
they are applicable only Lo acLs which [7] Nonetheless, we are in agreement
are lc gi i;lative in characte r, and noL Lo with those jurisdictions which hold that
those dealing wiLh administrative or utility rate ordinances are administrative in
executive matters. character. The reasons for this conclusion
"In accordance with this rule the words are well expressed in Whitehead v. Hand C
'any ordinance ' in a provision for referen-Development Corp., supra :
dum have fr e quently, and almost univer-"The successful operation of a public
sally, been construed to mean ordinances utility is a business proposition involving
which are legislative in characte r. Keig-the exercise of discretion and good judg-
Jey v. Bench, 97 Utah 69, 89 P.2cl 480, 122 ment in management. Expenses incid e nt
A.L.R. 756; Tillamook Peoples' Utility and essential to proper operation are nee-
District v. Coates, 174 Or. 476, 149 P.2d essarily based on the cost of labor, mate-
558; Dooling v. City Council of City of rial and other factors at the time the
Fitchburg, supra) 242 Mass. 599, 136 N.E. services are rendered. They are of such a
616; Hopping v. Council of City of Rich-fluctuating nature, due to economic and
mond, 170 Cal. 605, 150 P. 977 " other temporary conditions, as to n1ake it
We conclude that the Aurora Charter re-impractical, if not impossible, for the gen-
served the referendum power only as to all era! public to appraise them in the ab-
legislative ordinances with the exception of sence of specific data, facts and informa-
the four exempted matters. Whether the tion necessary to arrive at a fair and
four exempted matters are le gislative or accurate judgment upon the subject.
administrative so not to have been subject The changing expense factor goes to the
to the referendum in the first instance need very heart of the operation.
not be addressed. "While the establishment of the city-
II .
[5, 6] Numerous tests have been em-
ployee! by various courts to determine
whether a particular ordinance is legislative
or administrative. It has been held that an
action that relates to subjects of a perma-
nent or general character are legislative,
while those which are temporary in opera-
tion and effect are not. Additionally, acts
that are necessary to carry out existing
legislative policies and purposes or which
are properly characterized as executive are
deemed to be administrative, while acts
constituting a declaration of public policy
are deemed to be legislative . Whitehead v.
Hand C Development Corp., 204 Va. 144,
129 S.E.2d 691 (1963); Keigley v. Bench,
supra; Monahan v. Funk, 137 Or. 580, 3
P.2d 778 . (1931).
Substantial disagreement exists in differ-
ent jurisdictions as to whether certain types
owned water system may . have been in
pursuance of a broad public policy and,
therefore, a legislative matter, the re-
ceipts and expenses incidental to its
maintenance and management are execu-
tive or administrative matters. It is clear
that the provisions of the proposed ordi-
nance of the electors are merely tempo-
rary in operation and effect. The ordi-
nance does not propose to make a new
law; it is one executing a law already in
existence, merely changing an expense
factor in the maintenance of a public
utility. IL pursues no new policy . It
pursues a plan already adopted by the
city council. Judged by these tests, it is
administrative rather than legislative."
[8] Such an approach results in the con-
clusion that the challenged ordinance in this
case was administrative in character. Since
the ordinance was administrative in charac-
ter, it was not subject to the referendum
1078 Colo. 571 PACIFIC REPORTER, 2d SERIES
powers reserved to the Aurora electors by
either the Colorado Constitution or the Au-
rora Charter.
Accordingly, the judgment is reversed,
and the cause is returned to the court of
appeals for remand, with directions to rein-
state the trial court's judgment.
KELLEY, LEE and CARRIGAN, JJ., do
not participate.
The PEOPI,g of the State of Colorado,
Plaintiff-Appellee,
v.
Darrell Vernon PICKETT,
Defendant-Appellant.
No. 27614.
Supreme Court of Colorado,
En Banc .
Oct. 24, 1977.
Defendant was convicted in the Dis-
trict Court, Arapahoe County, Richard D.
Greene, J ., of felony menacing, possession
of an illegal weapon and carrying a con-
cealed weapon . Defendant appealed, and
the Supreme Court, Lee, J., held that: (1)
constitutional issues which were not
presented to the trial court or otherwise
preserved for appellate review were not
properly before the Supreme Court; (2) evi-
dence sufficiently supported the jury's de-
termination that the knife taken from the
defendant was .a ''.gravity -knife"; (3)-evi-
dence sufficiently established that the over-
all length of the blade of the knife taken
from defendant was more than three and
one-half inches; (4) identification evidence
was sufficient for the jury to find that
defendant was in fact the man who accost-
ed and menaced the victim ; (5) the trial
judge did not abuse discretion in denying a
severance of the offenses; (6) there was
probable cause to arrest defendant; (7) de-
fendant was not entitled to the suppression
of a knife seized from him during a search
incident to the valid arrest; (8) evidence
supported the trial court's ruling that the
positive in-court identifications of defend-
ant were based on a reasonable opportunity
to observe the assailant; (9) no impropriety
resulted from the fact that the jury was
permitted to view the photographic array
shown to the victim, and (10) no error re-
sulted from admission of testimony relating
to a note and a dummy allegedly found in
the victim's backyard after the attack.
Affirmed.
1. Criminal Law ¢:;:, 1030(3), 1064(1),
1130(3)
Contention, raised on appeal from con-
viction of felony menacing, possession of an
illegal weapon and carrying a concealed
weapon, that cri _minal code sections under
which defendant was convicted were uncon-
stitutionally vague and overbroad was not
· preserved for review where defendant did
not raise the issue in the district court or in
his new trial motion and did not even men-
tion the issue in his opening brief to the
Supreme Court. Colo.R.Crim.P. rule 33(a);
C.A.R. l(d) ..
2. Criminal Law ~561(1)
Test for determining whether evidence
was sufficient to support guilty verdict is
. whether the evidence, when viewed in its
totality and in the light most supportive of
the verdict, is suffic-ient to support a conclu-
sion in the minds of reasonable persons that
defendant is guilty beyond a reasonable
doubt.
3. Weapons <&=17(4)
Evidence including knife which was
taken from defendant and demonstration of
the knife's operation warranted jury in
finding that the knife taken from defend-
ant was a "gravity knife" as statutorily
defined and, therefore, was an illegal weap-
on. C.R.S . '73 , 18-12-lOl(l)(e).
•
•
•
COUNCIL COMMUNICATION
Date: Agenda Item: Subject:
August 5, 2013 11 a ii Ordinance approving the sale of the
Englewood Depot.
Initiated By: Staff Source:
City Council Michael Flaherty, Deputy City Manager
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
City Council has discussed the sale of the Englewood Depot several times over the last two years. At the
June 1 7, 2013 Study Session, Council discussed the findings of the panel that had been convened to review
and make recommendations on the finalists' proposals for the sale of the depot. At that time, Council
directed staff to prepare a resolution in support of the proposal for the property submitted by Tom and Patti
Parson. During the July 1 City Council meeting, Council approved a resolution authorizing staff to negotiate
the sale of the depot to Tom and Patti Parson. The matter was also discussed during an Executive Session
on July 22, 2013.
RECOMMENDED ACTION
Staff is presenting for Council's consideration a bill for an ordinance approving a contract for the sale of the
Englewood Depot and adjacent property to Tom and Patti Parson.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
In November, 2011, the City of Englewood issued a Request for Proposals for the sale of the Englewood
Depot property. One proposal was received, but was eventually withdrawn. In November, 2012, the City of
Englewood issued a second Request for Proposals for the sale of the depot. Three proposals were received.
After discussions with Council, the list was narrowed down to two finalists: the proposal submitted by Tom
and Patti Parson for a Living Letterpress Museum and the Englewood Historic Preservation Society's
proposal for an Englewood History Museum .
A selection panel was convened to review and make recommendations regarding the finalists' proposals.
The panel was made of up three professionals with expertise in historic preservation and financing of
historic structure preservation and two Englewood citizens appointed by City Council. After reviewing the
proposals and interviewing the representatives from the finalist organizations, the panel unanimously
recommended the proposal submitted by the Parsons.
Council discussed the recommendations during the June 17, 2013 Study Session and approved a resolution
on July 1 authorizing staff to negotiate the sale of the property to the Parsons. Staff was instructed to
negotiate the terms of the contract with the Parsons to include the following conditions:
• The buyer must secure a preservation easement within 180 days from the date of sale.
• The City of Englewood will have the right of first refusal in the event of a future sale of the property. •
FINANCIAL IMPACT
The City will receive $30,000 from the sale of the property.
LIST OF ATTACHMENTS
Proposed bill for an ordinance
•
•
•
•
Reception #: D4043214, 05/22/2014 at
01:12:23 PM, 1 OF 3, QCO, Rec Fee $21.00
Arapahoe County CO Matt Crane, Clerk &
Recorder
CORRECTION QUIT CLAIM DEED
(Legal Description)
TIDS DEED, made this ;</~ay of ~ , 2014,
between THE CITY OF ENGLEWOOD, a Home Rule City existing under and by virtue of the
laws of the State of Colorado, grantor, whose legal address is 1000 Englewood Parkway,
Englewood, CO 80110, and TOM AND PATTI PARSON (hereinafter "Parson"), grantees;
whose legal address is 157 South Logan Street, Denver, Colorado 80209.
WITNESSETH, that the grantor, for and in consideration of the sum of THIRTY
THOUSAND ($30,000) DOLLARS, the receipt and sufficiency of which is hereby
acknowledged, has remised, released, sold, conveyed and QUIT CLAIMED, and by these
presents does remise, release, sell, convey and QUIT CLAIM unto the grantees, their heirs,
successors and assigns, forever, all the right, title, interest, claim and demand which the grantor
has in and to the real property, together with improvements, if any, situate, lying and being in the
County of Arapahoe and State of Colorado, described in Exhibit A attached hereto and
incorporated herein.
TO HA VE AND TO HOLD the same , together with all and singular the appurtenances and
privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title,
interest and claim whatsoever, of the grantor, either in law or equity, to the benefit and behoof of
the grantees, their heirs and assigns forever. The singular number shall include the plural, the
plural the singular, and the use of any gender shall be applicable to all genders .
WHEREAS, the book and page number of Exhibit A attached to the deed was not cited
correctly but has been corrected in the new Exhibit A attached hereto .
IN WITNESS WHEREOF, The grantor has caused its name to be hereto subscribed by
Randy P. Penn, its Mayor, and attested to by Loucrishia A. Ellis, its City Clerk, the day and year
first above written.
CITY OF ENGLEWOOD, COLORADO
A Home Rule City,
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C.o v re,, C 7 / o ;-J Vce-ec,
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LEGAL DESCRIPTION A • DEPOT PROPERTY
A PARCEL OF LAND LOCATED IN THE NW 1/4 OF SECTION 34, TOWNSHIP 4S, RANGE 68 W OF
THE 5TH P.M., CITY OF ENGLEWOOD, COUNTY OF ARAPAHOE, STATE OF COLORADO, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
LOTS 18 THROUGH 24 INCLUSIVE, BLOCK 2, TAYLOR'S ADDITION,
TOGETHER WITH THE VACATED ALLEY ADJACENT, AS DEFINED IN ORDINANCE 29, SERIES OF
1996, AND AS RECORDED AS RECEPTION NUMBER A6100258, DATED AUGUST 8, 1996,
EXCEPT THAT PORTION OF LOTS 20 THROUGH 24 CONVEYED TO THE COLORADO DEPARTMENT
OF TRANSPORTATION RECORDED IN BOOK 7691 AT PAGE 270, DATED SEPTEMBER 2, 1994,
ALSO KNOWN AS 675 WEST DARTMOUTH AVENUE
ARAPAHOE COUNTY PARCEL ID# 1971-34-2-24-029
CONTAINING 21,315 SQUARE FEET OR 0.4893 ACRES, MORE OR LESS
• RESERVING A TRANSPORATION EASEMENT FOR PUBLIC SIDEWALK AND SIGNAGE DESCRIBED AS
FOLLOWS:
PART OF LOTS 20 TO 24, BLOCK 2, TAYLOR'S ADDITION, LYING NORTH OF AND IMMEDIATELY
ADJACENT TO THE PARCEL OF LAND DESCRIBED IN BOOK 7691 AT PAGE 270, DATED
SEPTEMBER 2, 1994, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE PARCEL DESCRIBED IN BOOK 7691 AT PAGE
270, DATED SEPTEMBER 2, 1994, SAID POINT BEING 13.50 FEET NORTH OF THE SOUTHWEST
I
CORNER OF SAID LOT 20; THENCE NORTH AND ALONG THE WEST LINE OF SAID LOT 20, A
I
DISTANCE OF 15.92 FEET; THENCE SOUTHEASTERLY ALONG A NON-TANGENT CURVE TO THE
LEFT A DISTANCE OF 25.10 FEET, SAID CURVE HAVING A RADIUS OF 29.15 FEET, A CENTRAL
ANGLE OF 49°20'12", A CHORD BEARING OF S58°45'17"E AND A CHORD DISTANCE OF 24.33
FEET; THENCE S83°25'23"E, A DISTANCE OF 104.93 FEET MORE OR LESS TO A POINT ON THE
EAST LINE OF LOT 24,THENCE S00°08'38"W ALONG THE EAST LINE OF SAID LOT 24, A DISTANCE
OF 3.84 FEET MORE OR LESS TO THE SOUTHEAST CORNER OF SAID LOT 24; THENCE
N89°55'01"W ALONG THE SOUTH LINE OF SAID LOT 24, A DISTANCE OF 18 .03 FEET MORE OR
LESS TO THE MOST EASTERLY CORNER OF THE PARCEL DESCRIBED IN BOOK 7691 AT PAGE 270,
• DATED SEPTEMBER 2, 1994; THENCE NORTHWESTERLY ALONG THE NORTH LINE OF THE SAID
•
•
. .
PARCEL DESCRIBED IN BOOK 7691 AT PAGE 270, DATED SEPTEMBER 2, 1994, N84°14'51"W
(BASIS OF BEARING), A DISTANCE OF 85.96 FEET; THENCE NORTHWESTERLY CONTINUING
ALONG THE NORTH LINE OF THE SAID PARCEL DESCRIBED IN BOOK 7691 AT PAGE 270, DATED
SEPTEMBER 2, 1994, N79°03'39"W, A DISTANCE OF 21 .87 FEET (AS MEASURED: N79°39'14"W,
A DISTANCE OF 21.70 FEET) MORE OF LESS TO THE TRUE POINT OF BEGINNING.
THE BASIS OF BEARINGS AND DESCRIPTION OF THE TRANSPORTATION EASEMENT IS PER AN
IMPROVEMENT SURVEY PLAT PREPARED BY RONALD W. FLANAGAN, RPLS {FIELD WORK DATED
JULY 30, 2013).
Surveyor's Statement
I, David L. Henderson, a Professional Land Surveyor in the State of Colorado, do hereby state
that this Legal Description was prepared under my direct supervision and on the basis of my
knowledge, information, and belief, is correct.
David L. Henderson, Registered Professional Land Surveyor
Colorado P.L.S . No. 25632
Dated May 20, 2014