Witcher v. Canon City

Stump John WITCHER and Donald W.

Tyner, Plaintiffs-Appellants,

v. CITY, Municipal Corporation; CANON Turner, George Mayor; R. and Council- Jacobshagen, men Robert R. Donald T. Packard, Baker, Rigi- James A W. John

rozzi, Roy Whitney, Lloyd Frederick O.

Leslie, Bartlett, individually and Robert capacities

and in their as members of City, Council Colo- rado; Royal Gorge Company

Colorado, Corporation, a Colorado De- fendants-Appellees. Stump WITCHER,

John Plaintiff-Appellant, CITY, Municipal CANON a Home Rule Corporation Colorado; of the State of City; George the Council of Canon R. Turner, Mayor; and Councilmen Rob- Jacobshagen, Packard,

ert R. Donald T. Roy Whitney, Frederick Randel D. Le- sher, Geoffery Ormandy, N. Lamar Todd, Emily Tracy, capaci- in their

ties as members of the Council of Can- Colorado; City, Royal

on Colorado, Gorge Company of a Colora- Corporation, Defendants-Appellees. do 84SA111,

Nos. 84SA204. Colorado, Supreme Court En Banc. March

American Civil Liberties Union Founda- Inc., Colorado, tion Cole, Brian H. Den- ver, plaintiffs-appellants. Johnson, Rothgerber, Appel, Powers & Everson, Bate, Denver, James R. David H. for defendant-appellee Royal Gorge Co. Breyfogle Mandel, Roger Breyfo- & M. Mandel, gle, Richard G. all City, defendants-appellees. other under ROYIRA, The lease Justice. operating park presently from the district appeal is an This case after a second was entered into challenging an County, for Fremont court did not election indicated that the electors Gorge Bridge and Royal

amendment bridge direct- operate want the entered into between Canon Park Lease ly. Between 1967 and six amend- Royal Gorge Company (City) and the City ments to the lease were entered into be- district court (Company).1 The of Colorado 1981, In City Company.2 the tween held, summary judgment, the on extended, by term of the lease was the the subject to referendum amendment was not 31, Amendment, to October 2001. Seventh or under either the Colorado Constitution None of these seven amendments were City, and that City of Canon the Charter approval. submitted to the voters for unconstitutional the amendment was not early City When the determined 2, XI, 1 and of the under article sections bridge that extensive modernization of the We affirm. Colorado Constitution. necessary, proposed improve- was and that bridge life of the ments would extend the I. fifty years, City the entered for at least negotiations Company regard- 1906, surrounding and into with the In certain lands ing City’s cost of the mod- the role the Royal Gorge Canyon were including the negotiations culminated ernization. These City States to the conveyed by the United Eighth to the lease in the Amendment purposes. exclusively park for to be used August 1983. park canyon major feature of the is The River, which is known by the Arkansas cut contemplated modernization Since the 1929, City Gorge. In the Royal as the bridge the useful life of the would extend Piper portion park of the Lon leased a beyond the thirty-one years for at least agreement an twenty years, subject to for lease, the Company’s of the expiration date bridge suspension Piper to build a by encourage the City decided to Com- Council Lease). Gorge (Original Royal across the long-term modern- pany to undertake term, City could the end of the reducing City’s percentage At by ization lessee, or buy Company from the from by either the tolls collected twenty additional the lease for an the cost of rean- extend until 62% 25% 20% City $1,015,412, time the which- choring Bridge at the end of which years, less, Bridge pay- by further the Com- own the without is has been retained would ever addition, agreed purchased City Company In pany. ment. 2 n % fee on impose a new Piper. Company from After will Original Lease sales made City all other retail concessions and in 1949 determined election retained park, of which will be purchase the at the not wish to 80% residents did has Company Company until by extended Original Lease was bridge, the $567,412, which the sum terms. recovered years pursuant to its twenty Company. The third certain revenues of the appeals court to the district Plaintiffs filed two 1. 84SA111, during period judgment. appeal, No. was shortened the The first amendment counsel, then with- by plaintiffs’ City who of certain revenues filed trial would receive 25% case, on March 1984. Plaintiff from the drew in the maximum authorized an increase appeal, No. pro se filed a second Witcher charged The fourth to visitors. toll to be 30, 1984, 84SA204, April due to a belief that on company to increase amendment authorized district court's filed before the 84SA111 was prior approval charges without its tolls and in the judgment Since the issues became final. City. clarified certain fifth amendment The identical, ap- appeals ordered the are we two agree- ambiguities 1967 lease apparent in the July peals on 1984. consolidated extended the lease sixth amendment ment. The provi- pursuant to a term to October year a extended one 2. The first amendment calling if an extension of the lease such sion receipts payment to the on moratorium by No- improvements were made capital certain tolls, attributable or revenues from admissions vember second amendment to new construction. percentage due on rent altered the of the actual 62% cost of wind cable contracts pro- involved in the modification system modernization, gram installed in appended with were to the affidavit. paid balance of the new fee to be Plaintiffs did not controvert make City. objections to the matters set forth in the

Shortly Eighth hearing, after Amendment Jenks affidavit. After a the trial approved Council, was granted court summary a num- motion for judgment, finding (1) ber of Canon residents who did not that: there no were agree genuine facts; (2) with petition the decision circulated a issues as to material asking for quali- obligation referral of the issue to the while had an Bridge lease, fied voters maintain City. This under the 1967 petition City Council, obligation was submitted to the did not extend to the mod- approval program which determined that ernization undertaken (3) Eighth administrative, Company; Amendment was an modernization will extend the rather legislative, bridge than action the useful life of the year coun- to at least the cil, 2032, subject beyond and therefore not well facility’s to the refer- the reversion to power. City expiration endum After the on the council denied the in lease 2001; petition, (4) City several residents filed an action in benefited from the Eighth pursuant district court Amendment to to C.R.C.P. the extent that the 106(a)(2) challenging improvements the decision of the increased both the useful City Eighth bridge Council that the life of Amendment and the of value subject was not to the structure. power. referendum They declaration, sought pursuant also Relying City on Zwerdling- Aurora v. of C.R.C.P. that the amendment violated er, (1977), 194 Colo. 571 P.2d 1074 XI, sections 1 and of the Colorado trial court determined that the action by creating City Constitution a debt of the City legislative Council was not in na- constituting gift Company. ture and the process does not “apply

Subsequently, Company to administrative or filed a mo- executive mat- summary city tion for ters addressed judgment, supported by council.” As to Jenks, Eighth the claim the affidavit of Amendment president Walter J. vio- Company. of lated sections 1 and 2 XI setting In addition of article Constitution, history forth the Colorado the court Company’s relation- held that ship City, since the uncontroverted with the the affidavit evidence estab- stated that bridge, lished “that improvements, improve- there is a life to these and all other beyond ments that extends far park City facilities at the will the term of revert to the pledge by at the end the lease” there no of the lease term. It then was briefly grant of its credit nor donation or eight summarized each of the lease amendments, any corporation. stated The trial court reserved im- provements right to alter or judgment, would leave the “in amend its bet- which, gave plaintiffs days in ter than new condition due to ten if advanced able, technology materials,” they were to file give affidavits controvert- modified, bridge, ing a useful life of at least Jenks’s statement that the modifications years. bridge. will extend the life of the The balance of the Plain- affidavit set and, forth, detail, 13, 1984, tiffs failed to do so on March considerable the costs in- plaintiffs’ the trial court denied the program, volved the modification motions enlargement apportionment of those of time within which to costs between the file a motion for new trial or motion to Eighth and the under the Amendment, judgment. alter or amend specific per- and the work program. formed in the Cop- modification II. lease, amendments, eight ies the 1967 all adopting Council resolutions argue lease that both the Coun- amendment, and each and the construction cil and the concluding district court erred in Colo, Eighth adopting the resolution tive actions. 194 571 P.2d at 1076; Court, subject Margolis Amendment was not to the refer- accord v. District (Colo.1981). 638 P.2d 297 power. They endum first contend that the act, resolution was a and there- basis, day-to-day city On a elected V, subject fore to referendum under article required officials are to make decisions on 1, of the section Colorado Constitution. facing city, administrative functions that, They Eighth if the further assert even purchase vehicles, such as establish administrative, Amendment in fact it was fees, parking ment proper main subject pursuant remained to referendum city-owned buildings. tenance of lands and provisions to the referendum Canon In Zwerdlinger, we concluded that to sub each of these charter. We deal with ject each such decision to referendum in turn. contentions bring would result in chaos and the machin Colo, ery government to a halt. 194 A. The Pow- Constitutional Referendum 1076; McQuil- 571 P.2d at see also 5 E. er lin, Municipal Corporations 16.55 n. 6 § Y, Article of the Colorado (3d 1981) (collecting noting ed. cases and pertinent part, provides, Constitution cognizance courts “have taken ways govern conduct of seriously hampered the ment people reserve to themselves would be were [T]he propose the initiative and referendum to be used to laws and amendments reject compel to enact or or bar ‘administrative’ acts elect to the constitution and officials.”). polls independent the same of the ed The rule that administra at pow- subject to refer general assembly, and also reserve tive functions are not logical endum is therefore and well option approve er at their own to or both Moreover, act, item, reject polls any grounded at the in common sense. it excludes the part general or act of the assem- even to the extent that referendum, limitation on the refer bly. not citizens with

endum does leave remedy. disagree with out Citizens who powers and referendum initiative municipal the manner in which their people by reserved to the this section are government are free to is administered hereby legal further vot- reserved are elect new officials or recall those who municipality every city, ers of town and conclude, in therefore currently office. We local, special municipal legis- as to all and Zwerdlinger Margolis, did in and as we every character in or for their lation refer plaintiffs only are entitled to a that respective municipalities. The manner of complain they if of which endum the action exercising pre- powers said shall be in legislative is character. laws, by general except scribed cities, municipalities may pro- towns and Zwerdlinger Margolis, In exercising for the manner of vide determining spe whether a three tests powers as to initiative legislative municipal is or adminis cific act municipal legislation.... their First, actions that trative were set out. Const, permanent gener or Y, subjects to of a art. sec. 1. As a reserva- relate Colo. legislative, while those are al character are power, tion of the terms of this article operation and effect temporary that are liberally construed to effectuate their to be Colo, 196, at Zwerdlinger, 194 Zwerdlinger, are not. purpose. City Aurora v. 1077; at Margolis, 638 P.2d 1076 571 P.2d at 194 571 P.2d Colo. 303; McQuillin, Municipal 5 E. (1977); see also Lafayette, Burks v. (collecting n. 7 (1960). Corporations 16.55 P.2d In Zwerd- Colo. § cases). Second, necessary to “acts that are linger, held that the structure of we legislative policies and carry existing out provi- made it clear that the referendum V properly character- only legisla- purposes or which are apply intended to sion was to require original ized as executive are deemed to be adminis- often to amendments an trative, constituting agreement making while acts a declara- In parties. between legis- lease, are policy changes party presumes tion of deemed to to a be neither Colo, lative.” 571 an Zwerdlinger, permanent amendment to be in nature 1077; Margolis, 303; P.2d at 638 P.2d The adoption previous or effect. of the McQuillin,Municipal Corpo- Eighth see also 5 E. seven amendments and Amend- Third, original if rations 16.55 n. ment itself indicates that the lease is sub- § ject legislative, was then an to modification dic- act amendment as circumstances tate. original legislative. act must also be Margolis, at 304. 638 P.2d order to cite cases several that involve ques- determine whether resolution analogous acts are which not to the amend- tion was or administrative in a municipality ment of lease between character, apply the we must first and sec- private attempt concern in an to demon- amendment, tests ond to the lease Eighth strate effect of Amend- test third to the lease itself. permanent general. ment is For exam- ple, Lafayette, Burks v. 142 Colo. test, Eighth Under first (1960), 349 P.2d 692 involved creation clearly Amendment is an administrative special improvement is district. There language Eighth act. The Amend little improve- doubt creation of an specifically operation ment limits the decision, permanent ment district is a but period reduction tolls logical there is no connection between the necessary for lessee recoup 62% improvement of an creation district and the capital improvements the costs of certain amendment of a lease with a fixed termi- Gorge Royal Bridge. made to the Plain Similarly, nation date. the decisions of this argue tiffs the Council’s will action Court, holding zoning are decisions raising have effect of citizens’ tax bur nature, permanent general see, e.g., dens, so as to offset decreased analogous are Margolis, to the amend- pure supposition revenues. This is on the ment of a lease. plaintiffs’ part, respond since a can in test, action, a decrease a revenue source in a number The second in order ways, only of of which legislative, one is to increase to considered be must declare Moreover, plaintiffs’ argument policy, supports taxes. public new also the conclu- begs issue, the it is eighth for one of the Council’s sion that amendment is adminis- expend money to administrative tasks Two elections have the trative. established further legislatively policies. public policy leasing bridge, declared The of the rather question subsequent bridge of whether a measure operation by City. than of the taxes, resulting to raise any question approval from revenue of of specific The produced Amendment, by Eighth loss and conditions the lease terms of is not very public would be is a issue of policy. negotiation referable different matter The of that is not us before here. The effect of and the leases amendments thereto are Eighth acts, is the carry Amendment same administrative undertaken to any lease, spending policy of other decision decision out the rather than Council, profes bridge. whether a contract operate, for for police sional services or a roof on a it replace- was determined that When station. It of is the administrative task bridge existing ment of cable anchors to, municipal among elected officials other stay system with more wind modern things, expend collect and monies for the appropriate components light would be protection or of proper enhancement bridge’s develop- both condition such, ties. As the amendment is adminis bridge technology ments in construc- trative character. original tion since erection of the Moreover, capi- bridge, Company proposed major the context of a lessor-les- relationship, changing see improvements circumstances tal to the structure rather damage municipal simply repairing specifically provided than areas where facilities are Charter, XIII, for in the Canon Council de- been discovered. had section 13: proposal termined that contained package improvements which would ex- may The Council order construction of existing bridge for at any building, improvement facility tend the life of the or years, resulting operation least 50 in an unencum- used or to be used in the producing years facility, plant, revenue or capital improvement bered be- utility, when the cost of Agree- improve- such yond existing the term of the Lease payable ment shall be out of the reve- ment. facility, plant, utility; nues of such or Plaintiffs assert the action authorized, provided no bonds shall be legislative, it reversed Council was because defray issued or sold to raise funds to policy existing legislative evidenced building, improvement the cost of such Lease, Lease, Original the 1967 facility, approval or without the thereof first seven amendments to the 1967 Lease taxpaying general electors at a or providing City should bear a that the special question election at which the portion of the maintenance costs which authorization of such shall bonds be vot- by the lessee. would otherwise be borne upon by taxpaying ed electors. However, result in the that decision did not bridge pro- eventually Since the itself will City’s assuming the lessee’s maintenance pay capital vide the revenues to rather, obligation, it authorized the les- but improvements, specifically this action is capital improvements see to make certain Council, within the discretion of the as no Bridge Royal Gorge that were not authorized, bonds were issued sold to The trial provided for in the 1967 Lease. defray capi- raise funds costs existing policy court found that improvements. tal Bridge repair maintenance and is the Further, voters established responsibility changed the lessee is not they pro- policy clear when twice defeated eighth amendment. Since neither by the posals City operate amend- the 1967 Lease nor its first seven Thus, test, park under second itself. for, necessity speak ments to either the negotiations for the Lease and its amend- of, improve- capital allocation of the costs ments are administrative acts undertaken to ments made to the structure that exceed carry public policy out the decision to lease Lease, court’s find- the life of the the trial operate rather than and other ing accord with evidence. Royal Gorge concessions in the Park. financing that the lessee is We also note conclude that the Lease itself Since we capital improvements, the entire cost of the previously estab- merely carried out the of rent with the to receive a reduction transferring operational policy of all lished lessee, equivalent expended by to the costs responsibilities for the and maintenance reflecting City, of the for the benefit private company, and is there- to a improve- on such expended the actual costs character, in it is clear fore administrative ments, is no exclusive of interest. There eighth amendment is also adminis- that the Agreement that re- provision in the Lease Because the under the third test. trative im- capital to make quires the each of is administrative under amendment improvements de- provements, particularly Zwerdlinger in three tests set forth the- extending life 84 termined to have a useful of the reser- Margolis, it falls outside years beyond term of the Lease. power in article of the referendum vation 1, Y, section of the Colorado Constitution. City of the Council carried out The action obligation placed upon it to continuing City Provisions B. of Referendum City and be- preserve property of Charter financing that, of yond chose a method that, if even improvements without Plaintiffs next contend capital in is administrative Improvements eighth amendment municipal borrowing. 452

character, City grants range legislative the Canon Charter of plaintiffs activities. As right point out, III, them the to refer the article amendment to section 6 of the Char ter, 1, City’s IX, MEASURES, Article section of entitled VOTE ON ALL electors. provides City provides that that “Action of the shall Canon Charter Council “[t]he ordinance, be power upon proper resolution or motion.” In initiate ordinances light provision, of this the use term petition adopted by and refer measures IX, 1, “measures” in article section qualified electors, council to a indicates vote right that the referendum under sec that by proper petition, hereby is reserved to passed tion only extends not to ordinances city.”3 qualified electors of the Plain- Council, City but to resolutions and upon tiffs have seized the word “measure” motions, well, provided as that those mo usage inescapably and reason that its leads legislative tions or resolutions are char to the conclusion that the drafters intended Munn, acter. See Greenlee 262 Ark. powers to extend to admin- 663, (“measure” (1978) 559 S.W.2d 928 de disagree. istrative decisions. We “legislation character,” every fined as of We note at outset citi any resolution, ordinance, including adopt of cities are free to zens Colorado charter); City Gould v. Council New expansive providing charters more ref 302, buryport, 392 Mass. 465 N.E.2d 258 powers erendum than those mandated (1984)(citing defining statute “measure” as V, article section of the Colorado Consti ordinance, resolution, including “an order 302; 638 Margolis, tution. P.2d at Zwerd council.”); passed by vote Gor 1076; 194 571 P.2d at linger, Colo at City Peabody, man v. 312 Mass. 45 Colo, Burks, 70-71, 142 P.2d at 349 (1942) (referendum N.E.2d right question before us is therefore not applied all passed by city “measures” people whether Canon have the council or school committee included ordi power expand right, the referendum but nances, resolutions, orders, votes); cf they whether have fact so. done McQuillin, Municipal 5 E. Corporations argue that the distinction be- (3d 1981) (stating 16.54 n. ed. that a § initiating tween referring ordinances and power extending statute of initiative IX, measures in 1 of section and referendum to “ordinances or other Charter indicates that the refer- amendments). measures” includes charter legislative endum is not limited to Indeed, legisla often cities exercise their seeking In matters. to determine the powers tive the form of resolutions. See referred, scope measures that can be Authority Superior Housing Eureka v. plaintiffs cite other several sections of the Court, Cal.2d P.2d n support proposition Charter (1950) (Shenk, J., concurring and dissent measures, IX, in article used ing). includes referral resolutions that are Zwerdlinger, held we that while the Although administrative in character. we provided Aurora Charter that the ref- agree “measures,” that the term as used in ordinances,” power applies erendum to “all context, than term is broader “ordi- except exemptions, listed the charter re- nances,” it does follow the term power only served the referendum as to every so broad as to include administrative Colo, “all ordinances.” 194 every resolution and administrative action 196, 571 P.2d at 1076-77. That conclusion undertaken Council. recognition was based on the ex- IX, reading language article right tension of the referendum to adminis- 1, we that term section believe “mea- trative actions could result in chaos for apply governments. sures” was intended to to a wide local We Id. believe that passed by qualified 3. Section 5 of article XX of the Consti- a vote Colorado council to of the tution, cities, electors, relating by qualified to home rule states that and for the initiative provide may they by "each charter shall also for a reference electors such as ordinances therefor, proper request.” upon petition petition of measures reasoning ap- forth in Zwerdlinger set tion to an directly individual who is not plies here, equally that, and hold absent a voters, helping accountable to the thus to specific provision contrary, charter to the higher maintain a accountability level of reservation of the referendum as to “mea- municipal government. Since we find this applies only sures” to those measures that reading equally plausible to that asserted Thus, are in character. while by plaintiffs, IV, article section does not city charter may extend the referendum provide a clear statement that administra- power purely to matters are adminis- tive acts are referable. character, trative in the burden such an Finally, plaintiff X, looks to article sec- place operation extension would on the support tion to its claim that the refer- government unwilling local makes us to IX, power endum in article section ex- charter, read such an extension into a tends to all administrative actions of the absent clear statement in the charter. section, Council. That entitled TEMPO- Contrary plaintiffs’ assertion, to we do not PERMITS, RARY AND pro- REVOCABLE present find such a statement here. vides that IX, itself, In addition to article section may The Council permits issue III, 6, plaintiffs and article rely section on any portion use of any of a street for provisions asserting two other Charter occasion, special nature; temporary in its IX, that “measures” in article section may and it permits, upon also issue such include administrative actions. The first terms and these, conditions and for such IY, consid- provides article section fee, permit may eration or as it deem may employ Council an Ad- advisable, any portion for the use of of a perform any ministrator to all or admin- public alley by street or a railroad com- powers istrative and executive and duties pany, law, company, motor bus or other carri- vested it this charter or may delegate persons property, er of any doing to such Administrator when duties, powers or all such subject, so shall serve the convenience. however, any rights people of the permit Provided that such shall be exercisable initiative and ref- period only, for an indefinite and be sub- provided.... erendum as in this Charter ject to revocation at the will of the Coun- City by cil or of the electors of the exer- argue that since the Administra- cise of the initiative and referendum delegated only tor can be administrative electors, powers, and executive powers “the drafters of this herein reserved to provision interpret further, must provided the initiative that no such tem- powers and/or referendum reserved ar- porary permit shall revocable be apply ticle IX to to administrative matters granted unless written consent shall be under at least some circumstances.” We property first obtained of all owners who First, agree. do not we note that the refer- may thereby. be affected IV, “any rights ence section X, Charter, art. sec. 14. people” possibility admits to the Plaintiffs, Company, right may the referendum not extend to the suggested interpretations different have all powers delegated to the Administrator. However, for this section. we need not Second, plausible it seems us more precise provi- effect of this determine by making delegations to the Administrator sion to settle the issue before court. subject referendum initiative and X, 14, does, plain- Even if article rights people, gives Charter contend, grant power tiffs over people right to override the Council’s granting arguably administrative act delegate decision to one of its administra- temporary permits, or revocable it does not powers, rather than the tive executive signifies intent to ex- follow that this right particular to revoke a administrative power the referendum over all admin- give tend decision. Such a reservation would Rather, assuming, prevent delega- arguen- istrative acts. the electors do, provision grants presently generated by that this referendum revenues the unde- act, veloped single a property. rejecting argu- over administrative this spe- development plan section no than a ment that the does more establish violated prohibition against gov- the constitutional a power. cific extension of the referendum credit, such, V, pledge ernmental of we provides As held that article section the single, specific exception proves that Denver is not indebted as a result of the that, specific rule a and exten- absent clear financing tax-allocation scheme. The ob- sion, legisla- applies only the referendum to ligation solely incurred is DURA’s. The nothing tive matters. Since we find within authorizing DURA resolution the bonds provisions clearly that would provides Charter that only DURA is obli- provide gated a similar extension to to repay indebtedness, cover the bonded bar, plaintiffs financing case at we hold that are not scheme bears this entitled to a under out.... has no pledge the Canon been of [T]here City Denver’s to Charter. credit DURA. presents 618 P.2d at 1383. case at bar

III. precise parallel Here, Byrne. a to the con- obligation parties next tractual to third contend that the district improvements eighth court construction of to holding erred that XI, Royal Gorge Bridge is solely that of amendment does not violate article sec- Company City. Although and not tions 1 and of the Colorado Constitution. City participating in the modernization provides Section 1 city shall ... “[No] by allocating project portion a of debt, responsible any ... become con- generated it, tax and toll by revenue liability tract or any person, company or not does constitute an unconstitutional corporation, public private, or in or out of pledge of City’s credit Company. to the state.” city adds that Section ... “[No] Byrne, 618 P.2d at 1383. to, shall grant make donation or or in any corporation aid of or company_” ... reject We plaintiffs’ next conten Const, XI, Colo. art. secs. Plain- eighth tion that the a amendment is dona argue tiffs eighth that the amendment vio- In Byrne, tion. we also held allo provisions by mingling lates these cation of revenue to in redevelop assist funds, private by making City “re- grant ment did not a or constitute donation sponsible portion a contract private individuals violation liability of ... Company to maintain the XI, Constitution, section despite Bridge,” by making “a donation fact private were interests indi grant to or aid of Company.” the ... rectly Byrne, P.2d benefited. at 1383. Upon analysis, reject we each of these con- Thus, while bemay indirectly tentions. eighth amendment, by benefited allocation revenue We first conclude that the did not, law, modernization does as a matter of pledge not its credit in violation of article XI, violate article Constitu XI. In Authority Denver Urban Renewal tion. (Colo.1980), Byrne, v. 618 P.2d 1374 we cooperative agreement held that argument between eighth Plaintiffs’ Authority Denver Urban Renewal amendment is somehow a donation or aid (DURA) corporation of Denver for is similarly devel refuted opment of the West Enterprises Colfax Urban Renewal Perl-Mack and Coun- Project Denver, not did create an unconstitutional Colo. ty 568 P.2d 468 pledge (1977), project credit. The was financed developers where the to con- were bonds, DURA, tax-allocation issued a sewage system struct collection and then retired, part, through convey which would be system at no Denver cost. special charge allocation to fund of the then incremen The would for its tal in tax beyond increase revenues those services. The court held:

455 agreement Nor can the be referred violate article XI of the Colorado Con- any meaningful pledge Moreover, in sense as a of stitution. City’s even if the deci- city’s private corpo- credit in aid of a forego sion to some of its entitlement to ration, in contravention of Colo. Const. rent constituted commingling public of and XI, city, exchange in Art. Sec. 2. The private funds, eighth amendment falls completed system, Montbello’s sewer public purpose within the exception to the promised charge not to Montbello for the prohibition. constitutional See Gude v. services issue. Lakewood, City 691, 636 P.2d 695 n. 2 of Colo, (Colo.1981); In Interrogatories by re 9, 194 at P.2d at 472. court 568 The Senate, 298, Colorado State 193 Colo. 306- relationship further stated that “the be- 07, 350, (1977); 566 P.2d 356 McNichols v. purely tween Perl-Mack and Denver is con- City Denver, 246, and County 131 Colo. and limitations tractual conditions (1955). 280 P.2d 1096 The authorization of imposed by parties are valid.” Id. improvements Royal Gorge to the Here, Perl-Mack, Bridge there is no donation as clearly public purposes serves the valid city since the has received the benefit of an improving extending and the life improved facility life in of a valu- with extended municipal able source of revenue en- exchange agreement forego for its cer- and hancing major brings attraction tain revenues. that visi- City. tors to the argue City Plaintiffs next that the 1 2 XI argue public has violated sections and of article that the purpose by mingling public private and funds. requires City doctrine receive ade- provisions it is true these “ut that, While quate They consideration. contend terly prohibit mingling mon Company obligation because the has an eys private persons, with those of either modernize, pursuant to the Lease to as well directly indirectly,” City Lord v. maintain, bridge, has uncon- Denver, 1, 15-16, County 58 Colo. 143 stitutionally Company por- relieved the of a (1914), commingling P. 288 there is no obligation tion of this because it could have Rather, eighth here. amendment mere compelled Company to modernize the ly changes payments to be made to the City. Leaving at no cost to the City under a valid lease. Unlike situa argument fact aside the that this con- Lord, County tion where the trary express findings to the of the trial attempted help Denver to issue bonds to court, assuming Company pay for the construction costs of the Mof- modernize, compelled could have been Tunnel, fat here has neither issued simply repair replace, rather than expense improve bonds to cover the City, plaintiffs’ at no cost to the any money ments nor transferred or tax argument fails to demonstrate a constitu- receipts Company. to the has tional violation. simply altered its contractual entitlement Mar, Lyman v. Town Bow 188 exchange

to current rents in for the future (1975), plain 533 P.2d 1129 Colo. from moderniza benefits it will receive challenged improve creation of an tiffs Perl-Mack, 9-10, tion. 194 Colo. at 568 See burying of overhead ment district (decision forego P.2d at 472-73 collection utility lines in Mountain Bell and of revenues for services did not vio sewer given Public Service would be XI, relationship late art. sec. since with Despite ownership of the lines. the fact purely city was had contractual plaintiffs’ accepted, arguendo, con we payments neither issued nor made bonds tention that Mountain Bell and Public Ser _ construction). for sewer “in vice would receive a benefit the sense something they paid will be eighth

Since the amendment nei [that] they could have been forced to do without pledge ther constitutes a of credit or dona compensation,” 188 Colo. at 533 P.2d commingling nor in a of munici tion results funds, rejected argument that this private does we pal and the amendment ownership gift (quoted the lines would create a 226 N.Y. N.E. at 224-25, XI, Lyman, Colo. at companies contrary to article P.2d at 1134). held in that Lyman We of the Colorado Constitution. In concluding procedure the for reim- that the in Oswego Just as railroad was bursing did violate bridge they the utilities not article content the with were then XI, using, on Justice land- Bell the we relied Cardozo’s Mountain Public Ser- Company in vice do opinion Oswego Syracuse mark not have need to & R.R. bury If York, legisla- 124 their overhead lines. the v. New 226 N.Y. N.E. 8 up procedure ture wishes to set (1919). to reimburse the expense, utilities for this In Oswego the railroad owned a we prohibited do not believe this is a bridge which needed to be removed and “grant or donation” under the Colorado replaced program part as of a to state Constitution. improve navigability of the Seneca Riv Colo, 225, 533 at P.2d at 1134-35. Sim- legislature provided er. The state for com ilarly, here could have met its pensation despite of railroad the fact obligation installing maintenance without that, law, York it under New could have technology new that would both extend the pay been forced to for the cost of a new bridge useful life of the and increase the bridge. upheld The court this reimburse City’s value of the reversion the end of provision, ment under a constitutional sim Thus, revenues, lease. retention XI, ilar to Article sections 1 and which eventually which will reimburse Com- prohibited giving loaning of state pany improvements share of money in corporations. to or aid of In corresponds to the the City benefits

reaching Lyman, a similar conclusion we will receive in does offend not following relied on analysis Justice XI of the Colorado Constitution. Cardozo: IV. The great state about to execute a was finally argue Compa- public It the doing work. saw that in ny’s was support affidavit insufficient to that work there would be destruction of findings They of the trial court. attack private property. damage Much of recognition pub- the trial of a court’s valid absque injuria would be damnum [dam- contending lic purpose, finding age legal remedy]. for which there is no improvements will extend the use- it damage. None the less would be supported by ful life of the is not inequality result would be in the distribu- view, In admissible evidence. their tion of pay burdens. would Some upon finding Jenks which this affidavit was dearly proportion than more others in to opinion, hearsay based was both inequality benefits received. This agrument therefore inadmissible. This Legislature, fixing in advance the condi- respects. fails in three power tions of had the undertaking, might It to correct. refuse launch an First, plaintiffs failed to raise

enterprise price hardship objections sufficiency these oppression. power There destroy, was Jenks in the affidavit trial court. Formal might and leave loss it where fall. defects in an affidavit are waived in the pay There was also absence of a motion to or other strike ob destruction, and thereby reestablish jection trial court. Associated Press uniformity proportion some Cook, (10th between F.2d Cir. question 1975). benefits and burdens. The was giv Unless the trial court has been Legislature equity whether the opportunity alleged en an correct compensation strong enough error, review, was to mer- on it not be considered will recognition. it hold principle applies We cannot it to be and this to motions for illusory. summary judgment. v. Pearl Cox Invest- Co., 67, 71, above, reject merit 450 P.2d For the reasons stated Colo. we plaintiffs’ claim, (1969); 103(a)(1)(neces- and hold that the trial 61-62 see also CRE finding improvements court’s court). will sity raising objection the trial extend the useful life of the is based principles particular These force apply with findings on sufficient evidence. such Since where, here, plaintiffs failed to contro- clearly of fact are to be set aside unless vert Jenks’s affidavit with an affidavit of erroneous, 52(a), reject plain- C.R.C.P. we own, despite being given their an additional finding tiffs’ contention that this should be ten-day period following grant the court’s set aside here. so. summary judgment which to do conclusion, we hold both that Second, according to the affida plaintiffs are not entitled to a referendum vit, president Company, of the Jenks is eighth on the amendment and that Company since employed by has been amendment is itself not unconstitutional. 1952, knowledge personal and has of the Further, findings of the trial court para set in the affidavit. In matters forth were based on sufficient evidence. The nine, that “the life of graph Jenks states judgment of the district court is affirmed. changes bridge with all of the is at LOHR, J., part concurs in and dissents in years.” long that his least 50 We conclude part. bridge present with the and his association

position president as of the con JJ., DUBOFSKY, join in ERICKSON and for Jenks to stitutes sufficient foundation that concurrence and dissent. testify at trial. life of LOHR, Justice, concurring part accuracy present predic While the of the dissenting in part: may known expectancy tion of life not be respectfully majority’s I dissent to n time, for some is obvious that the concerning holding the issue of refer- present expectancy life which can be has my opinion, city endum.1 In council’s today. proper trial court could known The approval eighth amendment to the ly qualified that Jenks was to testi believe and, such, legislative action lease was a Moreover, fy even if his state to this fact. people referendum subject is to a expectancy regarding ment the life of the V, 1, of the Colorado under article merely opinion, it is bridge is admissible judgment The of the district Constitution. 701, (1) pursuant since it is CRE based and the case should be reversed court (2) helpful perception, own on Jenks’s proceed- remanded for further should be a fact in issue. to the determination of ings.2

Third, plaintiffs, despite ample op power people’s The reservation any file affidavits con portunity, failed to in the constitution must be lib A motion troverting Jenks’s statement. right of the erally construed in favor of the supported by an summary judgment power. Margolis v. people to exercise affidavit, (Colo. Court, 297, no counter-affidavit is to which P.2d 302 638 District filed, and the presents 1981); Zwerdlinger, no issue of fact 194 Colo. Aurora v. (1977). accept 192, 195, the affidavit as The court is entitled to 571 P.2d 1076 V, Robinson, correctly 137 that article sec majority has new present approximately ates at $0.5 million policy expressed by city decision—not the per year city, dollars of revenue for the an in the pas- lease or elsewhere the before approximately amount that constitutes fif- sage eighth amendment—to under- percent budget.3 teen city’s the The take the capital improvement substantial by city amount of revenue derived the from important city an asset. fact that the is projected the increase ap- to to plaintiffs pursue do not line of this reason- proximately per year million by $1.5 dollars ing plain- the obvious Moreover, reason that the year improve- the 2000. the —for object tiffs this by to action the council on ments are calculated to extend the life of grounds the existing obligat- lease the thirty-one years at least ed company improve- to the undertake beyond expiration of the lease in 2001. contemplated ments without contribution Approval lease amendment was sim- city from the not obscure true ply through city the vehicle which coun- —does city’s nature of the action. Citizens expressed cil its decision to undertake this Cf. Against A Supervi- New Jail v. Board improvement provided the mechanism sors, Cal.App.3d 559, 63 Cal.Rptr. 134 36 by city improve- will finance (1976) (proposed ordinance that would re- by city ment. The decision under- quire existing county jail renovation of something significance take of such can rather jail than construction of new was a only legislative be characterized policy as a legislative subject matter and therefore decision, merely not administrative action. initiative). people’s power by majority, As noted one of the Another of the determining “tests” for determining “tests” for an whether act is legislative whether an is or legislative or action adminis is whether administrative trative is act a whether action relates to poli constitutes declaration of subject cy passage permanent general or of a or whether of the act charac simply subject ter or a of a existing legislative policies. temporary special carries out 449; Majority op. at op. 449-450; nature. Majority Margolis v. Mar District Court, 303; Court, golis 303-04; 638 P.2d at Aurora v. District 638 P.2d at Zwerd Colo, linger, 1077; Colo. at Zwerdlinger, 194 571 P.2d at Aurora v. McQuillin, Corporations, 1077; 5 E. Municipal McQuillin, Municipal P.2d at response payments approximately In an their affidavit attached to lease totalled fifteen to summary judgment budget. percent city's defendants' motions for seventeen This is argument However, summary judgment and at oral motions, city on the not otherwise corroborated. plaintiffs represented protest representation, did and it is city accepted purposes amount of revenue derived from the for the of this dissent. question, difficult and the courts of this Applying at 194.4 Corporations, 16.55 § facts, majority to the always this standard consistent or nation have not taken passage of the lease concludes with positions when confronted reconcilable “clearly adminis- is an amendment at issue McQuillin, Munici these situations. See act,” op. at because it majority trative 16.59; 13 E. pal Corporations, 16.55 to §§ with a of a lease relates to the amendment McQuillin, Municipal Corporations, it limits date and because fixed termination 1971). 37.56, (3d Be 37.80 ed. revised §§ period during the in tolls to a the reduction of each proper cause the characterization necessary lessee existing lease term dependent upon facts such decision is so improvement portion of the recoup im concerning the characteristics of each majority op. city, to be borne costs in which the provement and the context majority's analysis at 450. The unpersua- is made, improvement is to it would be be simply sive. This is not a lease amendment unwise to hold as a matter of law beyond with little effect the life of a rela- every governmental decision to undertake tively Instead, short leasehold. the lease improvement legislative act. capital financing amendment is a mechanism However, present under the circumstances which the has committed itself to ac- here, concluded that ed it must be quire pay capital improvement for a Council of Canon decision significance vast city, affairs of the improve contemplated to undertake people government improve- its and its —an Royal Gorge Bridge was a ments to the ment that will have a life and an effect for have public policy declaration of that will thirty years beyond at least the life of the impact years to come and therefore existing lease. This is not an action of a act, to referendum subject was a character, temporary special and the du- Y, 1, of the Colorado impact ration of its should not under article be measured solely by the time in neces Accordingly, which the will it is not Constitution. generate sufficient income to cover the council’s deci sary consider whether the improvements. legisla- costs of the It is a subject to referendum under sion is also nature, act general tive of a substantial and IX, Charter of having long-term impact on finances. the referendum City or whether hardly comparable This is to a decision con- more ex city charter is power under the cerning professional “a contract for ser- people reserved to the pansive than that police vices or for a roof on a station.” See Constitution. See under the Colorado majority op. at 450.5 194 Colo. at Zwerdlinger, v. Aurora of 571 P.2d at 1076. construct, city’s Whether a decision to judgment the district court should modify purchase any particular improve remanded. legislative ment or administrative is a be reversed and the case is legislative, legislative one an amendment to that act is also If an act is deemed to be under 4. majority | legislative. majority op. "tests" outlined in the See the first two 451. opinion Margolis Zwerdlinger, “test,” and in it is articulating majority may this third unclear whether that act must be examined un- holding Margolis our v. Dis have overstated consequences “test” and what the der other Court, trict see 638 P.2d at which was sim “test,” if, contrary would be under this second "rezoning ply what decisions—no matter is reached. The interrelation be- conclusion parcel the size of the of land involved—are tween the first two tests has never been ex- subject legislative in character and to [refer uncertainty plained in our decisions. This need Id. Constitution].’’ endum under the Colorado here, city’s action is not be addressed Margolis suggest at 304. There is much in against legislative when measured either of the rezoning may context that this conclusion in the first two tests. expansively ruling not be read legislative act is also necessar amendment to a action is 5. Because the council’s legislative. apply ily need to As there no “tests,” against measured the first two when test, explore is no reason to third there apply majority’s third there is no reason to “test,” issue further. original provides that if an act is say I am authorized to that ERICKSON DUBOFSKY, JJ., join this concur-

rence and dissent. UNAUTHORIZED PRACTICE OF LAW

COMMITTEE OF SUPREME COLORADO, Petitioner, COURT OF INC., UNITY, EMPLOYERS Gibbens Co., Inc., Gates, & McDonald

Co., Respondents, State of Colorado and Colorado

AFL-CIO, Intervenors. No. 84SA38. Donnelly, Prosecutor, Linda Disciplinary Supreme Colorado, Court of Denver, petitioner. En Banc. Eiberger, Stacy Smith, Rodney & L. Smith, Jostad, Denver, March John A. respon-

dents. Wilderman, Denver,

Jonathan for inter- venor Colorado AFL-CIO. Woodard, Atty. Gen.,

L. Duane Timothy Arnold, Denver, Atty. Gen., R. First Asst. for intervenor State.

ROVIRA, Justice. January Prac- Unauthorized tice of Supreme Law Committee of the petitioned Court Colorado this court to issue an order requiring respondents, Employers Unity, Inc., and the Gibbons Co., Inc., why to show they cause should enjoined be from not further unauthorized practice February 23,1984, On law. granted petitioner’s court Motion for Leave petition, thereby allowing pe- to Amend its Gates, titioner name McDonald and Co. respondent, as an additional and ordered respondents they cause why show enjoined alleged should be from the

practice unauthorized of law. Bank v. notes true. Central 409, 419, (1958); Constitution re 326 P.2d tion of the Colorado Colo. Thornton, only with 29 Colo. of referendum served Durnford (1971); legislative are char respect to acts that App. 483 P.2d 449; Margolis v. op. 56(e).' Majority acter. C.R.C.P. Gorge Company. plain- majority Royal The parts IV of the 1. I concur in III and summary opinion. motion for did not file a cross tiffs judgment. granted the motions for 2. The district court summary judgment filed defendants Court, 302; (3d 1981). District 638 P.2d at Aurora v. 16.55 at 194-95 ed. revised § Colo, 194-95, Zwerdlinger, standard, applying P.2d plaintiffs argue this believe, however, at 1075-76. I that the that the council’s action was be- governing standards the characterization cause purported policy it reversed a ex- governmental of a legisla- action as either pressed city lease would not tive or improperly administrative been have bear of the costs of maintenance or applied majority, the facts with bridge. city modification re- the consequence that the result reached is sponds, and the district court ma- incorrect. jority agree, that there merit is no to this argument require because the lease did outset, majority At the fundamental- capital lessee to make improvements to ly misconceives the nature of the action the bridge contemplated of the nature here. city By taken approving council. op. But, majority See at 451. this pre- is amendment, the council did more than cisely why legisla- reason action amend a lease. It decided to undertake a Accepting tive. the district court’s reason- significant capital improvement at a cost to able requir- construction lease as not city capital million. The $1.5 im- ing capital improve- the lessee to make provement gener- involves a structure that ments means made a

Case Details

Case Name: Witcher v. Canon City

Court Name: Supreme Court of Colorado

Date Published: Mar 17, 1986

Citation: 716 P.2d 445

Docket Number: 84SA111, 84SA204

Court Abbreviation: Colo.