Webb v. City of Black Hawk

Citation295 P.3d 480
Decision Date04 February 2013
Docket NumberSupreme Court Case No. 11SC536
PartiesJamie WEBB, Jeffrey Hermanson, and Michaleen Jeronimus, Petitioners v. CITY OF BLACK HAWK , Respondent.
CourtSupreme Court of Colorado

OPINION TEXT STARTS HERE

Certiorari to the District Court, Gilpin County District Court Case No. 11CV17, Honorable Jack W. Berryhill, Judge.

Judgment Reversed

Attorneys for Petitioners: Shoemaker Ghiselli + Schwartz LLC, Paul H. Schwartz, Andrew R. Shoemaker, Alice Warren-Gregory, Boulder, Colorado.

Attorneys for Respondent: Hayes, Phillips, Hoffman & Carberry, P.C., Corey Y. Hoffmann, Jefferson H. Parker, Denver, Colorado.

Attorneys for Amicus Curiae The Colorado Municipal League: Loyal E. Leavenworth, P.C., Mary Elizabeth Geiger, Loyal E. Leavenworth, Carbondale, Colorado, Rachel L. Allen, Denver, Colorado, for Amicus Curiae The Colorado Municipal League.

En Banc

JUSTICE HOBBS delivered the Opinion of the Court.

¶ 1 This appeal from the district court of Gilpin County concerns whether a home-rule municipality has the authority under article XX of the Colorado Constitution to ban bicycles on local streets absent a suitable alternative bike route as provided by state statute. Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus (Bicyclists), seek review of the trial court's decision upholding the validity of the City of Black Hawk's (Black Hawk) municipal ordinance banning bicycling from outside of Black Hawk into and through it. The City cited and fined the Bicyclists for riding their bicycles on Gregory Street. They claim that Black Hawk's ban is invalid because it conflicts with a state statute requiring an alternative route for the Bicyclists to travel on should the city prohibit bicycling on certain streets.1 We agree that state law preempts Black Hawk's current ordinance.

¶ 2 Black Hawk is a home-rule municipality under article XX of the Colorado Constitution. As such, it has plenary authority to regulate matters of local concern, but it has limited authority when its regulations conflict with state statutes implicating matters of statewide concern. In July 2009, the Black Hawk City Council passed Ordinance 2009–20, granting authority to ban bicycles and other nonmotorized vehicles from any city street where it found their use to be incompatible with safety and the normal movement of traffic. The ordinance, ostensibly based on traffic and engineering studies, pointed to the heavy use by commercial traffic on the city's narrow roads—specifically by over-the-road coaches and delivery vehicles—as a basis for the safety concern. 2

¶ 3 The ordinance also amended the Black Hawk Municipal Code, eliminating language taken from the Colorado model traffic code that required there to be a suitable alternative bike path within 450 feet of a street before the city may prohibit bicycling on a roadway.3 Black Hawk then hired a consulting firm to prepare a compatibility study of bicycle, automobile, and over-the-road coach traffic on certain streets within the city limits.The study, based on Federal Highway Administration methods and completed in October 2009, concluded bicycle compatibility was “moderately low” to “very low” on the studied Black Hawk streets.

¶ 4 In January 2010, Black Hawk enacted Ordinance 2010–3, prohibiting bicycles on virtually all of Black Hawk's streets. The ordinance also ordered the city manager to promulgate rules that would continue to allow bicycle traffic that originated within the Black Hawk city limits—the ordinance only prohibited cyclists passing through Black Hawk, not those beginning their rides there (the “local origin exception”). No alternate passage for bicycles was provided, however, as a result of Black Hawk repealing its former provision—that was then in compliance with the state statute—requiring an alternate bike path within 450 feet of the right-of-way on heavily traveled streets.

¶ 5 We conclude that Black Hawk's bicycling ban is not a matter of purely local concern; rather, it is a matter of mixed state and local concern. We hold that Black Hawk's current ordinance conflicts with state law and is preempted. The statute requires Black Hawk to accommodate bicycle traffic as provided by section 42–4–109(11), C.R.S. (2012).

I.

¶ 6 The Black Hawk area sprang up in spring 1859 following the discovery of gold by Georgia prospector John H. Gregory in a narrow, mile-long gulch roughly thirty miles west of Denver just off the North Fork of Clear Creek.4 Gregory's find was a good one—the first lode strike in the state, leading to the discovery of numerous gold veins nearby—and soon earned the area the reputation as “the richest square mile on Earth.” 5

¶ 7 The Gregory Mining District was organized in summer 1859, becoming the first mining district in the territory. The district became generally known as Mountain City,” later including the towns of Black Hawk and, only a mile up-canyon, Central City.6

¶ 8 Situated at the confluence of Gregory Gulch and the North Fork of Clear Creek, Black Hawk sits at an elevation just over 8,000 feet, in Gilpin County. Black Hawk—most accounts claim that the name originated from an early stamp mill brought in from Illinois and named for the famous Illinois Sauk Indian Chief—was incorporated by an act of the territorial legislature on March 11, 1864. Central City was also incorporated on that date, but the two closely located towns developed different social characteristics. Black Hawk, owing to its location on Clear Creek which allowed for the processing of ore, became the city of mills and laborers.

¶ 9 A mile away at the top of the canyon, bankers, mine owners, and the county government established Central City as the regional trade and commercial center.7 However,other towns radiated around Black Hawk and Central City and made the two appear to be a single town.8 At its height, Gilpin County, including both towns, held a population of 6,690 residents around 1900. By 1925, the population waned and Black Hawk had only one operational mill and the population fell to 200 persons.9 Black Hawk's population remains small, 118 in the 2010 Census, giving Black Hawk the distinction of being one of the least populous cities in the state.10

¶ 10 Today, in keeping with the town's tradition, a new class of hopeful prospectors regularly descends upon Black Hawk seeking fortune—casino gamers. In 1990, after suffering decades of stagnant economic development, Black Hawk partnered with Central City and Cripple Creek to introduce a ballot initiative allowing limited-stakes gambling in the commercial districts of the towns, with a heavy tax earmarked for statewide historic preservation efforts. 11 The ballot measure passed overwhelmingly and Black Hawk retrofitted existing historical structures into casinos and built new, large, modern casinos on the broad, flat locations that once housed ore mills.12

¶ 11 On October 1, 1991, casinos opened for business, immediately attracting new investments and attention to Black Hawk reminiscent of the previous century. Colorado voters continued to support gambling and in 2008 voted in favor of a constitutional amendment allowing the towns to increase maximum bets from five dollars to one hundred dollars, offer craps and roulette games, and to allow casinos to remain open for twenty-four hours. Colo. Const. art XVIII, § 9(7). Black Hawk now hosts nearly twenty separate casinos—more than Atlantic City, New Jersey. Due to its primary location for those traveling from the Denver area and its accommodation of over-the-road coaches, Black Hawk has maintained the lion's share of the state gaming proceeds. Over the 2011 calendar year, gaming in Black Hawk earned $550,883,660 in adjusted gross proceeds, almost three-quarters of the entire state earnings.13

¶ 12 On June 5, 2010, Webb, Hermanson, and Jeronimus were completing a long-distance bicycle ride beginning and ending in Golden, passing through Idaho Springs, Central City, and then Black Hawk. After riding from Idaho Springs to Central City, the Bicyclists headed south to Black Hawk to meet state highway 119, the Peak–to–Peak Highway. While riding through Black Hawk along Gregory Street, the only street connecting Central City to the Peak–to–Peak Highway, the Bicyclists were pulled over and ticketed for violating section 8–111 of the Black Hawk Municipal Code, the provision prohibiting bicycling on several streets, including Gregory Street, in the City of Black Hawk. Section 8–111, added by Ordinance 2009–20, states:

Restricted Streets. Upon erection of appropriate signage, bicycles and other non-motorized traffic found to be incompatible with the normal and safe movement of traffic shall be prohibited, in whole or in part, from operation on any street, highway, or public way, the use of which the city has jurisdiction and authority to regulate.

Black Hawk Ordinance Number 2010–3, prohibiting bicycles based on section 8–111, states:

Section 1. Legislative Findings.

...

The City of Black Hawk has received an engineering and traffic investigation which provides the basis for the legislative determination that bicycles and other non-motorized traffic should be prohibited on Main Street, Black Hawk Street, Gregory Street, Bobtail Street, Mill Street, Richman Street, Selak Street, and Miners' Mesa Road within the corporate limits of the City because such traffic is incompatible with the normal and safe movement of vehicular traffic.

Section 2. Bicycles Prohibited. Subject to the provisions of Section 3 of this Ordinance bicycles and other non-motorized traffic are hereby prohibited on Main Street, Black Hawk Street, Gregory Street, Bobtail Street, Mill Street, Richman Street, Selak Street, and Miners' Mesa Road within the corporate limits of the City of Black Hawk.

Section 3. Implementation. The City Manager or the City Manager's designed is hereby directed to do the following to implement the provisions of this Ordinance:

...

B. Promulgate rules that will allow bicycle traffic that originates...

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