The city of Aspen is down to its last legal argument in the defense of a lawsuit seeking a public vote on a new government office building.
A motion for summary judgement filed on Friday argues that plaintiffs in the case fell too far short in their effort to collect enough signatures to put the matter before voters and that they do not have the right to a 10-day cure period in which they could amend their petition to get more signatures.
The city is seeking to have lawsuits brought by Marcia Goshorn and Steven Goldenberg of Aspen and Toni Kronberg of Snowmass Canyon thrown out, after a judge ruled in the plaintiffs’ favor earlier this year. The judge, John Neiley of the 9th Judicial District, ruled that the petitioners met a deadline to submit their signatures when the city first determined they had not. The judge also found that, contrary to city arguments, the plan to build a new $22 million office building between Rio Grande Place and Galena Plaza is subject to a citizen referendum.
That leaves Aspen municipal attorneys with one last line of defense against a public vote on the government-offices project that city officials have said they would be likely to lose. The city could also appeal Neiley’s rulings to the state court of appeals.
Goshorn and Goldenberg initiated the petition in May 2017, following Aspen City Council’s vote the previous month in favor of constructing a new 37,500-square-foot office building near the Pitkin County Library. City officials say they need the building to consolidate the offices for various departments that are spread around town, some in rented spaces, while improving workspace functionality for both staff and the public. A new council and community meeting room is part of the plan, as is a renovation of existing offices in city hall at 130 S. Galena St.
The city charter requires 640 valid signatures from registered Aspen voters — 10 percent of the electorate — to refer a council decision to the ballot. Goshorn and Goldenberg submitted 753 signatures. City Clerk Linda Manning determined that 396, or 52 percent, were valid on their face. While 146 signatures appeared to be from registered city voters, they were technically deficient because the signer failed to fill out the form correctly, leaving out information such as their address, city and county of residence, the date or their signature. Five submissions were deemed illegible.
That left 206 signatures submitted from people who were not city of Aspen-registered voters. Of those, 51 were from out of the area, with signers listing cities and counties of residence as far flung as Carbondale, Glenwood Springs and Colorado Springs, according to the 20-page motion for summary judgement, filed by City Attorney Jim True and assistant city attorney Andrea Bryan.
The city charter says that “an original petition certified insufficient for lack of the required number of valid signatures may be amended” if the the initiators file a notice to amend within two days of the city clerk’s official ruling on petition. They would then have 10 days from the determination to file the supplemental signatures, which the clerk would then have five days to validate.
Kronberg said on Monday that the city charter clearly gives her side the right to supplement the petition.
“What they have forgotten to do is look at their own charter,” she said.
The city attorney’s office argues that it’s not that simple and lays out the case in its motion that the right to supplement is only intended to apply when a petition falls short due to signatures that were thrown out because of technical deficiency. The city bases this claim on another part of the law governing referendum petitions, which the charter incorporates, that states explicitly that a petition must be signed by registered city voters.
In this case, if the 146 technically invalid signatures are added in, the petition is still 98 signatures short of the 640 threshold.
“Although … the charter provides petitioners with the ability to amend the petitions, such right only exists if the initial threshold of registered Aspen voter signatures is met,” the motion says.
It later continues, “[T]here is a distinct difference between submitting the required threshold of signatures of registered electors but failing on technical defects and failing to meet the threshold of registered voters entirely…. If plaintiffs had submitted at least 640 signatures of registered Aspen electors but some of those signatures were invalidated due to technical deficiencies such as failure to provide a proper address or printed signature, there is no question they would have had the right to amend the submission to validate those signatures.
“But they cannot skirt the city’s charter and state statute by using non-registered voter signatures as a ‘placeholder’ to, in essence, buy themselves 10 more days to get more signatures. To do so would not only contravene the law but ignore the interests of the voters who, through the charter, have required that an initiative must demonstrate a certain level of support before it may appear on the ballot.”
The city also argues in its motion that, even if the petitioners had a right to amend, that right lapsed when they did not file the amended signatures within 10 days of the clerk’s determination. The group did file its notice to amend, which its members believe preserves their right to get more signatures should the judge rule in their favor.
Kronberg said on Monday that the city knows her group can muster up enough additional valid signatures to meet the threshold if they are given more time. She also said the city knows it is likely to lose if the public gets a vote on the new office building; City Manager Steve Barwick last year, in arguing against general-obligation bonds to finance the project, told the council that most voters’ appetite for new government office buildings is right up there with “mandatory colonoscopies.”
Kronberg said the council should go back to the drawing board and move ahead with an alternate plan for new office space. She is a proponent of the city acquiring the former Aspen Daily News building, across the street from city hall at 517 E. Hopkins Ave., and redeveloping that lot to meet office needs. City officials had looked at that plan in the past but opted out because of the high land-acquisition costs. The building was purchased by a corporation controlled by developer Mark Hunt in 2014 for $10 million.
True said that if the city loses its argument over the right to amend the insufficient petition, the council is likely to consider multiple options, including putting its 2017 approval on the ballot or working on an alternate site for the offices.
Kronberg added that her attorney, Jordan Porter of Denver, is working on a response to the city’s motion. Porter did not return a call seeking comment.