Witcher v. Canon City
| Citation | 716 P.2d 445 |
| Decision Date | 17 March 1986 |
| Docket Number | Nos. 84SA111,84SA204,s. 84SA111 |
| Parties | John Stump WITCHER and Donald W. Tyner, Plaintiffs-Appellants, v. CANON CITY, a Municipal Corporation; George R. Turner, Mayor; and Councilmen Robert R. Jacobshagen, Donald T. Packard, James W. Baker, John A Rigirozzi, Frederick Roy Whitney, Lloyd O. Leslie, and Robert Bartlett, individually and in their capacities as members of the City Council for Canon City, Colorado; the Royal Gorge Company of Colorado, a Colorado Corporation, Defendants- Appellees. John Stump WITCHER, Plaintiff-Appellant, v. CANON CITY, a Home Rule Municipal Corporation of the State of Colorado; the Council of Canon City; George R. Turner, Mayor; and Councilmen Robert R. Jacobshagen, Donald T. Packard, Frederick Roy Whitney, Randel D. Lesher, Geoffery Ormandy, N. Lamar Todd, and Emily Tracy, in their capacities as members of the Council of Canon City, Colorado; and the Royal Gorge Company of Colorado, a Colorado Corporation, Defendants-Appellees. |
| Court | Supreme Court of Colorado |
American Civil Liberties Union Foundation of Colorado, Inc., Brian H. Cole, Denver, for plaintiffs-appellants.
Rothgerber, Appel, Powers & Johnson, James R. Everson, David H. Bate, Denver, for defendant-appellee Royal Gorge Co.
Breyfogle & Mandel, Roger M. Breyfogle, Richard G. Mandel, Canon City, for all other defendants-appellees.
This case is an appeal from the district court for Fremont County, challenging an amendment to the Royal Gorge Bridge and Park Lease entered into between Canon City (City) and the Royal Gorge Company of Colorado (Company). 1 The district court held, on summary judgment, that the amendment was not subject to referendum under either the Colorado Constitution or the City Charter of Canon City, and that the amendment was not unconstitutional under article XI, sections 1 and 2, of the Colorado Constitution. We affirm.
In 1906, certain lands surrounding and including the Royal Gorge Canyon were conveyed by the United States to the City to be used exclusively for park purposes. The major feature of the park is a canyon cut by the Arkansas River, which is known as the Royal Gorge. In 1929, the City leased a portion of the park to Lon Piper for twenty years, subject to an agreement by Piper to build a suspension bridge across the Royal Gorge (Original Lease). At the end of the term, the City could either buy the bridge from the lessee, or extend the lease for an additional twenty years, at the end of which time the City would own the Bridge without further payment. In 1947, the Company purchased the Original Lease from Piper. After an election in 1949 determined that Canon City residents did not wish to purchase the bridge, the Original Lease was extended for twenty years pursuant to its terms.
The lease under which the Company is presently operating the bridge and park was entered into in 1967, after a second election indicated that the electors did not want the City to operate the bridge directly. Between 1967 and 1981, six amendments to the lease were entered into between the City and the Company. 2 In 1981, the term of the lease was extended, by the Seventh Amendment, to October 31, 2001. None of these seven amendments were submitted to the voters for approval. When the City determined in early 1982 that extensive modernization of the bridge was necessary, and that proposed improvements would extend the life of the bridge for at least fifty years, the City entered into negotiations with the Company regarding the City's role in the cost of the modernization. These negotiations culminated in the Eighth Amendment to the lease in August 1983.
Since the contemplated modernization would extend the useful life of the bridge for at least thirty-one years beyond the expiration date of the Company's lease, the City Council decided to encourage the Company to undertake the long-term modernization by reducing the City's percentage of the tolls collected by the Company from 25% to 20% until 62% of the cost of reanchoring the Bridge or $1,015,412, whichever is less, has been retained by the Company. In addition, the City agreed that the Company will impose a new 2 1/2% fee on concessions and all other retail sales made at the park, 80% of which will be retained by the Company until the Company has recovered the sum of $567,412, which is 62% of the actual cost of the wind cable system installed in the modernization, with the balance of the new fee to be paid to the City.
Shortly after the Eighth Amendment was approved by the City Council, a number of Canon City residents who did not agree with the decision circulated a petition asking for referral of the issue to the qualified voters of the City. This referendum petition was submitted to the City Council, which determined that approval of the Eighth Amendment was an administrative, rather than legislative, action by the council, and therefore not subject to the referendum power. After the council denied the petition, several residents filed an action in the district court pursuant to C.R.C.P. 106(a)(2) challenging the decision of the City Council that the Eighth Amendment was not subject to the referendum power. They also sought a declaration, pursuant to C.R.C.P. 57, that the amendment violated article XI, sections 1 and 2, of the Colorado Constitution by creating a debt of the City or constituting a gift to the Company.
Subsequently, the Company filed a motion for summary judgment, supported by the affidavit of Walter J. Jenks, president of the Company. In addition to setting forth the history of the Company's relationship with the City, the affidavit stated that the bridge, improvements, and all other facilities at the park will revert to the City at the end of the lease term. It then briefly summarized each of the eight lease amendments, stated that the bridge improvements would leave the bridge "in better than new condition due to advanced technology and materials," and give the bridge, as modified, a useful life of at least 50 years. The balance of the affidavit set forth, in considerable detail, the costs involved in the modification program, the apportionment of those costs between the Company and the City under the Eighth Amendment, and the specific work performed in the modification program. Copies of the 1967 lease, all eight amendments, the Council resolutions adopting the lease and each amendment, and the construction contracts involved in the modification program were appended to the affidavit.
Plaintiffs did not controvert or make any objections to the matters set forth in the Jenks affidavit. After a hearing, the trial court granted the motion for summary judgment, finding that: (1) there were no genuine issues as to material facts; (2) while the Company had an obligation to maintain the Bridge under the 1967 lease, that obligation did not extend to the modernization program undertaken by the Company; (3) modernization will extend the useful life of the bridge to at least the year 2032, well beyond the facility's reversion to the City on the expiration of the lease in 2001; and (4) the City benefited from the Eighth Amendment to the extent that the improvements increased both the useful life of the bridge and the value of the structure.
Relying on City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977), the trial court determined that the action by the City Council was not legislative in nature and the referendum process does not "apply to administrative or executive matters addressed by a city council." As to the claim that the Eighth Amendment violated sections 1 and 2 of article XI of the Colorado Constitution, the court held that since the uncontroverted evidence established "that there is a life to these improvements that extends far beyond the term of the lease" there was no pledge by the City of its credit nor any donation or grant to any corporation. The trial court reserved the right to alter or amend its judgment, and gave plaintiffs ten days in which, if they were able, to file affidavits controverting Jenk's statement that the modifications will extend the life of the bridge. Plaintiffs failed to do so and, on March 13, 1984, the trial court denied the plaintiffs' motions for enlargement of time within which to file a motion for new trial or motion to alter or amend judgment.
Plaintiffs argue that both the City Council and the district court erred in concluding that the resolution adopting the Eighth Amendment was not subject to the referendum power. They first contend that the resolution was a legislative act, and therefore subject to referendum under article V, section 1, of the Colorado Constitution. They further assert that, even if the Eighth Amendment was in fact administrative, it remained subject to referendum pursuant to the referendum provisions of the Canon City charter. We deal with each of these contentions in turn.
Article V, section 1, of the Colorado Constitution provides, in pertinent part, that
[T]he people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly, and also reserve power at their own option to approve or reject at the polls any act, item, section or part of any act of the general assembly.
....
The initiative and referendum powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special and municipal legislation 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....
Colo. Const. art. V, sec. 1. As a reservation of power, the terms of this article are...
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