Vagneur v. City of Aspen

• Decision Date: 11 February 2013
• Docket Number: Supreme Court Case No. 09SC1022
• Citation: 295 P.3d 493
• Parties: Curtis VAGNEUR and Jeffrey Evans, Petitioners v. CITY OF ASPEN; Kathryn Koch, in Her Official Capacity as City Clerk for the City of Aspen; Karen Goldman, in Her Official Capacity as Administrative Hearing Officer Pursuant to Section 31–11–110(3), C.R.S. (2009); Les Holst; Clifford Weiss; and Terry Paulson, Respondents.
• Court: Colorado Supreme Court

295 P.3d 493

Curtis VAGNEUR and Jeffrey Evans, Petitioners

v.CITY OF ASPEN; Kathryn Koch, in Her Official Capacity as City Clerk for the City of Aspen; Karen Goldman, in Her Official Capacity as Administrative Hearing Officer Pursuant to Section 31–11–110(3), C.R.S. (2009); Les Holst; Clifford Weiss; and Terry Paulson, Respondents.

Supreme Court Case No. 09SC1022

Supreme Court of Colorado.

February 11, 2013

Certiorari to the Colorado Court of Appeals; Court of Appeals Case No. 08CA2552.

Attorneys for Petitioners: Heizer Paul Grueskin LLP, Edward T. Ramey, Denver, Colorado, Wright & LaSalle, LLP, Gary A. Wright, Aspen, Colorado.

Attorneys for Respondents City of Aspen, Kathryn Koch, and Karen Goldman: John P. Worcester, City Attorney, Jim R. True, Special Counsel, Aspen, Colorado.

Attorneys for Respondents Holst, Clifford Weiss, and Terry Paulson: Klein, Coté & Edwards, LLC, Herbert S. Klein, Lance R. Coté, Aspen, Colorado.

Attorney for Amicus Curiae Colorado Common Cause: Holland & Hart, LLP, J. Lee Gray, Greenwood Village, Colorado.

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶ 1 We granted certiorari review to consider whether two citizen-initiated proposed ordinances regarding the design and construction of a state highway entrance to the City of Aspen are administrative in character and therefore outside the scope of the initiative power reserved to the people under article V, sections 1(1) and 1(9) of the Colorado Constitution. ¹

¶ 2 In 2007, Petitioners Curtis Vagneur and Jeffrey Evans (collectively, “Proponents”) submitted two initiative petitions to the Aspen City Clerk regarding the highway entrance to Aspen. Respondents Les Holst, Clifford Weiss, and Terry Paulson (collectively, “Protestors”) filed objections to the initiative petitions. Following a hearing, an administrative hearing officer determined that the proposed initiatives sought to ask the electors of Aspen to vote on a change in use of open space to authorize a different entrance to Aspen; to “mandate specifics regarding the design, location, and mitigation measures for that roadway”; and to “mandate the amendment or rescinding of existing documents authorized by the City Council” that conflict with the elements or conditions of the proposed roadway. The hearing officer concluded that the proposed initiatives “intrude[d] on administrative responsibilities of city staff” and therefore were improper subjects of the initiative process.

¶ 3 On review, the district court and the court of appeals affirmed the hearing officer's determination, concluding that the petitions concerned administrative matters and therefore could not be placed on the ballot under the people's initiative power.

¶ 4 We affirm. We hold that the proposed initiatives are administrative in character and therefore are not a proper exercise of the people's initiative power. The proposed initiatives seek to circumvent a complex and multi-layered administrative process for the approval of the location and design of a state highway—a process incorporating both technical expertise and public input and involving not only the City of Aspen, but also the Colorado Department of Transportation and the Federal Highway Administration. Although the Proponents contend that the proposed initiatives are legislative because they propose a change in the use of an easement across City-owned open space to implement the proposed new design, the initiatives fundamentally seek to change the design that was previously approved by the state and federal agencies in the lengthy administrative process required by federal law. In so doing, the initiatives, on their face, rescind “all enactments and authorizations inconsistent herewith,” thereby rescinding or amending right-of-way easements previously conveyed by the City in furtherance of that administrative decision. We conclude that these initiatives impermissibly intrude on the administrative power of the City to manage City-owned open space.

I. Factual and Procedural History²

¶ 5 Colorado State Highway 82 is the primary route through the Roaring Fork River Valley between the City of Glenwood Springs and the City of Aspen. Local debate has continued since the 1960s over whether and how to modify the design of the highway to address high accident rates and reduce traffic congestion. See Friends of Marolt Park v. U.S. Dep't of Transp., 382 F.3d 1088, 1092 (10th Cir.2004). The configuration of the highway as it approaches and enters the City of Aspen from the northwest (the “Entrance to Aspen”) has been a particularly contentious topic. As the highway approaches the City of Aspen, it travels southeast past the Buttermilk Ski Area before turning slightly north at a roundabout connecting Maroon Creek Road and Castle Creek Road. Under the current alignment, the roadway continues northeast, then winds through two ninety-degree turns (“S-curves”) before it connects to Main Street in downtown. The debate over the final section of highway between the roundabout and Main Street has centered on whether to constructa more direct alignment of the highway across City-owned property into Main Street (thus eliminating the S-curves); whether to have a two- or four-lane configuration for vehicular traffic; and whether and what type of mass transportation system (bus or light rail) to implement. Many votes have taken place during the last four decades, with no definitive resolution.

A. Early Evaluation

¶ 6 Because State Highway 82 is part of the National Highway System and receives federal funding, the highway cannot be modified without the participation and approval of both the Colorado Department of Transportation (“CDOT”) and the Federal Highway Administration (“FHWA”). See generally42 U.S.C. § 4332 (2006); 23 U.S.C. §§ 106, 302 (2006).

¶ 7 In 1994, CDOT and FHWA, along with elected officials and staff from the City of Aspen and Pitkin County and members of the public, began to research and analyze various options to redesign the Entrance to Aspen. A series of federal highway and environmental laws, including the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–47 (2006), the Department of Transportation Act of 1966, Pub.L. No. 89–670, 80 Stat. 931 (codified as amended in scattered sections of 49 U.S.C. (2006)), and the Federal–Aid Highway Act of 1968, Pub.L. No. 90–495, 82 Stat. 815 (codified as amended in scattered sections of 23 U.S.C. (2006)), set forth the Environmental Impact Statement (“EIS”) process required for evaluating proposed design alternatives. Participants in the process included CDOT and FHWA representatives; officials and staff from Aspen, Pitkin County, and Snowmass Village; engineers; and individuals with professional expertise in a variety of disciplines, including air quality, water quality, wildlife, floodplains, archaeological resources, geotechnical studies, and historic preservation. The EIS process involved extensive public input and technical studies and resulted in a series of draft, supplemental, and final environmental impact statements that were released to the public from 1995 to 1997. This process culminated in 1998 with a Record of Decision, which documented FHWA and CDOT's final decision on the Entrance to Aspen project, based on the requirements of NEPA, the Department of Transportation Act of 1966, the Intermodal Surface Transportation Efficiency Act of 1991 (“ISTEA”), the 1990 Clean Air Act Amendments, project data, alternatives considered, and public and other agency input, including comments received after the Final Environmental Impact Statement (“FEIS”) was published in August 1997. See Colo. Dep't of Transp., State Highway 82 Entrance to Aspen Record of Decision (Aug.1998), http:// www.coloradodot.info/projects/SH82/entrance-toaspen/ documents/1998ROD.pdf. ¶ 8 In 1995, the EIS process participants, with input from citizens, established ten community project objectives for the Entrance to Aspen: (1) provide a process responsive to local community-based planning efforts, with special attention to limiting vehicle trips into Aspen to create a less congested downtown; (2) provide forecasted transportation capacity for the year 2015 by identifying a combination of travel modes, alignments, and transportation management actions to achieve a stated community goal of limiting year 2015 traffic volumes to levels at or below those of 1994; (3) reduce the high accident rate on Highway 82 and the existing S-curves and provide safety improvements for bicyclists and pedestrians; (4) develop an alternative that minimizes and mitigates adverse impacts by using a process that follows relevant federal law; (5) develop an alternative that fits the character of the community and is aesthetically acceptable to the public; (6) develop an alternative that is financially realistic with respect to current and expected funding levels and programs; (7) develop an alternative that meets the requirements of the 1990 Clean Air Act Amendments; (8) respond to the need for an alternate route for emergency response to incidents within and around Aspen; (9) provide a system that reflects the small town character and scale of the Aspen community and enhances the quality of life for visitors; and (10) provide an alternative that allows for future transit options and upgrades.

¶ 9 The EIS process participants evaluated numerous proposed alternatives in terms of four main components: alignment (existing, direct, modified direct); lane configuration (two-, three-, four-lane, or a combination of general traffic and dedicated vehicle and/or transit lanes); profile (at grade, below grade, above grade); and mode of traffic (general traffic, high-occupancy vehicle (“HOV”), buses, or light rail). The screening process used progressively more demanding criteria at each level. The screening levels included a reality check, a fatal flaw screening, and a comparative evaluation. The reality check eliminated options that were...