City of Aurora v. Zwerdlinger, 75--791

• Decision Date: 08 July 1976
• Docket Number: No. 75--791,75--791
• Parties: CITY OF AURORA, Colorado, a Municipal Corporation, Plaintiff-Appellee, v. Jack ZWERDLINGER et al., Defendants-Appellants, and J. D. Macfarlane, Attorney General of the State of Colorado, Defendant. . II
• Court: Colorado Court of Appeals

Page 998

558 P.2d 998

38 Colo.App. 106

CITY OF AURORA, Colorado, a Municipal Corporation, Plaintiff-Appellee, v. Jack ZWERDLINGER et al., Defendants-Appellants, and J. D. Macfarlane, Attorney General of the State of Colorado,

Defendant.

No. 75--791.

Colorado Court of Appeals, Div. II.

July 8, 1976.

As Modified on Denial of Rehearing Oct. 21, 1976.

Certiorari Granted Jan. 17, 1977.

Leland M. Coulter, Richard Kaufman, Aurora, for plaintiff-appellee.

Bader & Dufty, Robert A. Dufty, Denver, for defendants-appellants.

Dawson, Nagel, Sherman & Howard, Robert M. Johnson, Michael L. Cheroutes, Denver, for amicus curiae Colorado Municipal Bond Dealers Assn., Inc.

Susan K. Griffiths, Wheat Ridge, for amicus curiae Colorado Municipal League.

VanCISE, Judge.

On July 22, 1974, the Aurora City Council enacted Ordinance No. 74--146 (the ordinance), in which the rates, fees and charges for water supplied to residents of the city were raised A referendum petition, proper in form and content and bearing sufficient signatures, was timely filed with the city. The petitioners protested the ordinance and demanded that, if the ordinance were not repealed by the council, the matter be submitted to a vote of the qualified electors of the city for their approval or rejection. Instead of repealing the ordinance or calling an election on the matter, the city initiated this declaratory judgment action against the defendants individually and as representatives of the class of persons who had signed the referendum petition.

At an evidentiary hearing, over the defendants' objections of irrelevancy and immateriality, the city presented evidence concerning the reasons for the increase in water rates. No claim was asserted nor evidence offered to show that the new rates were in any way unreasonable or discriminatory. The trial court held that the ordinance was not subject to referendum. Challenging that judgment, defendants appeal. We reverse.

In support of the judgment, the city states that the establishment, of a water rate is an eecutive and administrative function of the city council and is necessary for the operation of the city utilities department, an operation which is proprietary and non-governmental in nature. We agree. However, it does not follow that, as contended by the city, the act of establishing such rates is not subject to the referendum provisions of the city charter.

The Aurora City Charter, Art. VI, Sec. 6--4, provides that:

'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.' (emphasis supplied)

Accordingly, inasmuch as a water rate ordinance is not included with the specified exemptions to the general referendum power stated in the Aurora Charter, such an ordinance is subject to that power. See Fort Collins v. Dooney, 178 Colo. 25, 496 P.2d 316; Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653; Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692. Nowhere in the charter is there any exception made for ordinances pertaining to proprietary functions.

The trial court, justification of the limitation it placed on the referendum power, determined that ...