Loading...
HomeMy Public PortalAboutTBP 2011-04-06 BOARD OF TRUSTEES REGULAR MEETING AGENDA WEDNESDAY,APRIL 6,2011 FRASER TOWN HALL Members of the Board may have dinner together @ 5:30 p.m. -Fraser Town Hall 1.Regular Meeting - 6:00Roll Call 2. Approval of Agenda 3.Executive Session: For the purpose of determining positions relative to matters that may be subject to negotiations, developing strategy for negotiations, and/or instructing negotiators, under C.R.S. Section 24-6-402(4)(e) regardinga proposed annexation agreement 4.Consent Agenda 7:00 a)Minutes –March 16, 2011 5.Open Forum a)Business not on the agenda 6.Updates 7.Public Hearing 8.Discussion and Possible Action Regarding a)Economic Development Events Event vendors Loyalty cardprogram Home rule b)Chamber Memorandum of Understanding 9.Action Items a)Resolution 2010-04-01 authorizing expenditures for Fraser River Bank Stabilization b)Resolution 2010-04-02 authorizing expenditures for street projects 10.Community Reports 11.Staff Reports 12.Other Business Upcoming Meetings: Wed.April 20, 2011Board of Trustees Wed.April 27,2011Planning Commission Posted March 31, 2011 Lu Berger Ô« Þ»®¹»®ô ̱©² Ý´»®µ Town Board Briefing February 16, 2011 Note that the regular meeting will begin at 6:00pm with an executive session. The session should conclude at 7:00pm. We will be continuing our ongoing conversation regarding economic development. General topics will include: Events. At our last Business forum, the business community agreed that the return on investment in events is not likely to have a significant positive impact on the viability of our business community. However, there is interest in pursuing events that will enhance our sense of community. I’d like to propose that the Town Board establish a small group of volunteers who would be willing to work toward finding ways to engage the community in such activities. Event Vendors. Picnic in the Park has been a very successful community event and we have previously discussed the possibility of having vendors at the event. We’d like to reopen that conversation concurrent with Planning Commission discussions regarding temporary vendors. We’d like a follow up conversation regarding the Loyalty Card Program. As you recall, the Town Board was interested in the program, but was hoping to hear from the business community at the Business Forum. The attendees were very encouraged by the proposed program. As discussed previously, Home Rule may provide some additional benefits that should be considered. Enclosed in the packet are background materials for your review/discussion. Other…? The Chamber of Commerce Memorandum of Understanding is on the agenda for further discussion; no changes have been made or suggested to date. Finally, we have prepared two resolutions that would authorize expenditures consistent with the 2011 Budget for Bank Stabilization work along the Fraser River and street projects (see enclosed brief). As always, feel free to contact me if you have any questions or need any additional information. Town of Fraser PO Box 370, Fraser, CO 80442 office 970-726-5491fax 970-726-5518 www.frasercolorado.com FRASER BOARD OF TRUSTEES MINUTES DATE: Wednesday,March 16, 2011 MEETING: Board of Trustees Regular Meeting PLACE: Fraser Town Hall Board Room PRESENT Board: Mayor Fran Cook; Mayor Pro-Tem Steve Sumrall; Trustees: Vesta Shapiro, Scotty Brent, and Eric Hoyhtya Staff: Town Manager Jeff Durbin;Utility Administrator Nancy Anderson;Public Works Director Allen Nordin; Town PlannerCatherine Trotter; Police Chief Glen Trainor;Plant Superintendent Joe Fuqua Others: See attached list Mayor Cook called the meeting to order at 7:00p.m. 1.Workshop: 2.Regular Meeting: Roll Call 3.Approval of Agenda: motion Trustee Hoyhtyamoved, and TrusteeBrentseconded the to approve the Motion carried: 5-0. Agenda. 4.Consent Agenda: a)Minutes –March 2, 2011 motion TrusteeHoyhtyamoved, and Trustee Shapiro seconded the to approve the Motion carried:5-0. consent agenda. 5.Open Forum: None 6.Updates: a)Police Department ChiefTrainorintroduced newestpolice officer KyleSandusky. Following an poignantpresentation, Chief Trainor presented Officer KenWright with the Medal of Distinguished Servicefor his role in anOctober 24, 2010 confrontation. Page 2of 3 b)Community Gardens Debbie Buhayer was present to review the community garden concept and the desire to start a community garden in Fraser. 7.Public Hearings: None 8.Discussion and Possible Action Regarding: a)Winter Park/Fraser Valley Chamber Memorandum of Understanding TM Durbin briefly reviewed the Memorandum of Understanding(MOU).Chamber Director Catherine Ross confirmed the MOUhas been presented to the Chamber Board. Mayor Cook requested the MOU be placed ontheir April 6 workshop or meeting.The next Fraser Business Forum is scheduled for March 22where input will be taken on what the Chamber can do for your business. Catherine Ross has been appointmentto the school adhoc committee representing the Chamber Board. b)Economic Development TM Durbin briefly discussed the information that was included in the Board’s packet. Following Board discussed, the Boardexpressed interest inFraserizingthe ideasduring their Board retreat. 9.Action Items: None 10.CommunityReports: None 11.Staff Reports: Town Clerk - None Finance Manager – Included in the Board packet. Town Planner – Included in the Board packet. Public Works Director – Included in the Board packet. Town Manager – TM Durbin highlighted the following:I-70 Corridor Final Impact Statement is available;April retreat dateswere discussed;Denver Water enhancement agreement will be sent to the Town’s water attorney; and the Planning Commission will start the land use discussions related to the Byers Peak Ranch annexation. Plant Superintendent – Included in the Board packet. Police Chief – Included in the Board packet. Page 3of 3 12.Other Business: motionMotion Trustee Hoyhtyamoved, and TrusteeShapiroseconded the to adjourn. carried: 5-0. Meeting adjourned at 8:42 p.m. Lu Berger, Town Clerk An Overview of Municipal Home Rule A handbook for municipal officials CML COLORADO MUNICIPAL LEAGUE August 2006 An Overy "sew of Municipal Home Rule A handbook for municipal officials CML COLORADO MUNICIPAL LEAGUE 2006 Colorado Municipal League 1144 Sherman St, Denver, CO 80203 Order Form An overview of municipal home rule One copy of this publication was sent to each CML member municipality to the manager or clerk. Additional copies may be purchased at the following rates: Price Quantity Total Member municipal officials $15 Associate members $15 Nonmembers $30 For a complete list of CML books, call 303 831 -6411 or visit the Web at www.cml.org under Publications Add tax* (Denver residents add 7.6% sales tax; all others in RTD, 4.1 all others in Colorado, 2.9 or tax exempt number: Add postage and handling (5% of subtotal) Total enclosed Send publication to: Name Title Organization e-mail Address City State Zip Return this form and your check to: CML, 1144 Sherman St., Denver, CO 80203 2 Municipal home rule Contents An overview of municipal home rule Preface 4 Municipal home rule defined 5 Origin and history 5 Home rule contrasted with state jurisdiction 8 Utilization of home rule 10 Politics of home rule versus state jurisdiction 10 Determining whether the time is right 12 Procedures for adopting home rule 13 Procedures to amend or repeal a charter 14 Drafting a charter 16 Home rule authority and flexibility compared to statutory municipalities 19 Advantages and disadvantages 19 Conclusion 19 End notes 21 Appendix A Arguments for and against 22 Appendix B Selected bibliography 24 Colorado Municipal League 3 Preface This publication provides an overview of municipal home rule in Colorado. It is not a substitute for legal advice, nor a replacement for the Colorado Municipal League's (CML's) more lengthy and detailed publication, Home Rule Handbook. It is up to each city and town to determine whether to operate as a home rule or statutory municipality. CML has a long, proud tradition of protecting the interests of home rule and statutory municipalities before the Colorado General Assembly and in the courts. Likewise, over many years CML has provided extensive informational assistance for municipal officials on both home rule and statutory forms of government. Following his retirement in 2005, Ken Bueche was asked to author this publication. Ken has had the unique experience of following municipal home rule professionally for more than 40 years, first as a graduate student, 1962 -1963; as a law student and law clerk for CML, 1963 -1966; in private practice serving as an assistant city attorney, 1966 -1968; and finally as CML general counsel and then executive director, 1968 -2005. We hope this publication will be valuable to municipal officials in home rule and statutory municipalities and to others interested in municipal governance. 611/1-j' Sam Mamet Executive Director Handbook compiled by former Executive Director Ken Bueche, Colorado Municipal League, 2006 All photos courtesy of the Colorado Tourism Office. 4 Municipal home rule Municipal home rule defined imply stated, municipal "home rule" is a form of government under the control of local citizens rather than state government. It is "self- government," meaning municipal rather than state control over the organization and operation of local government activities. Home rule does not relate to nor confer any enhanced authority relative to powers of the federal government. Home rule relates to state -local relations, not federal -local relations. Historically in Colorado and throughout the nation, municipalities and other local governments have been creatures of the state legislature, with the local governments dependent on state enabling legislation and subject to state control and interference. This legal doctrine, prevalent in the absence of home rule, is known as "Dillon's Rule," named for a 19th century Iowa Supreme Court justice and municipal law authority. In Colorado, municipal home rule derives its authority directly from the Colorado Constitution. It affords citizens of cities and towns that adopt a local charter freedom from the need for state enabling legislation and protection from state interference in "both local and municipal matters." Origin and history of home rule In 1875, Missouri became the first state to adopt home rule followed by California in 1879. Other states conferring home rule rights for cities during the remaining years of the 19th century included Minnesota and Washington. Numerous states, including Colorado, adopted municipal home rule during the two decades of the Progressive Era 1900 to about 1915 or 1920. The National Municipal League was probably the most prominent and influential national organization instrumental during the Progressive Era and thereafter in promoting home rule and other municipal reforms. The organization was founded in 1894 by local citizen reform groups and individuals interested in reforming municipal government. In 1899, the National Municipal League adopted a "Municipal Program," publishing it the following year. Later it was to be referred to as a "Model City Charter." Over the years it has published several revised editions, including the its Colorado Municipal League 5 current 8th edition published in 2003. (The league has changed its name to the National Civic League and relocated its offices from New York City to Denver. It is not to be confused with the National League of Cities, which is the national association of cities and towns.) Home rule has remained a foundation of the National Civic League's municipal reform agenda through the years, including its latest model state constitution and city charter. Municipal home rule in Colorado was clearly a product of the Progressive Era in that it was adopted by state voters in 1902 and clarified and expanded by voters in 1912. Historically, Colorado's adoption appears to have been prompted primarily by actions of state government affecting Denver and its citizens and a desire to form a consolidated city and county of Denver. Denver had been granted a charter in 1861 by the territorial legislature. Denver and those other cities that were still operating under territorial charters retained the right to continue to operate under their special charters rather than being governed by general municipal laws when the constitution was adopted and statehood granted in 1876. (Georgetown is the only municipality still operating under a territorial charter.) Following statehood, Denver's charter was amended or a new one enacted periodically by the General Assembly, and Denver eventually became the "political football" of the party in power. Classic examples of state interference were charter amendments enacted by the General Assembly in 1889 providing for a board of public works and in 1891 for a fire and police board, with members of both boards appointed by the governor. Thus, Denver's public improvements, public safety and related activities came under the control of state government! Armed conflict nearly broke out in 1894 when Gov. Davis H. Waite had a dispute with two of his appointees to Denver's Fire and Police Commission over their failure to follow his policies and their subsequent failure to accept his attempt to remove them from office. Armed forces for the state and city faced off before cooler heads prevailed and weapons were withdrawn! In addition to the desire for local control, civic leaders in Denver wanted to establish a consolidated city and county. Hence, interest in reform for Denver included both home rule and a consolidated city and county. 6 Municipal home rule Relief came in 1901 when Denver Sen. John A. Rush, with the support of Gov. James Orman, passed legislation to refer to statewide voters Article XX of the Constitution forming Denver as a consolidated home rule city and county and also conferring on the citizens of first- and second -class cities the right to adopt local charters and become home rule municipalities. The amendment was approved by a vote of 59,750 to 25,7671 While the right of citizens in cities of the first and second class to adopt home rule was provided, the history is unclear to what extent these cities sought that right and to what extent voters in 1902 were influenced by the extension of home rule prerogatives statewide. A Colorado Municipalities article published in 1925 identified the following charters as having been adopted between the 1902 and the 1912 constitutional amendments: Denver, 1904; Colorado Springs, 1909; Grand Junction, 1909; Pueblo, 1911; Durango, 1912; and Delta, 1912. Subsequent to passage of the amendment in 1902, a great deal of legal and political controversy and turmoil occurred, apparently primarily involving Denver. This caused supporters of home rule to initiate in 1912 a clarifying and strengthening amendment. The 1912 measure rewrote Section 6 of Article XX to specifically enumerate various municipal home rule powers and included a powerful "catch -all" paragraph: It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right. Colorado Municipal League 7 The 1912 measure also changed the reference that entitled home rule status to cities of the first and second class to any city or town "having a population of two thousand inhabitants." In addition, the measure "ratified, affirmed and validated" the charters and related elections of Denver, Pueblo, Colorado Springs and Grand Junction and of any other unnamed city that had adopted a home rule charter (Delta and Durango). The 1912 initiative passed by a vote of 49,596 to 44,778. Similar to the situation with the 1902 election, it is unclear to what extent the interests of the five out -state cities that had adopted home rule charters before the 1912 vote, and of other cities, played in the 1912 election. However, the fact that citizens in five cities had chosen home rule before the 1912 statewide election demonstrates substantial statewide awareness or interest in home rule by the time of the 1912 election. Another important home rule amendment was approved by voters in 1970 as part of a local government reform measure referred by the General Assembly in 1969. The home rule portion of the measure was included with the support of CML. It added a new Section 9 of Article XX to extend the right to adopt home rule to the citizens of each municipality, regardless of population or when incorporated, and authorized the General Assembly to enact statutory procedures to facilitate the adoption, amendment and repeal of home rule charters. (The referred measure also authorized the General Assembly to enact a more limited "structural" form of home rule for counties, but only a few counties have taken advantage of this form of home rule.) The 1970 amendment has enabled many towns under 2,000 population to become home rule and led to the CML- drafted Municipal Home Rule Act of 1971 which has served since 1971, with few amendments, as the procedure utilized in the adoption and amendment of charters.? Municipal home rule jurisdiction contrasted with state jurisdiction An overview of municipal home rule would be incomplete without a description of what matters fall within the jurisdiction of home rule municipalities and what matters remain within the jurisdiction of state government. (Readers 8 Municipal home rule should consult with their own attorney on specific legal questions and on recent legal developments.) Colorado's version of municipal home rule is believed to be one of the strongest among the states having home rule because the grant is broad, derived directly from the constitution rather than statute, and can be narrowed only by decisions of the courts, which for the most part have recognized a relatively broad grant of home rule authority. The Colorado Supreme Court has not developed a particular test to resolve every case, but has made "determinations on an ad hoc basis, taking into consideration the facts of each case." Legal principles have been set forth in the 1990 Supreme Court case, Denver v. State. Under the Colorado Constitution, power is allocated between home rule municipalities and the state in the following three relevant categories: (1) areas of local and municipal concern areas in which the interest of the home rule municipality predominates and the local enactment supersedes any conflicting state statute; (2) areas of statewide concern areas in which a home rule municipality is without power to act unless authorized by the constitution or by state statute; and (3) areas of mixed state and local concern areas in which both the state and the home rule municipality may legislate, but in which the state interest predominates so that a state enactment overrides any conflicting municipal enactment. While the Supreme Court has found the terms "local," "state," and "mixed" useful to resolve potential conflicts between state and local governments, these terms are not "mutually exclusive or factually perfect descriptions of the relevant interests of the state and local governments." In its Denver v. State opinion and subsequent decisions, the Court has identified four considerations in determining whether a matter is of statewide, local or mixed concern: (1) whether there is a need for statewide uniformity of regulation; (2) whether the municipal regulation has an extraterritorial Colorado Municipal League 9 impact; (3) whether the subject matter is one traditionally governed by state or local government; and (4) whether the Colorado Constitution specifically commits the particular matter to state or local regulation. The Court has at times weighed other factors in its consideration of whether a subject matter is of local, state or mixed state and local concern, including (1) the need for cooperation between the state and local governments in order to effectuate the local government scheme, and (2) any legislative declaration as to whether a matter is of statewide concern. Fortunately, the fact that the General Assembly has declared something "a matter of statewide concern" does not necessarily make it so otherwise the General Assembly could destroy home rule. Utilization of home rule by cities and towns According to a 1925 article in Colorado Municipalities magazine, the following cities were the first to take advantage of home rule and adopt home rule charters: Denver, 1904; Colorado Springs, 1909; Grand Junction, 1909; Pueblo, 1911; Durango, 1912; Delta, 1912; Fort Collins, 1913; Montrose, 1914; Boulder, 1917; and Monte Vista, 1922. Canon City (1945) is the only other city, based on unofficial CML records, to have adopted home rule before 1950. Since 1950, unofficial CML records show growing utilization, with many (usually from 10 to 20 additional municipalities) adopting home rule each decade. Based on 2000 census figures, every municipality over 10,000 population, except Centennial which recently incorporated, is home rule. Many smaller municipalities are also home rule. At press time, 92 of Colorado's 271 cities and towns are home rule. While the clear majority mainly towns remain statutory municipalities, these 92 home rule municipalities comprise more than 90 percent of the total municipal population of Colorado. Politics of home rule versus state jurisdiction Considerable tension has existed and will continue to exist between local and state control. Municipal home rule has not eliminated that tension. However, home rule has established a political atmosphere and legal ground rules that have: 10 Municipal home rule Enabled home rule municipalities to utilize diverse powers, organizations and procedures without the need for state enabling legislation; Protected home rule municipalities from state interference in matters local and municipal in nature; and Helped establish and preserve an atmosphere of state respect for local control for other local governments, resulting in fairly broad statutory authority for non -home rule local governments and often a disinclination on the part of state officials to micromanage local governments; yet Maintained for state government the flexibility and prerogative to manage and control matters that are of state or mixed state and local concern without home rule being an obstacle. Preserving home rule authority has, nevertheless, required constant vigilance by CML, municipalities and other home rule supporters since state officials, private entities and individuals have often challenged home rule authority in the General Assembly and before the courts. A major threat in recent years has been the attempt of some legislators to pass legislation pre empting home rule authority, arguing that a subject matter is of state or mixed state -local authority. Some recent subject areas include tax policy, regulation of weapons, employee residency requirements, breed specific animal controls and planning and zoning regulations. Although members of the General Assembly are often on record as supporting local control, many have been inclined to vote against local control when partisan politics, member ideology or special- interest pressures take priority. The first line of defense for municipalities and other supporters of home rule has been to defeat the legislation or delete the pre emption language where it affected important local interests. This has often been effective. Where legislation pre empting home rule authority has been enacted, the second line of defense has been the courts. Affected home rule municipalities often have challenged such legislation in the courts and asserted home rule prerogatives in other litigation involving private parties. CML has often filed amicus briefs in support of the home rule position. Only by continuing to assert home rule prerogatives before the Colorado Municipal League 11 General Assembly and the courts on important local control matters can the prerogatives of home rule be protected! Nevertheless, there are times when state jurisdiction is in the public interest or insistence on local control may be untimely or unwise. In addition, there are other situations where it may be wise for home rule municipalities to take voluntary action collectively rather than relying on home rule protection. For example, CML has coordinated voluntary actions among home rule municipalities on tax administration and simplification, rather than simply relying on home rule prerogatives. Municipal officials need to exercise good judgment and restraint in some circumstances, choosing not always to play the home rule "card." Considerations in determining whether the time is right to adopt home rule The timing for proposing home rule in individual communities may or may not be "right." Municipalities have tended to favor home rule status as they became larger and more active and the need for more authority and flexibility was perceived. Motivations for home rule have often been general or philosophical in nature; at other times supporters have been motivated by municipal reform desires or by special prerogatives available only to home rule entities, such as the right to collect and control municipal sales and use taxes locally. The time for home rule may not be right if the municipality is getting along fine with existing powers and structure, is stable in population, has a small population or is undergoing political turmoil. In recent years, at least, home rule adoption generally has appeared to be more successful when: The municipal government was operating without a great deal of actual or perceived controversy, since voters seem 12 Municipal home rule less likely to grant different or unknown powers where other local controversy exists. (In contrast, there is evidence, at least in early years of home rule, for home rule being adopted to overcome apparent abuses of officials in power or to make major changes in the structure of city government); Considerable ground work has taken place before scheduling an election in order to educate and obtain the support of business, civic and other opinion leaders; and The charter commission acts with consensus and avoids including highly controversial provisions in the proposed charter. Other considerations may influence the precise timing to initiate home rule. For example, should the initial election on proceeding to draft a charter and the subsequent election to approve the charter be scheduled at a special election, at the regular municipal election, or at the biennial November state election? Considerations may include voter turnout, possible confusion and controversy if other issues are on the ballot, and time requirements set forth in the Municipal Home Rule Act of 1971 and other relevant election statutes. Procedures for adopting home rule Procedures for adopting, amending and repealing home rule charters are set forth in the Municipal Home Rule Act of 1971. While this statute should be reviewed for details, the general process for adopting home rule is summarized below. Home rule can be initiated either by: Submission of a petition, signed by at least 5 percent of the registered electors of the municipality, to the governing body thereof; or Adoption of an ordinance by the governing body. The governing body must within 30 days after initiation of the proceedings call an election for: Forming a charter commission; and Electing charter commission members. Charter commission candidates qualify for the ballot by timely submission of a nomination petition signed by at least 25 registered electors and a statement by a candidate of Colorado Municipal League 13 consent to serve if so elected. In municipalities having a population of less than 2,000, the charter commission is composed of nine members. For other municipalities, the commission is composed of nine members unless the initiating ordinance or petition establishes a higher odd number not exceeding 21 members. If a majority of the registered electors voting thereon vote to form a charter commission, the charter commission members who are elected proceed to draft a charter. The charter commission has 120 days from the date of its election to draft a charter and submit it to the governing body which, in turn, must schedule a timely election on the charter. If a majority of registered electors voting thereon approve the proposed charter, home rule is achieved and the charter becomes effective at such time as specified in the charter. If the proposed charter is rejected, the charter commission shall proceed to prepare a revised proposed charter that must be submitted to the governing body to schedule another election. If the revised charter is approved by the voters, home rule is achieved. If not, the charter commission is dissolved and the municipality continues to function as a statutory municipality. Where the second proposed charter is rejected, home rule proceedings cannot be initiated again for at least 12 months. In practice, rejection of a proposed charter and revised proposed charter normally chills efforts to initiate home rule for a longer time period. Some municipalities have experienced multiple proceedings over a span of years before achieving home rule. Special procedures in the statute allow a municipality to adopt home rule at the time the municipality incorporates. This enables a community to have more flexibility and local control at the time of incorporating but may add complexity to the task of incorporating. Mountain Village and Watkins adopted home rule at the time of incorporating. Lone Tree's efforts to do the same failed, but the municipality adopted home rule a few years later. Procedures to amend or repeal a charter Charter amendments can be initiated by: Timely submission to the clerk a petition containing the proposed amendment signed by at least 5 percent of the registered electors if for a regular election and 10 percent for a special election; or 14 Municipal home rule An ordinance adopted by the governing body. Proceedings to repeal a home rule charter or to form a new charter commission are similar to those for charter amendments but require: A petition signed by at least 15 percent of the registered electors of the municipality; or An ordinance adopted by a two thirds vote of the governing body. Proceedings to form a new charter commission for purposes of drafting a new or amended charter have been rare in recent years. There are no known attempts to repeal home rule charters. In practice, most charter amendments proposed in recent years have been placed on the ballot by ordinance of the governing body. These proposals normally originate through staff or governing body suggestions. Many times these proposals are "housekeeping" measures that are relatively non controversial; at other times they may be more substantive or controversial. Occasionally an individual or group will initiate a charter amendment using the petition route. These proposals are usually directed to a specific issue or issues and more frequently tend to be controversial. Sometimes governing bodies appoint charter review committees to develop recommended changes. This approach may tend to "de- politicize" governing body or "city hall" involvement. It also may save the time of the governing body. This approach retains for the governing body flexibility to refer to voters all, some or none of the committee's recommendations. Governing bodies usually prefer this approach to forming a new charter commission. At least one city (Arvada) has a charter requirement that the city council appoint a charter review committee every 10 years to review the charter and make recommendations to the council for changes. Like the initial adoption of a home rule charter, any proposed amendment, formation of a charter commission, or repeal of home rule requires approval of local voters. Consequently, home rule is the ultimate in democratic local self government! Colorado Municipal League 15 Drafting a charter Charter commission members are for a community what the drafters of the U.S. Constitution were for the nation! Participating in the drafting of a home rule charter is one of the most significant and long lasting contributions a citizen can make to his or her community. While drafting a charter or revised charter is accomplished in a relatively short time period, the product a charter is typically long lasting. Serving on a charter commission is a tremendous opportunity to be statesmen and women creative, visionary, effective, responsive and responsible in addressing the long -range interests and needs of the municipality and its residents. The charter commission has only 120 days to draft a charter, hold at least one public hearing, and submit the final charter to the governing body. Time, therefore, is of the essence. Its task is normally made easier by hiring one or more consultants or by utilizing municipal staff. The commission will normally either utilize the city attorney or another attorney experienced in municipal law to draft the charter or help with its drafting. The charter commission also may use or consult with one or more other municipal staff, such as the municipal manager, clerk or finance director. Often one or more members or former members of the governing body run for and are elected to the charter commission, adding municipal experience to the commission. The charter commission is entitled to have reasonable expenses of the commission paid out of the general funds of the municipality. The task of drafting the charter is normally simplified and expedited by using one or more existing charters of Colorado municipalities as a template, so rarely does the commission or its staff start from scratch. On many topics, the charter commission and staff may rely on a single or a few existing charters. On other topics, the commission and staff may review multiple charters for ideas or create provisions unique to its charter. Many Colorado charters can be accessed at municipal Web sites. Links to these Web sites are available at CML's Web site, www.cml.org. In addition, CML periodically publishes a Matrix of Colorado Home Rule Charters that reports how home rule municipalities treat various subjects. It is probably best to use one or more Colorado charters as a template or guide to conform with Colorado laws and 16 Municipal home rule practices. However, the commission may find it valuable to review the current version of the Model City Charter published periodically by the National Civic League, a nonprofit entity headquartered in Denver. The current edition is the eighth, published in 2003. NCL has a long, distinguished history as a citizen oriented organization promoting sound local government practices. The Model City Charter and its accompanying comments provide excellent background on structure and other governance issues.l In recent decades many charter commissions have retained in the charter the basic organizational structure that the municipality was using as a statutory municipality rather than proposing a new structure. (In contrast, some of the earliest charters revised the basic structure of the city.) Recent experience may be attributed to satisfaction with the current structure, a lack of consensus on a new structure, or a desire to avoid controversy in a charter that requires voter approval. Following are some points for charter commission members to consider as they prepare the charter: Approach your task strategically and carefully since your charter, if approved, is unlikely to be amended often and will likely be the fundamental document for the community for many years. Since charters are not frequently or easily amended, and litigation is costly, be careful that the charter does and says what you intend. Balance the need for a charter that can meet the test of time and allows the elected officials and staff sufficient flexibility with the need for important safeguards to protect the public against possible abuse by those in power. Colorado Municipal League 17 Include basic structure (such as the allocation of powers among mayor, council and staff), but avoid too much detail, (such as designation and organization of municipal committees and departments that may need to change.) Avoid unnecessary details and wording. Too much detail can destroy the flexibility that home rule otherwise provides, make the charter outdated as conditions and needs change, or impair understanding and usefulness by citizens and officials. Realize that the Municipal Home Rule Act of 1971 allows the charter commission to submit alternative charter provisions, such as form of government. (While perhaps useful in special circumstances, this approach is not often used and may risk confusing voters and making charter approval more controversial.) Be wary of borrowing language from old charters since the law or practices may have changed. Make sure that any borrowed provisions do and say what you intend. Keep your deliberations open and invite input from members of the public before decisions are finalized. An open process can facilitate drafting a good charter and enhance chances for approval by citizens. Consider using other parties or experts in addition to your attorney or consultant to review technical provisions, such as municipal finance provisions. Avoid special interest and other "agendas" that should not be included in the charter. Remember that the charter doesn't have to cover everything. Ordinarily what is not covered can be addressed by the governing body by ordinance from time to time as conditions change and needs arise. The charter is primarily an instrument of limitations rather than a detailed grant of powers, so avoid unnecessary details and subjects. Constructive debate can be helpful, but work as a team. An excellent source of information for charter commission members is Guide for Charter Commissions, fifth edition, published in 1991 by the National Civic League. 18 Municipal home rule Examples of home rule authority and flexibility compared to statutory municipalities There are many examples of additional authority and flexibility afforded to home rule municipalities. These examples fall into the categories of organization and structure, elections, procedures, finances and miscellaneous. A lengthy list of examples was prepared several years ago by CML staff and is printed as Appendix J to CML's Home Rule Handbook. While these may not in all cases be current or indisputable, they provide a great deal of insight into the authority and flexibility of home rule when contrasted with that of statutory municipalities. Advantages and disadvantages of home rule Briefly stated, primary advantages of home rule include greater local control and greater flexibility. These advantages reduce the need for state enabling legislation, provide protection against interference from the state, and enable the citizens of the home rule municipality to choose organization and structure, powers, functions, procedures and limitations different from those set forth in state laws for statutory municipalities. Primary disadvantages include the possibility of a bad charter or charter provisions that defeat the advantages of home rule or make operating worse than under state laws; and the effort and expense needed to adopt, amend and operate under a charter, particularly for some smaller municipalities. Included as Appendix A is a more extensive list of arguments for and against home rule that were published as an appendix to CML's Home Rule Handbook. Conclusion Municipal home rule in Colorado has truly stood the test of time. From its modest birth over a century ago it has grown to be utilized at press time by 92 cities and towns serving more than 90 percent of the municipal population of Colorado. Colorado voters statewide have consistently supported municipal home rule by authorizing it in 1902, clarifying and expanding it in 1912, and extending its availability in 1970 to municipalities of all sizes. Municipal home rule has immeasurably strengthened local control enjoyed by citizens and facilitated flexibility and diversity among communities in addressing their needs and desires. Colorado Municipal League 19 Home rule will not produce local control under all circumstance and will continue to be attacked at times before the General Assembly and in the courts. Indeed, there have been a few troubling actions recently in which the General Assembly has enacted legislation pre empting "traditional" home rule authority and the courts have upheld the legislation, ruling the subject matter to be of statewide or mixed state and local concern.What falls within municipal or state jurisdiction unfortunately is often in doubt and will probably always remain in some degree of flux. In addition, constitutional amendments affecting home rule, such as TABOR and term limits, have been and probably will continue to be a significant factor. The continued viability of home rule will depend, as in the past, on the vigilance, assertiveness and loyalty of municipal officials and others who value local control. The lengthy history of constitutional home rule also has benefited statutory municipalities and other local governments by paving the way for new grants of authority based on home rule experience and by reinforcing a Colorado ethic favoring local control rather than state interference and micromanagement. In the final analysis, the effectiveness of municipal government, whether statutory or home rule, will depend on the quality, dedication and integrity of those public officials and employees in office and on the expectations and participation of local citizens. 20 Municipal home rule End notes: 1 John A. Rush, The City- County Consolidated, 141 -150 published by the author, Los Angeles (1941). 2 The early history of municipal reform and home rule efforts and developments of the National Municipal League have been published in the following publications: Frank Mann Stewart, A Half Century of Municipal Reform: The History of the National Municipal League, University of California Press, Berkeley and Los Angeles (1950); Alfred Willoughby, "The Involved Citizen: A Short History of the National Municipal League," National Civic Review (December 1969); Proceedings of the Milwaukee Conference for Good City Government and Sixth Annual Meeting of the National Municipal League, National Municipal League, Philadelphia (1900). 3 The primary sources of the Colorado experience discussed above include Rush; Marjorie Hornbein, "Denver's Struggle for Home Rule," The Denver Magazine (fall 1971); Jerome C. Smiley, History of Denver, The Times -Sun Publishing Company, Denver (1901); Clyde Lyndon King, The History of the Government of Denver with Special Reference to its Relations with Public Service Corporations, The Fisher Book Company, Denver (1911). The text of the 1902 home rule amendment was printed in Colorado Session Laws of 1901, 97 -106. 4 Don C. Sowers, "How to Secure a Home Rule Charter in Colorado," Colorado Municipalities (October 1925) at 10. 5 King. 6 The text of the 1912 amendment was published in the Colorado Session Laws of 1913, 669 -671. 7 The text of the 1970 amendment was published in the Colorado Session Laws of 1969, 1247 -1251. The Municipal Home Rule Act of 1971 is Colorado Revised Statutes 31 -2 -201 et seq. 8 Denver v. State, 788 P.2d 764 (Colo. 1990). 9 Sowers, 9 -10. 10 Colorado Revised Statutes 31 -2 -201 et seq. 11 The National Civic League can be reached at 1445 Market Street, Suite 300, Denver, 80202 -1717, phone 303 571 -4343, Web site www. ncl. org. Colorado Municipal League 21 Appendix A Summary of General Arguments For and Against Home Rule General arguments for Article XX of the Colorado Constitution grants both general and specific powers to home rule municipalities, providing them greater flexibility when seeking solutions to local problems. These powers allow home rule municipalities to shape such solutions to fit local needs, without involving the state legislature or being subjected to undesirable limitations imposed statewide. Home rule allows municipalities to respond more quickly to changed circumstances or emergency situations by allowing legislative solutions at the local level through ordinances or charter amendments, rather than waiting for action by the state legislature. Home rule municipalities are not required to follow state statutes in matters of local and municipal concern and therefore enjoy freedom from state interference regarding local and municipal matters. The express and implied enabling authority granted to municipalities in state statutes is sometimes ambiguous; home rule allows the municipality to act with greater assurance that its actions are properly authorized, especially if the charter reserves to the municipality authority to legislate on any and all matters of local concern. By empowering local citizens more directly, home rule enhances citizen control, interest, involvement, and pride in their municipal government. Home rule is the embodiment of the principle that the best government is the one that is the closest to the people. General arguments against If a restrictive charter is adopted, the potential flexibility offered by home rule may be lost. Once adopted, the charter may serve as a vehicle for dissatisfied citizens to further limit the authority of the municipality in general and elected officials in particular 22 Municipal home rule through the adoption of binding charter amendments, i.e., amendments that cannot be changed or repealed by the governing body without a subsequent vote of the people. The lack of definite limits on home rule powers may constitute a disadvantage to a municipality by creating legal uncertainty when the municipality legislates in a relatively new area; the ultimate determination of whether a matter is truly of "local concern" requires an ad hoc determination in court. The process of adopting a home rule charter involves some costs to the municipality attorney's or other consultant's fees, expenses incurred from publication requirements, election costs, etc., can be a burden on the municipality. The prospect of an existing municipality adopting a home rule charter requires some change from the status quo along with the need to debate potentially volatile issues related to the structure and powers of the municipality and, therefore, may be perceived as creating unnecessary risks in a community that is satisfied operating under existing statutes. Unless restricted by the charter, a home rule municipality has the potential to exercise more governmental powers than are available to statutory municipalities, which some local citizens may see as a disadvantage. (Source: Appendix I of the Colorado Municipal League's Home Rule Handbook) Colorado Municipal League 23 Appendix B Selected Bibliography Contemporary sources 1. Guide for Charter Commissions 5th Edition, National Civic League, Denver (1991). 2. Home Rule Handbook, Colorado Municipal League, Denver (1999). 3. Matrix of Colorado Home Rule Charters, Colorado Municipal League, Denver (1998). 4. Model City Charter 8th Edition, National Civic League, Denver (2003). Historic and other sources 1. Clyde Lyndon King, The History of the Government of Denver with Special Reference to its Relations with Public Service Corporations, The Fisher Book Company, Denver (1911). 2. Dale A. Osterle and Richard B. Collins, The Colorado State Constitution A Reference Guide, Greenwood Press, Westport, Connecticut (2002). 3. Don C. Sowers, "How to Secure a Home Rule Charter in Colorado," Colorado Municipalities (October 1925). 4. Eric Heil, "Home Rule Advantage," Colorado Municipalities (February 2002). 5. Ernest S. Griffith, A History of American City Government: The Progressive Years and Their Aftermath 1900 -1920, Praeger Publishers, New York and Washington (1974). 6. Frank Mann Stewart, A Half Century of Municipal Reform: The History of the National Municipal League, University of California Press, Berkeley and Los Angeles (1950). 7. Hugh R. Catherwood, "Upholding Colorado's Tradition of Local Home Rule," Colorado Municipalities (March 1993). 8. Jerome C. Smiley, History of Denver, The Times -Sun Publishing Company, Denver (1901). 9. John A. Rush, The City- County Consolidated, published by the author, Los Angeles (1941). 10. Kenneth G. Bueche, "Municipal Home Rule History and Perspective," Colorado Municipalities (August 2006) 11. Marjorie Hornbein, "Denver's Struggle for Home Rule," The Denver Magazine (fall 1971) 24 Municipal home rule COLORADO MUNICIPAL LEAGUE Table of Contents FOREWORD iii ORDER FORM Vii CHAPTER I: GENERAL BACKGROUND INTRODUCTION 1 WHAT IS MUNICIPAL HOME RULE? 1 HOME RULE POWERS 2 MATTERS OF 'LOCAL AND MUNICIPAL,' `STATEWIDE' AND 'MIXED CONCERN' 3 HOW TO DETERMINE WHETHER A MATTER IS OF LOCAL, STATEWIDE, OR MIXED CONCERN 4 LOCAL REGULATION IN AREAS OF STATEWIDE OR MIXED CONCERN 5 ADVANTAGES AND DISADVANTAGES OF HOME RULE 5 TABLE 1: AREAS OF CONCERN DETERMINED BY COURTS 11 CHAPTER II: FOUR AREAS OF LOCAL CONCERN: EMPLOYMENT, TAXATION, LAND USE, AND EMINENT DOMAIN INTRODUCTION 15 EMPLOYMENT 15 TAXATION 16 LAND USE 18 EMINENT DOMAIN 20 CHAPTER III: MUNICIPAL HOME RULE ACT OF 1971 INTRODUCTION 25 GENERAL PROVISIONS 26 PROCEDURES FOR ADOPTING A HOME RULE CHARTER 28 PROCEDURES FOR AMENDING A HOME RULE CHARTER 30 PROCEDURES FOR REPEALING A HOME RULE CHARTER 21 PROCEDURES FOR HOME RULE MUNICIPALITIES TO ADOPT A NEW CHARTER 32 ADDITIONAL PETITION REQUIREMENTS 33 BALLOT REQUIREMENTS 35 UNLAWFUL ACTS CONCERNING PETITIONS 35 PROCEDURES FOR ADOPTING A CHARTER UPON INCORPORATION 36 iv Colorado Municipal League CHAPTER IV: PREPARING THE CHARTER INTRODUCTION 39 PRE COMMISSION PREPARATION 39 CHARTER COMMISSION ORGANIZATION 40 SPECIAL CONSULTANTS 42 DRAFTING THE CHARTER 42 CONTENTS OF THE CHARTER 43 CHAPTER V: PUBLICIZING HOME RULE INTRODUCTION 51 GENERAL SUGGESTIONS 51 SUGGESTIONS FOR THE CHARTER COMMISSION 52 APPENDICES APPENDIX A: ARTICLE XX OF THE COLORADO CONSTITUTION 53 APPENDIX B: CHRONOLOGY OF AMENDMENTS TO ARTICLE XX OF THE COLORADO CONSTITUTION 63 APPENDIX C: MUNICIPAL HOME RULE STATUTE 67 APPENDIX D: HOME RULE MUNICIPALITIES IN COLORADO 77 APPENDIX E: TIME SCHEDULES 81 APPENDIX F: SAMPLE ORDINANCE INITIATING THE ADOPTION OF A HOME RULE CHARTER 85 APPENDIX G: SAMPLE PETITION INITIATING THE ADOPTING OF A HOME RULE CHARTER 87 APPENDIX H: SAMPLE ORGANIZATIONAL AND PROCEDURAL RULES FOR THE CHARTER COMMISSION 89 APPENDIX!: SUMMARY OF GENERAL ARGUMENTS FOR AND AGAINST HOME RULE 93 APPENDIX J: EXAMPLES OF ADDITIONAL AUTHORITY AND FLEXIBILITY AFFORDED TO HOME RULE MUNICIPALITIES 95 APPENDIX K: HOME RULE BROCHURE SAMPLE FROM CITY OF LOVELAND 99 Home Rule Handbook v Order Form Home Rule Handbook Home Rule Handbook has been sent free of charge to member municipal managers (or clerks in municipalities that have no manager) in home rule municipalities, and to associate members. Extra copies of this publication may be purchased at the following rates: Price Quantity Total For member municipal officials $25.00 For member municipalities ordering five or more books at one time $12.00 For associate members $25.00 For nonmembers $50.00 For Colorado state government offices $20.00 Add tax* (Denver residents add 7.3% sales tax; all others in RTD, 3.8 all others in Colorado, 3.0 or tax exempt number: Add postage and handling (10% of subtotal; $5 maximum. No postage and handling for prepaid orders) Return this form and your check to: Home Rule Handbook Colorado Municipal League 1144 Sherman Street Denver, CO 80203 -2207 Subtotal Total enclosed Send publication to: Name Title Organization Address City State ZIP Phone COLORADO. MUNICIPAL'! LEAGUE vii Chapter I General Background INTRODUCTION Historically, municipalities throughout the nation have been viewed as "creatures of the state," dependent upon the state for their creation and for their continued existence: the so- called "Dilion's Rule." As a result of this viewpoint, municipalities were often allowed to ex- ercise only those powers expressly granted to them by the state, those necessarily implied from or incidental to their expressed powers, and those essential to the purposes of the municipali- ty.' Accordingly, state legislatures decided when and how municipal governments should be organized, what powers they could or must exercise, and the procedures to be followed in the exercise of those powers. This viewpoint, when combined with the rapid urbanization of the nation in the late 1800s, created hardships for some of the nation's municipalities. Problems arose which often could not be solved under existing state statutes. Where this was the case, the municipality was forced either to ignore the problem or to wait until the state adopted legislation empowering the municipality to act. In addition, some municipalities found that state legislatures took too great an interest in municipalities' local, internal affairs. Dissatisfaction with municipal depen- dence on state legislatures and with undue legislative interference in municipal affairs led ulti- mately to the adoption, by the citizens of some states, of the concept of home rule. Because the nature and scope of home rule differs from state to state, and between coun- ties and municipalities, the material in this Handbook pertains only to home rule as it exists for municipalities in Colorado. In Colorado, municipalities have constitutional functional home rule powers reserved by the people in Article XX of the Colorado Constitution. Article XX reserves for citizens of home rule municipalities "the full right of self government in local and municipal matters." Colorado counties, on the other hand, have constitutional structural home rule pursuant to Article XIV Section 16 of the Colorado Constitution. WHAT IS MUNICIPAL HOME RULE? In general, municipal home rule is based upon the theory that the citizens of a municipality should have the right to decide how their local government is to be organized and how their local problems should be solved. The right of home rule is usually granted to municipalities by one of two methods: "consti- tutional" home rule, by which the right is granted directly to municipalities by the citizens in the state constitution; and "legislative" home rule, by which the right is granted to municipali- Home Rule Handbook ties by the legislature in the statutes. These two methods differ in that constitutional grants of home rule are less subject to change since state constitutions are more difficult to amend than are state statutes. There are two types of home rule: structural and functional. "Structural" home rule means that the citizens have the right to decide the form, or administrative structure, of their govern- ment. "Functional" home rule means that the citizens have the right to decide not only the form or structure of their government but also, within limits, what powers and functions the municipality shall exercise and how they shall be exercised. In Colorado, the original adoption of home rule seems to have resulted primarily from a dissatisfaction with legislative interference in the affairs of Denver. In 1861, Colorado became a territory, and the city of Denver was incorporated under a special charter. During much of the next 40 years, Denver appeared to some to be the "football of the political party in power at the state capitol." Its charter was continually being revised by the legislature. Independent boards were created by the legislature to govern various areas of Denver's services. The gover- nor— rather than officials or citizens of the city— appointed members of those boards. Popular dissatisfaction surrounding the legislative treatment of Denver developed, in 1901, into the "home rule" movement. This movement culminated in 1902 when Colorado citizens overwhelmingly approved Article XX as an amendment to the Colorado Constitution. Article XX consolidated the city and the county of Denver into one entity, granted the new entity the right to adopt a home rule charter, and provided in Section 6 for the adoption of home rule charters by certain other Colorado cities. In the decade following 1902, however, the Colorado courts took a sometimes restrictive view of the home rule powers granted in Article XX. Partly as a result of this judicial attitude, Section 6 of Article XX was substantially amended in 1912 to provide a broader and more clear statement of home rule powers and to extend the right of home rule to any Colorado city or town having a population in excess of 2,000. In 1970, as part of an overall effort to modernize local government in Colorado, Article XX was again amended by the addition of a new Section 9. In general, Section 9 permitted any municipality, regardless of size, to adopt a home rule charter; permitted the adoption of a home rule charter at the time of incorporation; and required the legislature to establish proce- dures for adopting, amending, and repealing charters for existing and prospective home rule municipalities. In 1972, the Colorado General Assembly implemented Section 9 of Article XX by enacting the "Municipal Home Rule Act of 1971. The requirements of the Act are discussed in Chapter II of this publication. For a complete chronology of amendments to Article XX, see Appendix B. HOME RULE POWERS Sources of Power to Act The manner of determining whether a municipality has the power to act in a certain area is different for home rule and statutory municipalities. Statutory municipalities must have a spe- cific grant of authority, either from the state constitution or the state statutes, in order to act. In matters of statewide concern, a home rule municipality also must have a specific grant of authority to act. However, a home rule municipality, in local and municipal matters, does not need a specific grant of authority, but if there is a limitation on its ability to act in the Colorado Constitution or in its own charter, it cannot act. In other words a home rule munici- pality does not need a specific grant of authority to act; it has the authority to act in local and 2 Colorado Municipal League municipal matters unless there is a specific limitation in the Constitution or charter. This is the reason home rule charters are considered documents of limitation. Because home rule municipalities derive their authority to act from the Constitution, terms in the charter limit the general constitutional authority. Failure to comply with a charter limitation renders the action taken invalid Limitation on Power to Act Section 8 of Article XX provides that Article XX supersedes all other constitutional provi- sions. However, several state constitutional provisions have been interpreted by express lan- guage or by the courts to supersede home rule powers A home rule municipality can generally exercise the same powers as those granted to statu- tory municipalities. However, a home rule municipality has more power than a statutory municipality because it can look beyond the statutes and a few constitutional provisions to Article XX as a source of power. Still, the powers of home rule municipalities are limited by their charters, federal law, the state constitution, court decisions, and at times, legislation enacted by the General Assembly. MATTERS OF `LOCAL AND MUNICIPAL,' `STATEWIDE' AND `MIXED CONCERN' Section 6 of Article XX provides: It is the intention of this article to grant and confirm to the people of all munic- ipalities coming within its provisions the full right of self government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right. This provision indicates that home rule municipalities are not limited to exercising only the specific powers mentioned in Article XX, but that they have every power essential or proper to the exercise of the right of self government in local and municipal matters. Thus, the determination of whether a particular matter is one of "local and municipal" concern under Article XX is key to home rule authority. In court cases challenging the authority of home rule municipalities to act, the courts have created three classifications: matters of local and municipal concern; matters of statewide concern; and matters of mixed statewide and local concern.' Colorado courts have interpreted these classifications and home rule powers under Article XX as follows: Matters of Local and Municipal Concem If a matter is of "local and municipal" concern and the home rule municipality has not adopted legislation (ordinances or charter provisions) regulating the matter, then state statutes apply within the home rule municipality.' If a matter is of local and municipal concern and both the state and the municipality have legislation regulating it, the municipal ordinance or charter provision will supersede the state statute if, and only if, the statute actually conflicts with the ordinance or charter Home Rule Handbook 3 Matters of Statewide Concern If a matter is of "statewide" concern, a home rule municipality cannot adopt legislation regarding the matter except as specifically provided in the statute Language in some cases indicates that a home rule municipality has no power to adopt legislation relating to a subject of solely "statewide" concern. However, there also are indications that a home rule munici- pality may adopt non conflicting ordinances regulating even matters of statewide concern, at least if the state legislature specifically permits consistent local regulations." In addition, it has been stated that, when the matter involves a specific constitutionally granted home rule power, and even though the matter may be of statewide concern, the legislature has no power to enact any law that denies a right specifically granted by the constitutiona Mixed Statewide and Local Concern On subjects of "mixed" statewide and local concern, the home rule municipality has the power to legislate if the charter or ordinance provision does not conflict with the state legisla- tion or if the state has not preempted the field. In some recent decisions, courts have determined that a matter is at least of mixed state and local concern but have declined to determine whether the matter is of exclusive statewide concern. How TO DETERMINE WHETHER A MATTER IS OF LOCAL, STATEWIDE, OR MIXED CONCERN The Colorado Supreme Court, not the General Assembly, has the power to make the final decision of whether a matter is of local, statewide, or mixed concern. However, the court makes the decision on a case by case basis, generally after extensive litigation. So how does a municipal official determine ahead of time whether a home rule municipality has the power to act? There are several sources and guidelines: 1. Article XX sets forth specific areas of local and municipal concern. 2. Several court decisions have declared matters of local, statewide, or mixed concern. See Table 1 (Page 11). 3. The General Assembly has granted several powers to statutory municipalities, and a home rule municipality has at least as much power as a statutory municipality. It is important to remember two issues when looking to state statutes for home rule munici- pality authority: a. The charter may limit what the state statute allows, in which case the charter controls; b. Because home rule powers derive from Article XX of the Colorado Constitution, the General Assembly has no power to limit local legislation by statute. The General Assembly may attempt to limit home rule powers by declaring legislation a matter of statewide concern. The court will con- sider such a declaration; however, the courts are not bound by the declara- tion. In fact, courts have declared several matters as local concern which the General Assembly had declared to be of statewide concern.'' 4. Federal or state constitutional provisions may limit a home rule municipality's power to act in a specific area. For example, Article X Section 17 of the Colorado Constitution adopted after Article XX has been construed to preempt home rule municipalities from levying an income tax.'$ Constitutionally imposed tax and spending limits and term limits on elected officials apply equally to home rule municipalities. 4 Colorado Municipal League 5. If the issue is a felony under state law, it will likely be considered a matter of statewide concern. 6. In City and County of Denver a State of Colorado (the case deciding that the General Assembly could not preempt local employee residency requirements), the Colorado Supreme Court set forth the factors it considers in determining whether a matter is of local, statewide, or mixed concern. The Court emphasized that there was no particular test to be applied in every instance, but it would apply several factors on a case by case basis. The Court stated that it balances the relative interests of the state and the home rule municipality, recognizing that every issue will include interests of each. The court considers: a. The need for statewide uniformity of regulation; b. The impact of municipal regulation on persons living outside the municipality; c. The historical considerations, i.e., whether a particular matter is traditionally governed by state or local government; d. The necessity of cooperation among government units and local interests; e. Whether the Colorado Constitution commits a matter to state or local regulation. Since the landmark decision in Denver v. State, the appellate courts in Colorado have more or less systematically applied the five factors enumerated in that case to determine whether other matters should be considered of local or statewide concern?' LOCAL REGULATION IN AREAS OF STATEWIDE OR MIXED CONCERN Statewide Concem The fact that a subject has been declared to be of statewide concern does not necessarily mean that a home rule municipality cannot legislate on the subject. The state legislation may specifically leave room for local legislation. For instance, liquor regulation has been declared a matter of statewide concern; however, several liquor statutes specifically allow some local regulation? There must be a conflict between the state statute and the ordinance for preemption of the local ordinance to occur. The test for determining whether a conflict exists is whether the ordinance authorizes what the statute forbids, or forbids what the statute has expressly autho- rized. There is no conflict to the extent the municipal ordinance is merely more restrictive than the state statute. Mixed Concern In matters of mixed concern, the charter or ordinance of a home rule municipality can coexist with the statute so long as the local ordinance and the state statute do not conflict. In the event of a conflict, the conflicting portion of the charter or ordinance is superseded by the statute 3 In an area of mixed concern, the Colorado Supreme Court has held that any state preemption must derive from a state statute, and not some other type of state action such as a P.U.C. tariff. If the home rule municipality decides, on some basis, that it does have the power to legis- late on a particular subject, it must still look to its charter for any limitations on the municipal- ity's power to act in the area. If the charter contains a limitation, the municipality must act in accordance with the charter limitation, or its action may be invalid. ADVANTAGES AND DISADVANTAGES OF HOME RULE When considering the adoption of a home rule charter, the citizens of each municipality must decide whether home rule would be beneficial, considering the municipality's own needs Home Rule Handbook 5 and problems. Municipal officials should consider or understand the possible advantages and disadvantages of home rule. Home rule allows flexibility in the exercise of governmental powers. As discussed in the previous section, when a local problem arises, a statutory municipality can look only to the state statutes and a few constitutional provisions for its power or authority to act. If no power has been granted, the municipality must either ignore the problem or ask the state legislature to adopt a statute granting the necessary power. Home rule municipalities, on the other hand, can look both to the state statutes and to the specific and general grants of power found in Article XX of the Colorado Constitution. Thus, where no statutory authority to act exists, home rule municipalities may still have the power to solve their local problems and solve them quickly, without resort to the state legislature. If a statute does grant statutory municipalities the power to act, it may additionally require the municipalities to follow certain procedures and other limitations when acting. In other words, the state may control not only the question of whether the municipality has the power to act, but also the question of how that power should be exercised. On the other hand, in matters of local and municipal concern, home rule municipalities are not required to follow procedures outlined in the statutes and thus may shape solutions for local problems to fit local needs. As an example of the flexibility of home rule power, the following is a partial list of actions which home rule municipalities can take but which statutory municipalities may not pursue or for which statutory authority is doubtful. A home rule municipality may: within certain limits, create new tax sources to meet local financial needs; provide a method for the simple and expeditious transfer of funds among municipal departments; establish its own maximum debt limitations or have no maximum limitation, as it desires; establish its own time limitations for the repayment of municipal bonds; create its own governmental form and administrative structure, including such matters as the size of its governing body, the powers of elected and appointed officials, terms of office of the members of its governing body and whether they are elected from districts or at- large, quorum and voting requirements, the manner of filling vacancies, the allocation of powers among elected and appointed officials, boards and commissions, and staff; establish its own procedures for providing street, sidewalk, and other special improve ments; establish procedures and dates for municipal elections differing from those established by the statutes, including such matters as regular and special election dates, the dates when elected officials will take office, the creation of an election commission, the pro- cedure for conducting elections; and who may vote in municipal elections; establish procedures by which ordinances and resolutions may be adopted, including methods of adopting codes by reference; determining whether actions will be taken by ordinance, resolution, or motion; procedures for notice, hearing, publication, or post- ing with regard to ordinances; and determination of the effective date of ordinances; establish procedures and requirements pertaining to regular and special meetings and executive sessions; establish, within certain bounds, municipal court procedures; 6 Colorado Municipal League establish, within limits, greater penalties and jail sentences for ordinance violations than those provided for by statute; establish procedures for the sale or disposal of public property and the awarding of contracts; have available broader powers of eminent domain outside municipal boundaries; have available broader and more flexible taxing powers, including the ability to collect, administer, and enforce sales and use taxes and to determine what transactions are subject to or exempt from sales and use taxes; the ability to establish procedures for the adoption, amendment, increase, or decrease of taxes; the authority to levy taxes not available to statutory municipalities, such as lodgers taxes, admissions taxes, real estate transfer taxes, and other excise taxes; and the ability to provide property tax increase limits different from those provided for in the statutes; have available broader and more flexible land use, zoning, and planning powers; and have greater authority over the qualifications of municipal officers and employees. As can be seen from the previous section, the limits of home rule power have not been rigidly established since the municipality's power to act may depend in part on how the subject of legislation is classified, i.e., of local and municipal, statewide, or mixed concern. Depending upon the particular viewpoint, this lack of definite limits on home rule power may constitute either an advantage or disadvantage of home rule. It may be a disadvantage in the sense that it creates some legal uncertainty when a home rule municipality legislates in a relatively new area. However, it may also be termed an advantage of home rule since the lack of rigid legal boundaries allows home rule municipalities to maintain flexibility when attempting to find new solutions to local problems. In addition to providing flexibility in the exercise of governmental powers and increasing local control over local problems, home rule places decision making in the hands of those officials who are closest to the people and makes those officials totally responsible for their decisions. The legislature cannot be blamed for a lack of authority to solve local problems; nor can it be blamed for limiting the choices of solutions to those problems. Thus, the citizens of a home rule municipality may find they have a greater voice and interest in the conduct of municipal affairs. A home rule charter is legally viewed as a document of limitation; that is, the charter provi- sions are limitations on the powers granted by the Colorado Constitution to a home rule municipality in matters of local concern. If a restrictive home rule charter is adopted, the flexi- bility offered by home rule may well be lost. It may be preferable to remain a statutory munici- pality than to be a home rule municipality with a restrictive charter which requires numerous votes of the citizens, establishes restrictive mill levy limits, itemizes the internal administrative organization of the government, contains severe bonding requirements, or details the powers of the municipality. Thus, home rule may be either an advantage or disadvantage depending upon the nature of the charter. One of the threshold problems faced by those municipalities considering the adoption of home rule is its cost. The Municipal Home Rule Act provides that the costs incurred in the process of adopting a home rule charter are to be paid by the municipality. Those costs may vary and may include special attorney fees and other special consultant fees, expenses incurred in publishing notices of elections and publishing the final charter, secretarial services and general supplies for the charter commission, and the expenses of holding special elec- tions. Other than special consultant fees, the highest costs to the municipality may be publica- tion costs and the costs of holding special elections. Home Rule Handbook 7 Finally, the adoption of a home rule charter does not ensure good local government. The quality of the municipal government will still depend upon the quality of the municipal offi- cials and the degree of interest and concern shown by citizens in their government. Perhaps home rule can be seen as a means of placing the responsibility for the quality of municipal government more firmly in the hands of the municipality's own citizens and officials. ENDNOTES 1. City of Clinton v. Cedar Rapids and Missouri River Railroad, 24 Iowa 455 (1868); J.F. Dillon, Municipal Corporations, 237 (5th ed. 1911). Dillon's Rule was accepted by the Colorado Supreme Court in Phillips v. City of Denver, 19 Colo. 179, 34 P. 902 (1893) and City of Durango v. Reinsberg, 16 Colo. 327, 26 P. 820 (1891). 2. C.R.S. 31 -2 -201, et seq. All statutory references in this Handbook refer to the Colorado Revised Statutes as amended through July 1999. 3. City and County of Denver v. Miller, 149 Colo. 96, 368 P.2d 982 (1962); McNichols v. City and County of Denver, 123 Colo. 132, 230 P.2d 591 (1950); Cherry Creek Aviation, Inc. v. City of Steamboat Springs, 958 P.2d 515 (Colo. App. 1998). 4. Colo. Const. art. X, 17 regarding the levy of income taxes; City and County of Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958); Colo. Const. art. XXII regarding the regulation of the manufacture, sale and distribution of intoxicating liquors; Colo. Const. art. XXV regarding regulatory powers over privately owned utilities; Colo. Const. art. X, 20, the Taxpayers Bill of Rights; Colo. Const. art. XVII, 11, term limits on elected officials. 5. Leek v. City of Golden, 870 P.2d 580 (Colo. App. 1993); 31 -1 -102. 6. City and County of Denver v. State of Colorado, 788 P.2d 764 (Colo. 1990)(as this case is referred to extensively in this book, it is hereinafter referred to as Denver v. State); City and County of Denver v. Board of County Commissioners, 782 P.2d 753 (Colo. 1989); National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988); City and County of Denver v. Colorado River Water Conservation District, 689 P.2d 730 (Colo. 1985). 7. Colo. Const. art. XX, 6; Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971). 8. Denver v. State, 788 P.2d 764 (Colo. 1990); City and County of Denver v. Colorado River Water Conservation District, 696 P.2d 730 (Colo. 1985); Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); Winslow Construction Company v. City and County of Denver, 960 P.2d 685 (Colo. 1998); Fraternal Order of Police v. City and County of Denver, 926 P.2d 582 (Colo. 1996). 9. City and County of Denver v. Colorado River Water Conservation District, 696 P.2d 730 (Colo. 1985). 10. See, e.g., City and County of Denver v Tihen, 77 Colo. 212, 235 P. 777 (1925). 11. See, e.g., Pierce v. City and County of Denver, 193 Colo. 347, 565 P.2d 1337 (1977); Conrad v. City of Thornton, 191 Colo. 444, 553 P.2d 822 (1976). 12. City of Thomton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978)(the right of eminent domain); Gosliner v. Denver Election Commission, 191 Colo. 328, 552 P.2d 1010 (1976)(elections). 13. Denver v. State, 788 P.2d 764 (Colo. 1990); National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988); Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); DeLong v. City and County of Denver, 195 Colo. 27, 576 P.2d 537 (1978); City and County of Denver v. Board of County Commissioners, 782 P.2d 753 (Colo. 1989); City of Colorado Springs v. Board of County Commissioners of Eagle County, 895 P.2d 1105 (Colo. App. 1994); U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo. 1997); Voss v. Lundvall, 830 P.2d 1061 (Colo. 1992); R.E.N. v. City of Colorado Springs, 819 P.2d 1359 (Colo. 1992). 14. See, e.g., National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988). 15. "While the statutory declaration is relevant, it is not binding. If the constitutional provisions establishing the right of home rule municipalities to legislate as to their local affairs are to have any 8 Colorado Municipal League meaning, we must look beyond the mere declaration of a state interest and determine whether in fact the interest is present." Denver v. State, 788 P.2d at 768 n.6; City and County of Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958); Four County Metropolitan Capital Improvement District v. Board of County Commissioners, 1249 Colo. 284, 369 P.2d 1204 (1971); Winslow Construction Co. v. City and County of Denver, 960 P.2d 685 (Colo. 1998). 16. Woolverton v. Denver, 146 Colo. 247, 361 P.2d 982 (1961), overruled on other grounds by Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); Leek v. City of Golden, 870 P.2d 580 (Colo. App. 1993). 17. See Denver v. State, 788 P.2d 764 (Colo. 1990)(employee residency requirements). 18. City and County of Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958). 19. Colo. Const. art. X, 20, the Taxpayer's Bill of Rights; Colo. Const. art. XVIII, 11, term limits on elected officials. 20. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973); Quintana v. Edgewater Municipal Court, 179 Colo. 90, 498 P.2d 931 (1972). 21. Denver v. State, 788 P.2d 764 (Colo. 1990). See also City and County of Denver v. Board of County Commissioners, 782 P.2d 753 (Colo. 1989)(comparing interest of Denver in construction of water projects outside its boundaries with the interest of the state and of the counties in which the water projects are located). See, e.g., National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988)(comparing city's interest in controlling outdoor advertising signs within its municipal borders, i.e., safety, recreation, aesthetics, with state's interest in continued eligibility for federal highway funds threatened by inconsistent local regulations); Denver Rio Grande W.R.R. v. City and County of Denver, 673 P.2d 354 (Colo. 1983)(comparing city's interest in construction of certain viaducts with the "paramount" interest of those living outside of Denver and holds that the construction of the viaducts was of mixed concern); City of Craig v. Public Utility Commission, 656 P.2d 1313 (Colo. 1983)(finding that although city has interest in safety of railroad crossings, state's interest is pre- dominant). 22. National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988)(holding uniform regula- tion of highway advertising signs necessary to preclude potential loss of federal revenue); Benion v. City and County of Denver, 180 Colo. 213, 504 P.2d 350 (1972)(finding that state residents have an expectation of uniformity in local criminal laws); Denver v. State, 788 P.2d at 769, citing with approval State ex ref Hemig v. City of Milwaukee, 231 Or. 473, 479, 373 P.2d 680, 684 (1962)( "In the appropriate case the need for uniformity in the operation of the law may be a sufficient basis for legislative preemption. But uniformity in itself is no virtue, and a municipality is entitled to shape its local law as it sees fit if there is no discernible pervading state interest involved. 23. See Denver Rio Grande W.R.R. v. City and County of Denver, 673 P.2d 354 (Colo. 1983)(finding Denver's decision to construct viaduct had important impact on people residing beyond the munici- pal limits). See also Klemme, at 342 (finding that "statewide concern" means those things which are of significant interest to people living outside the home rule municipality). 24. Also relevant to this determination are historical considerations, i.e., whether a particular matter is one traditionally governed by state or by Local government. 1 C. Antieau, Municipal Corporation Law 3.40 at 3 -115 (1989); Denver v State, 788 P.2d at 771. 25. Further, "where not only uniformity is necessary, but cooperation among governmental units, as well, as where action of state and county officials within the limits of the city is imperative to effec- tuate adequate protection outside the city, the matter will in all likelihood be considered a state concern." Antieau, 3.40 at 3 -119 to 3 -120; Denver a State, 788 P.2d at 768. 26. "Although we agree with the state that the enumeration in Section 6 of matters subject to regula- tion by home rule municipalities is not dispositive, we also agree with the cities that it is significant. If the state is unable to demonstrate a sufficiently weighty state interest in superseding local regula- tion of such areas, then pursuant to the command of Section 6, statutes in conflict with such local ordinances or charter provisions are superseded." Denver v. State, 788 P.2d at 771. 27. For the most thorough application of the Denver v. State criteria in other contexts, see Voss v. Lundvall, 830 P.2d 1061 (Colo. 1992); Fraternal Order of Police v. Denver, 926 P.2d 582 (Colo. 1996); Winslow Construction,960 P.2d 685 (Colo. 1998). Home Rule Handbook 9 28. Kelly v. City of Fort Collins, 163 Colo. 520, 431 P.2d 785 (1967); People ex rel Carlson v. City and County of Denver, 60 Colo. 370, 153 P. 690 (1915). 29. CRSS 25 -1- 316(3) allowing local control of limitations on drinking alcoholic beverages by certain classes of people, in certain places, or at certain times; CRSS 18 -13- 122(8) allowing municipalities to regulate underage possession or consumption of alcohol, as long as municipal regulations are at least as strict as state regulations. 30. Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); DeLong v. City and County of Denver, 195 Colo. 27, 576 P.2d 537 (1918). 31. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973). 32. City and County of Denver v. Howard, 622 P.2d 568 (Colo. 1981); Vela v. People, 174 Colo. 465, 484 P.2d 1204 (1971); Ray v. City and County of Denver, 109 Colo. 74,121 P.2d 886 (1942). 33. Denver v. State, 788 P.2d at 767; National Advertising Co. v. Dept. of Highways, 751 P.2d 632 (Colo. 1988); City and County of Denver v. Colorado River Water Conservation District, 696 P.2d 730 (Colo. 1985); Voss v. Lundvall, 830 P.2d 1061 (Colo. 1992). 34. U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509 (Colo. 1997). 35. Deluxe Theatres, Inc. v. City of Englewood, 198 Colo. 85, 596 P.2d 771 (1979); Security Life and Accident Co. v. Temple, 177 Colo. 14, 492 P.2d 63 (1972); Farmers Mutual Auto Insurance Co. v. Temple, 176 Colo. 537, 491 P.2d 1371 (1971); City and County of Denver v. Duffy Storage Moving Co., 168 Colo. 91, 450 P.2d 339 (1969); Berman v. City and County of Denver, 156 Colo. 538, 400 P.2d 434 (1965); City of Englewood v. Wright, 147 Colo. 537, 364 P.2d 569 (1961). 36. City and County of Denver v. Blue, 179 Colo. 351, 500 P.2d 569 (1961). 37. Colo. Const. art. II, 6(2). Note that the constitution arguably requires a charter provision because it does not include the customary language, "or an ordinance adopted pursuant to the charter." 38. Davis v. City of Pueblo, 158 Colo. 319, 406 P.2d 671 (1965). 39. Colo. Const. art. XX, 6; Evert v. Quren, 37 Colo. App. 402, 549 P.2d 791 (1976); 31-1- 102(2). 40. Colo. Const. art. XX, 6; Board of County Commissioners v. City of Colorado Springs, 66 Colo. 111, 180 P. 301 (1919). 41. Kingsley v. City and County of Denver, 126 Colo. 194, 247 P.2d 805 (1952); Cook v. City of Delta, 100 Colo. 7, 64 P. 2d 1257 (1937); Clough v. City of Colorado Springs, 70 Colo. 87, 197 P. 896 (1921); Englewood Police BenefitAss'n. v. City of Englewood, 811 P.2d 464 (Colo. App. 1990), cert. denied; May v. Town of Mountain Village, 969 P.2d 790 (Colo. App. 1997). 42. Gosliner v. Denver Election Commission, 191 Colo. 328, 552 P.2d 1010 (1976); Artes -Roy v. City of Aspen, 856 P.2d 823 (Colo. App. 1993). 43. Gosliner v. Denver Election Commission, 191 Colo. 328 552 P.2d 1010 (1976); Glenwood Post v. City of Glenwood Springs, 731 P.2d 761 (Colo. App. 1986). 44. C.R.S. 13 -10 -103; Artes -Roy v. City of Aspen, 856 P.2d 823 (Colo. App. 1993). 45. City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 671 (1965). 46. Colo. Const. art. XX, 6. 47. City of Thornton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978); City and County of Denver v. Board of County Commissioners of Arapahoe County, 113 Colo. 150, 156 P.2d 101 (1945); Town of Parker v. Norton, 939 P.2d 535 (Colo. App. 1997). See Chapter II. 48. See Chapter II, and the cases cited in Table 1 on page 11 under the category of "Taxation and Finance." 49. See Chapter II, and the cases cited in Table 1 on page 11 under the category of "Real Property and Land Use." 50. Colo. Const. art. XX, 6(a); Denver v. State, 788 P.2d 764 (Colo. 1990); Fraternal Order of Police v. City and County of Denver, 926 P.2d 582 (Colo. 1996). 10 Colorado Municipal League TABLE 1: Areas of Concern Determined by Courts Traffic Regulations LOCAL/MUNICIPAL Regulation of Traffic at Street Intersections City and County of Denver v. Henry, 95 Colo. 582, 38 R2d 895 (1934). People v. Graham, 107 Colo. 202, 110 P.2d 256 (1941). Careless and Reckless Driving People v. Thompson, 165 Colo. 172, 437 R2d 537 (1968). Retallick v. City of Colorado Springs, 142 Colo. 214, 351 P.2d 884 (1960). Requirement for Stopping Cars when School Bus has Flashing Lights Pickett v. City of Boulder, 144 Colo. 387, 356 R2d 489 (1960). Regulation of Traffic Speeds upon Municipal Streets Wiggins v. McAuliffe, 144 Colo. 363, 356 R2d 487 (1960). People v. Hizhniak, 195 Colo. 427, 579 R2d 1131 (1978). Unauthorized Parking on Private Property Lehman v. City and County of Denver, 144 Colo. 109, 355 R2d 309 (1960). Rights -of -Way at Street Intersections City and County of Denver v. Henry, 95 Colo. 582, 38 R2d 895 (1934). Ordinary Regulation of Traffic City of Canon City v. Meals, 137 Colo. 169, 323 R2d 614 (1958). STATEWIDE Driving Under the Influence City of Canon City v. Merris, 137 Colo. 169, 323 R2d 614 (1958), limited in Vela v. People, 174 Colo. 465, 484 R2d 1204 (1971) (over- ruling dicta that state law and ordi- nance are mutually exclusive on matters of local concem even where there is no conflict). Driving with Suspended or Revoked License City and County or Denver v. Palmer, 140 Colo. 27, 342 R2d 687 (1959). Davis v. City and County of Denver, 140 Colo. 30, 342 R2d 674 (1959). Prohibition on Leaving the Scene of the Accident People v. Graham, 107 Colo. 202, 110 R2d 256 (1941). Duties of Drivers of Motor Vehicles to Stop after an Accident to give Information and Aid People v. Graham, 107 Colo. 202, 110 R2d 256 (1941). Business Regulations LOCALJMUNICiPAL Regulation of the Sale and Distribution of Milk Independent Dairymen's Association v. City and County of Denver, 142 F.2d 940 (10th Cir. 1944). Business Occupational Privilege Tax State Farm Mutual v. Temple, 176 Colo. 537, 491 R2d 1371 (1971). Regulation of Telephone Charges for Local Service within Territorial Limits City and County of Denver v. Mountain States Tele. Tele. Co, 67 Colo. 225, 184 8604 (1919), cert. dismissed 251 U.S. 545, 40 S.Ct. 219, 64 L. Ed. 407 (1920). Weights and Measures Ordinance Blackman v. County Court In and For City and County of Denver, 169 Colo. 345, 455 R2d 885 (1969). Notification of Use of Pesticides COPARR v. City of Boulder, 735 F Supp. 363 (D. Colo. 1989), aff'd, 942 F2d 724 (10th Cir. 1991). See Wisconsin Public Intervenor v. Monier, 501 U.S. 597, 111 S.Ct. 2476, 115 L.Ed. 2d 532 (1991). Sunday Closing Ordinances Rosenbaum v. City and County of Denver, 102 Colo. 530, 81 P2d 760 (1938). Availability and Quality of Ambulance Service DuHamel v. City of Arvada, 42 Colo. App. 491, 601 R2d 639 (1979). STATEWIDE Requirement of Use of Colorado Materials in Construction of a Municipal Building City and County of Denver v. Bossie, 83 Colo. 329, 266 R 214 (1928). Licensing of Electrical Contractors and Electricians Century Electric Service v. Stone, 193 Colo. 181, 564 R2d 953 (1977). Regulation of Telephone Company and Rates Charged Mountain States Tele. Tele. Co. v. City and County of Denver, 125 Colo. 167, 243 R2d 397 (1952). City of Englewood v. Mountain States Tele. Tele. Co., 163 Colo. 400, 431 R2d 40 (1967). Regulation of Public Utilities Colorado Constitution Article XV City of Craig v. Public Utilities Commission, 656 R2d 1313 (Colo. 1983). Providing a Coordinated System of Emergency Care DuHamel v. City of Arvada, 42 Colo. App. 491, 601 R2d 639 (1979). Rent Control Lot Thirty -Four Joint Venture v. Town of Telluride, 976 R2d 303 (Colo. App. 1998), cert. granted (1999). MIXED Uniform Safety Code C.R.S. 42 -4 -101 et seq. Regulation of Utilities Serving in Areas of Local and Municipal Concern Zelinger v. Public Service Co. of Colo., 164 Colo. 424, 435 R2d 412 (1967). Control of Outdoor Advertising Devices along Roads of State Highway System National Advertising Co. v. Dept. of Highways, 751 R2d 632 (Colo. 1988). City of Fort Collins v. Root Outdoor Advertising Co., 788 R2d 149 (Colo. 1990). Licensing of Hospitals Spears Free Clinic and Hospital v. State Board of Health, 122 Colo. 147, 220 R2d 872 (1950). Regulation of Peddlers McCormick v. City of Montrose, 105 Colo. 493, 99 R2d 969 (1940). Regulation of Oil and Gas Drilling Voss v. Lundvall, 830 R2d 1061 (Colo. 1992). Regulation of Relocation of Public Utilities U.S. West Communications, Inc. v. City of Longmont, 948 R2d 509 (Colo. 1997). Home Rule Handbook 11 Capital Improvements LOCAUMUNICIPAL Construction of Off Street Parking Facilities Davis v. City of Pueblo, 158 Colo. 31.9, 406 P.2d 671 (1965). Charter Provision for the Erection of an Auditorium, Purchase of Site and Issuance of Bond Therefor City and County of Denver v. Hallett, 34 Colo. 393, 83 R2d 1066 (1905). Operation of Mass Transportation Systems within Territorial Limits Durango Transportation, Inc. v. City of Durango, 807 R2d 1152 (Colo. 1991). Ordinances Requiring Plans for Public Buildings to be Prepared and Submitted by a State Licensed Architect Heron v. City and County of Denver, 131 Colo. 501, 283 P2d 647 (1955). STATEWIDE Location of a Waste Disposal Facility and Site City and County of Denver v. Eggert, 647 R2d 216 (Colo. 1982). MIXED Site Selection and Construction of Municipal Water Facility Outside of Municipality City and County of Denver v. Board of County Commissioners, 782 R2d 753 (Colo. 1989). City of Colorado Springs v. Board of County Commissioners of Eagle County, 895 R2d 1105 (Colo. App. 1994). Real Property and Land Use LOCAUMUNICIPAL Exercise of Power of Eminent Domain City of Thomton v. Farmers Reservoir Irrigation Co., 194 Colo. 526, 575 R2d 382 (1978). Town of Parker v. Norton, 939 R2d 535 (Colo. App. 1997). City and County of Denver v. Board of County Commissioners of Arapahoe County, 113 Colo. 150, 156 P2d 101 (1945). Acquisition of Light Plants Cook v. City of Delta, 100 Colo. 7, 64 R2d 1257 (1937). Preservation of Value of City Property Board of County Commissioners of Adams County v. City of Thornton, 629 P2d 605 (Colo. 1981). Zoning Moore v. City of Boulder, 29 Colo. App. 248, 484 R2d 134 (1971). Averch v. City and County of Denver, 78 Colo. 246, 242 P. 47 (1925). Roosevelt v. City of Englewood, 176 Colo. 576, 492 P2d 65 (1971). City of Colorado Springs v. Smartt, 620 R2d 1060 (Colo. 1980). Service Oil Co. v. Rhodus, 179 Colo. 335, 500 R2d 807 (1972). City of Greeley v. Ells, 186 Colo. 352, 527 8 2d 538 (1974). Sherman v. City of Colorado Springs, 680 P.2d 1060 (Colo. App. 1983). Sellon v. City of Manitou Springs, 745 R2d 229 (Colo. 1987). VFW v. City of Steamboat Springs, 195 Colo. 44, 575 P2d 835 (1978). Zavata v. City and County of Denver, 759 R2d 664 (Colo. 1988). MIXED Slum Clearance, Urban Blight, Housing Standards People ex rel. Stokes v. Newton, 106 Colo. 61, 101 P2d 21 (1940). Denver Urban Renewal Authority v. Byme, 618 R2d 1374 (Colo. 1980). Control of Outdoor Advertising Devices along Roads of State Highway System National Advertising Co. v. Dept. of Highways, 751 P2d 632 (Colo. 1988). City of Fort Collins v. Root Outdoor Advertising Co., 788 82d 149 (Colo. 1990). Regulation of Oil and Gas Drilling Voss v. Lundvall, 830 R2d 1061 (Colo. 1992). Criminal Activities LOCAUMUNICIPAL Vagrancy Zerobnick v. City and County of Denver, 139 Colo. 139, 337 P.2d 11 (1959). Domininguez v. City and County of Denver, 147 Colo. 233, 363 R2d 661 (1961). STATEWIDE Granting of a Jury Trial in Petty Offense Cases Hardamon v. Municipal Court of the City of Boulder, 178 Colo. 271, 497 P2d 1000 (1972). Obscenity Pierce v. City and County of Denver, 193 Colo. 347, 565 P2d 1337 (1977). Larceny Gazotti v. City and County of Denver, 143 Colo. 311, 352 82d 963 (1960). MIXED Gambling Woolverton v. City and County of Denver, 146 Colo. 247, 361 P2d 982 (1961), overruled on other grounds by Vela v. People, 147 Colo. 465, 484 82d 1204 (1971). Vick v. People, 166 Colo. 565, 445 R2d 220 (1968), cert. denied, 394 U.S. 945, 89 S.Ct. 1273, 22 L.Ed 2d 477 (1969). Shoplifting Quintana v. Edgewater Municipal Court, 179 Colo. 90, 498 P2d 931 (1972). Resistance to Arrest Bennion v. City and County of Denver, 180 Colo. 213, 504 82d 350 (1972). Assault and Battery City of Aurora v. Martin, 181 Colo. 72, 507 P.2d 868 (1973). Pawnbrokers Provident Loan Soc. V. City and County of Denver, 64 Colo. 400, 172 8 10 (1918). Interference with a Police Officer City and County of Denver v. Howard, 622 82d 568 (Colo. 1981). Juvenile Prosecution R.E.N. v. City of Colorado Springs, 819 R2d 1359 (Colo. 1992). Taxation and Finance LOCAUMUNiCiPAL. Imposition of Purely Local Excise and Sales Taxes Security Life and Accident Co. v. Temple, 177 Colo. 14, 492 P2d 63 (1972). Berman v. City and County of Denver, 156 Coto. 538, 400 R2d 434 (1965). Financing of a Program of Capital improvements Security Life and Accident Co. v. Temple, 177 Colo. 14, 492 R2d 63 (1965). 12 Colorado Municipal League Berman v. City and County of Denver, 156 Colo. 538, 400 R2d 434 (1965). Assessment against Property for Local Improvements Commissioners of El Paso County v. City of Colorado Springs, 66 Colo. 111, 180 P 301 (1919). Occupation Tax City and County of Denver v. Duffy Storage and Moving Co., 168 Colo. 91, 450 R2d 339 (1969). State Farm Mutual v. Temple, 176 Colo. 537, 491 R2d 1371 (1971). Issuance of Bonds to Buy Land for Donation to United States as Site for Air Corps Technical School and Bombing Field in or near City McNichols v. City and County of Denver, 101 Colo. 316, 74 R2d 99 (1937). Levy of Tax on Admissions to Public Places Deluxe Theatres, Inc. v. City of Englewood, 198 Colo. 85, 596 R2d 771 (1979). Collection of Charges for Utility Services Sant v. Stephens, 753 R2d 752 (Colo. 1988). Procedures for Creating and Assessing Special Improvement Districts Board of County Commissioners v. City of Colorado Springs, 66 Colo. 111, 180 P. 301 (1919) Sanbom v. City of Boulder, 74 Colo. 358, 221 R 1077 (1924). Establishing Charges for Municipal Services Westem Heights Land Corp v. City of Ft. Collins, 146 Colo. 464, 362 R2d 155 (1961). Sales and Use Taxes Berman v. City and County of Denver, 156 Colo. 538, 400 R2d 434 (1965). Security Life and Accident Co. v. Temple, 177 Colo. 14, 492 R2d 63 (1965). Winslow Construction Company v. City and County of Denver, 960 R2d 685 (Colo. 1998). Admissions Taxes Deluxe Theatres, inc. v. City of Englewood, 198 Colo. 85, 596 R2d 771 (1979). City of Boulder v. Regents of University of Colorado, 179 Colo. 420, 501 R2d 123 (1972). Budgeting of Anticipated Revenue City and County of Denver v. Blue, 179 Colo. 351, 500 R2d 970 (1972). Collection of Delinquent Utility Charges by Creation of a Lien on Property City of Craig v. Hammat, 809 R2d 1034 (Colo. App. 1990), cert. denied. Sant v. Stephens, 753 P.2d 752 (Colo. 1988). STATEWIDE Declaration of Public Policy in Matters of Taxation People v. City and County of Denver, 90 Colo. 598, 10 P.2d 1106 (1932). Streets and Highways of Home Rule City with Respect to Taxation of Gasoline People v. City and County of Denver, 90 Colo. 598, 10 R2d 1106 (1932). Exempting Cemeteries from Local Assessments City and County of Denver v. Tihen, 77 Colo. 212, 235 P 777 (1925), limited in State Farm Mutual v. Temple, 176 Colo. 537, 491 R2d 1371 (1971) (overruling proposi- tion that the matter of assessment for local improvement districts is of statewide concem). Taxpayer Appeals of Home Rule Taxing Decisions Walgreen Co. v. Chames, 819 R2d 1039 (Colo. 1991). Winslow Construction Company v. City and County of Denver, 960 R2d 685 (Colo. 1998). MIXED Construction and Apportionment of Cost for Viaducts over Railroad Tracks Denver and Rio Grande Westem Railroad Co. v. City and County of Denver, 673 R2d 354 (Colo. 1983). Rates Charged by Small Loan Companies Ray v. City and County of Denver, 109 Colo. 74, 121 R2d 886 (1942) (by implication). Municipal Elections LOCAUMUNiCIPAL Municipal Elections Gosliner v. Denver Election Commission, 191 Colo. 328, 552 R2d 1010 (1976). Englewood Police Benefits Ass'n. v. City of Englewood, 811 R2d 464 (Colo. App. 1990), cert denied. Purchase of Voting Machines Kingsley v. City and County of Denver, 126 Colo. 194, 247 R2d 805 (1952). Voter Qualifications May v. Town of Mountain Village, 969 R2d 790 (Colo. Ct. App. 1998). MIXED Right to Use Voting Machines in General Elections Kingsley v. City and County of Denver, 126 Colo. 194, 247 R2d 805 (1952). Employment LOCAL/MUNICIPA4 Retirement of City Employees Coopersmith v. City and County of Denver, 156 Colo. 469, 399 R2d 943 (1965). Employee Residency City and County of Denver v. State of Colorado, 788 R2d 764 (Colo. 1990) Tenure of Firemen with Respect to Mandatory Retirement Age Coopersmith v. City and County of Denver, 156 Colo. 469, 399 R2d 943 (1965). Termination of City Clerk Pursuant to Procedures Set Forth in Charter Provision Ratcliff v. Kite, 36 Colo. App. 261, 541 R2d 88 (1975). Employment Qualifications and Training Requirements Fraternal Order of Police v. City and County of Denver, 926 R2d 582 (Colo. 1996). Employee Benefits Schaefer v. City and County of Denver, 973 P.2d 717 (Colo. App. 1998). STATEWIDE Restriction of Hours of Labor on Public Works Keefe v. People, 37 Colo. 317, 87 P. 791 (1906). Matters Covered by the Labor Peace Act City of Golden v. Ford, 141 Colo. 472, 384 R2d 951(1960). Entitlement of Home Rule Municipal Employee to Unemployment Compensation City of Colorado Springs v. Industrial Commission, 749 R2d 412 (Colo. 1988). Police and Fire Pensions Board of Trustees v. People, 119 Colo. 301, 203 R2d 490 (1949), overruled on other grounds by Police Pension and Relief Board v. McPhail, 139 Colo. 330, 338 R2d 694 (1959). Police Pension and Relief Board v. McPhail, 139 Colo. 330, 338 R2d 694 (1959). Home Rule Handbook 13 Huff v. Mayor of Colorado Springs, 182 Colo. 108, 512 R2d 632 (1973). City of Colorado Springs v. State of Colorado, 626 R2d 1122 (1981). Conrad v. City of Thornton, 191 Colo. 444, 553 R2d 822 (1976). Determination of Whether a Municipal Employee is Entitled to Unemployment Compensation City of Colorado Springs v. Industrial Commission, 749 R2d 412 (Colo. 1988). MIXED Certain Police Duties Police Protective Association v. Warren, 101 Colo. 586, 76 R2d 94 (1938). Charter Providing for Collective Bargaining and Compulsory Arbitration of Unresolved Disputes with Police Union Greeley Police Union v. City Council of Greeley, 191 Colo. 419, 553 R2d 790 (1976). Fire and Police Pension Fund Board of Trustees v. People, 119 Colo. 301, 203 R2d 490 (1949), overruled on other grounds by Police Pension and Relief Board v. McPhail, 139 Colo. 330, 338 R2d 694 (1959). Conrad v. City of Thomton, 191 Colo. 444, 553 R2d 822 (1976). Beer Liquor STATEWIDE Liquor Manufacture, Sale and Traffic Walker v. People, 55 Colo. 402, 135 P. 794 (1913). Big Top v. Schooley, 149 Colo. 116, 368 R2d 201 (1962). City of Colorado Springs v. Campbell, 99 Colo. 525, 63 R2d 1244 (1936). City and County of Denver v. People, 103 Colo. 565, 88 R2d 89 (1939). People v. City and County of Denver, 60 Colo. 370, 153 R 690 (1915). Regulation of Fermented Malt Beverages Kelly v. City of Fort Collins, 163 Colo. 520, 431 R2d 785 (Colo. 1967). Miscellaneous LOCAL /MUNICIPAL Impounding of and Charging Fee for Animals Running at Large City of Pueblo v. Kurtz, 66 Colo. 447, 182 P. 884 (1919). Procedures for Adopting Ordinances in a Home Rule Municipality Antes -Roy v. City of Aspen, 856 R2d 823 (Colo. App. 1993). Procedures for Appointment and Compensation of Municipal Court Judges Artes -Roy v. City of Aspen, 856 P.2d 823 (Colo. App. 1993). STATEWIDE Regulation of Automobiles by License Armstrong v. Johnson Storage and Moving Co., 84 Colo. 142, 268 R2d 978 (1928). Registration of Vaal Statistics People ex rel. Hershey v. McNichols, 91 Colo. 141, 13 R2d 266 (1932). Appeals from Municipal Courts of Home Rule Cities to State Courts City and County of Denver v. Bridwell, 122 Colo. 520, 224 R2d 217 (1950). MIXED Health Spears Free Clinic and Hospital v. State Board of Health, 122 Colo. 147, 220 R2d 872 (1950). Governmental Immunity for Tortious Acts of Municipal Officers Lipira v. City of Thornton, 41 Colo. App. 401, 585 R2d 932 (1978). DeLong v. City and County of Denver, 195 Colo. 27, 576 R2d 537 (1978). Indemnification of Police Officers for Exemplary Damage Awards Frick v. Abell, 198 Colo. 508, 602 P2d 852 (1979). Transit Construction Authority Created for Purposes of Establishing a Rapid Transit System (Repealed in 1989) Anema v. TCA, 788 P.2d 1261 (Colo. 1990). 14 Colorado Municipal League Chapter II Four Areas of Local Concern: Employment, Taxation, Land Use, and Eminent Domain I NTRODUCTION Under Article XX, section 6 of the Colorado Constitution, home rule municipalities have the power to regulate matters of local and municipal concern, confident that their regulations cannot be superseded by conflicting state laws. While some such matters are easily labeled, others are more complex, raising controversy over their classification as local, statewide or mixed. Employment, taxation, land use, and eminent domain are four areas in which home rule prerogatives have been commonly litigated through the years. Following is a discussion of home rule powers in these four areas. EMPLOYMENT The landmark case of Denver v. State stands as only one of many decisions that touch upon issues related to employment in home rule municipalities. Notwithstanding the fact that an employee may work for a home rule municipality, some employment matters are governed by state law. While fundamental employment issues related to qualifications, tenure, powers and duties of home rule municipal employees and officers are consistently found to be matters of local concern, certain aspects of compensation are subject to state laws of general applicability. Article XX, section 6 expressly grants to the people of a home rule municipality the author- ity to regulate the method of selection and tenure of an officer designated to carry out the duties of a specific position, even though the officer might be required to perform duties which are of statewide concern.' Therefore, a home rule charter provision relating to tenure does not interfere with any state statute, because power over tenure is expressly delegated to home rule cities. A charter provision for the termination of employees in a home rule munici- Home Rule Handbook L5 pality has also been found to take precedence over any statutory or common law rule to the contrary, as it too is solely a matter of local concern.' Section 6 grants home rule municipali- ties "exclusive control over creation and terms of municipal offices. Article XX, section 2 vests in a home rule city the exclusive control over public officers, their powers and duties.' Other sections of article XX make it clear that a city's power to determine the limits of their public officer's authority, by charter or amendment to their char- ter, is all exclusive On the other hand, the Colorado courts have acknowledged the distinction between basic home rule authority to determine whom to employ and under what circumstances, and statewide concern over certain aspects of compensation incidental to employment. For exam- ple, in City of Colorado Springs v. Industrial Commission, the court held that while the determi- nation of whether a city employee should be reinstated in a city job may be a matter of local concern, the determination of whether an employee is subject to unemployment compensa- tion is a matter of statewide concern.' Therefore, not every aspect of employment in home rule municipalities is immune from state regulation. Courts have found there to be an overriding state interest when reviewing conflicts between state law and local regulation in the areas of fire and police pensions,' unemployment compensation,' and workers compensation. These cases are consistent in that they dealt with a particular aspect of employment i.e. certain forms of compensation that are purely incidental to the employment relationship that is not specifically enumerated as a matter of local and municipal concern in Article XX, section 6 of the Colorado Constitution. In comparison, every reported case to date addressing authority of home rule municipalities to regulate other personnel matters has come down on the side of home rule authority. In addition to Denver v. State, confirming the authority of home rule municipalities to estab- lish residency requirements for their own employees without interference from the state, other recent decisions have simply underscored the essential home rule prerogative over employ- ment matters. For example, the Supreme Court held that employment qualifications for cer- tain law enforcement personnel in a home rule municipality are matters of local concern, and a city could establish training requirements different from those set forth in statute. The Court of Appeals held that employee health benefits in general and "the power to grant health insurance benefits to spousal equivalents" in particular are matters of local concern, and home rule municipalities need not rely on state statutes for authority to offer group health insurance policies. TAXATION The adoption of the TABOR amendment in 1992 imposed uniform tax and spending lim- its on all local governments, including home rule municipalities. Prior to TABOR, home rule municipalities exercised considerable latitude to formulate their own tax structure. For exam- ple, they could impose real estate transfer taxes; however, TABOR now bans new real estate transfer taxes. Nevertheless, even in the post-TABOR era, home rule municipalities may still exercise broader taxing authority than do statutory municipalities. In 1965, the Colorado Supreme Court upheld the authority of a home rule municipality to adopt a sales and use tax under the home rule taxing power conferred by Article XX of the Colorado Constitution.' As a result, home rule municipalities have broad sales and use tax authority. Under state law, a seven percent, or in some instances eight percent maximum applies to the total state, county and municipal sales tax imposed in any locality. However, this statutory maximum limitation on sales taxes does not appear to apply to home rule munic- ipalities. 16 Colorado Municipal League Among the advantages of levying a sales tax under home rule powers rather than pursuant to the state statutes are: (1) the sales tax base need not be uniform with the state sales tax (numerous home rule municipalities have a broader tax base or fewer exemptions); and (2) collection by the state Department of Revenue is optional (many home rule municipalities collect their sales taxes locally and have more extensive tax enforcement programs). Additionally, home rule municipalities are not limited to imposing use taxes only on motor vehicles and building and construction materials; consequently, many apply their use tax as broadly as their sales tax. Statutory municipalities are authorized but not required to exempt from the municipal sales tax (1) sales of certain machinery and machine tools; (2) sales of electricity and other specific fuels sold to occupants or residents for the purpose of operating residential fixtures and appli- ances which provide light, heat, and power for the residences; and (3) certain occasional sales by non -profit entities. Home rule municipalities on the other hand, pursuant to Article XX, may determine their own exemptions." In Winslow Construction v. City and County of Denver, the Colorado Supreme Court held that section 29 -2- 109(2) of the Colorado Revised Statutes cannot be applied to curtail applica- tion of a home rule city's use tax. Section 29- 2- 109(2) exempts from local taxation the use of personal property which occurs more than three years after its most recent sale, if the proper- ty was significantly used in the state within those three years. Denver's municipal code required payment of a use tax, with no such time limitations. The court found that the code provision dealt with a matter of local concern, and therefore preempted the conflicting state statute. Although the power to levy and collect sales and use taxes is a matter of purely local and municipal concern under Article XX of the Colorado Constitution, constitutional limits min- imize the ability of a home rule city to impose certain tax liabilities, such as a use tax on a busi- ness that delivers merchandise to residents in a city but that does not maintain a store or office in the city and does not solicit business from city residents. In addition, while home rule municipalities may determine their own administrative procedures relative to sales and use tax collection, certain matters relating to appeals to the courts are of statewide concern and thus are subject to state statutes or court rules. Home rule municipalities enjoy broad authority to impose so- called "occupation taxes" on business activities. Like statutory municipalities, home rule cities and towns can draw upon the broad authority set forth in statute "to license, regulate, and tax any and all lawful occupa- tions and places of business. However, the authority to impose an occupation tax in a home rule municipality can also be derived from the municipality's own charter, as illustrated in the cases upholding the authority to impose a "head tax" on employees of businesses operating within the municipality. Home rule status also gives a municipality the flexibility to creatively structure other types of taxes and fees, even in the absence of statutory enabling authority. Examples of home rule revenue measures upheld by the courts include: an excise tax on new development charged on a per square foot basis, a transportation impact fee, and stormwa- ter utility charges. In the area of property taxation, home rule municipalities again enjoy greater flexibility in that they are not constrained by the statutory limit on annual increases in property tax rev enue. However, the charters of some home rule municipalities contain property tax limita- tions similar to the statute, if not more restrictive. Moreover, although home rule municipali- ties are expressly authorized by Article XX to engage in "the assessment of property in such city or town for municipal taxation and the levy and collection of taxes thereon for municipal Home Rule Handbook 17 purposes, this authority is apparently subject to overriding constitutional principles requir- ing uniformity and equalization of property taxation. Thus, home rule municipalities work directly with the property tax assessment and collection system administered by the county assessor and county treasurer as would any other local government. Even prior to the adoption of TABOR, the authority of home rule municipalities to estab- lish taxes was not absolute. In particular, the courts had held that the imposition of income taxes (e.g. a tax upon a business based directly on the gross receipts of the business) was the exclusive prerogative of the state under Article X, section 17 of the Colorado Constitution. TABOR reconfirmed this prohibition against local government income taxes. LAND USE In the 1920s, the very earliest court cases in Colorado ratifying zoning as a legitimate use of the police power arose out of the state's original home rule municipality, Denver. Significantly, the city had adopted land use regulations before there was any state enabling legislation for zoning and subdivision regulation by local governments. The court was content in finding, however, that the power to engage in this sort of regulation derived from Denver's own charter and was not dependent on some grant of permission by the General Assembly. Naturally, in exercising its zoning authority, Denver was bound by higher constitutional principles relating to due process and property rights. Even from these very earliest cases, claims were made based upon theories of "vested rights" and "taking of property without just compensation." However, while the mandates of the constitution are one thing that no home rule municipality can deny, the mandates of the Colorado General Assembly as expressed through state statutes are quite another. The Colorado courts recognized this fact in the early 1970's and began to hand down numerous decisions indicating that zoning will generally be considered a matter of local concern and that statutory procedures related to zoning will not apply in a home rule municipality to the extent those procedures are contradicted by local law. Two cases decided in 1971 dealt directly with conflicts between statutory requirements and local procedures. In both, property owners claimed that local zoning actions should be invali- dated due to the home rule city's failure to follow the statutory procedure. In one case, the city had failed to use a statutorily mandated super majority vote to approve a rezoning. In the other, the city had not abided by a statutory requirement that rezonings be done in accor- dance with a comprehensive plan 34 In each case, the court held that home rule cities could apply their own locally adopted procedures in lieu of the statutory requirements, and failure to comply with the mandates of state enabling statutes was not fatal to the cities' respective zoning actions. In another important case decided about the same time, the Colorado Supreme Court made this powerful statement: "The General Assembly has power to legislate zoning regula- tions applicable to statutory cities. Where, however, the Charter of a home rule city exercises the power delegated to it by Article XX, Section 6 as to matters of purely local concern, the legislature has no power. On most occasions when the courts have held zoning within a home rule municipality to be a matter of local concern, they have done so not in order to resolve disputes between local ordinances and state statutes but to simply underscore that the court need look no further than the municipality's own charter as the source of authority for whatever the city or town has done. In this line of cases, the term "zoning" is construed quite broadly to include a wide variety of land use regulations, including restriction or elimination of nonconforming uses, access permitting, development permitting, hillside preservation regulations, sign codes, and basic zone district regulations. 18 Colorado Municipal League Even in cases where the courts have held certain specialized areas to be a matter of "mixed statewide and local concern," the courts have not disturbed the well established principle that zoning will generally be considered within the province of local legislative discretion. For example, the Colorado Supreme Court has partially allowed the General Assembly to occupy the field of sign regulation along state highways within municipalities only because there is proven, substantial state interest in this area. Namely, due to certain requirements of the Federal Highway Beautification Act and contracts entered into between the state and the fed- eral governments, the state needed to ensure a certain degree of uniformity in the regulation of billboards upon federal aid highways at the risk of losing federal highway funds. Similarly, in the narrow area of oil and gas drilling that is, regulation of a resource that recognizes no jurisdictional boundaries and has been regulated at the state level since 1915 the court held that the state could preempt a home rule ordinance, at least to the extent that the ordinance purported to totally prohibit such drilling within a particular municipality. In carving out these two narrow exceptions to the rule that zoning and land, use will generally be considered a matter of local concern, the court focused extensively on peculiar aspects of the particular activities being regulated in each case. The Colorado General Assembly regularly debates and sometimes adopts legislation to pre- empt home rule municipalities in the area of land use regulation, growth management, and private property rights. In one example, the General Assembly in 1975 adopted special zoning protections for group homes for the developmentally disabled, and purported to apply the statutory mandate statewide. The Colorado Supreme Court twice flirted with the question of whether this mandate could truly bind home rule municipalities but ultimately decided these cases on other grounds.* On a subject closely related to land use regulation, the Colorado Court of Appeals agreed with the General Assembly that the control of rentals charged on residential property was a matter of statewide concern!' The court enforced a statute adopted by the state in 1981 pre- empting the field of "rent control," and struck down an affordable housing set aside require- ment contained in a municipal development code. In a more recent example of usurpation of home rule authority, the General Assembly adopted the Vested Property Rights Act in 1987 and thereby purported to compel all munici- palities to establish a procedure for allowing developers to obtain a three -year vested right upon the approval of a "site specific development plan." Even while adopting local ordinances to implement the act, a number of home rule municipalities expressed doubt about whether or not the mandates of this law could legitimately be applied to them. The Vested Property Rights Act was amended in 1999, carrying forward the declaration of statewide concern con- tained in the original bill. At the same time, the General Assembly adopted another piece of property rights legislation declaring that, "the fair, consistent, and expeditious adjudication of disputes over land use in state courts in accordance with constitutional standards is a matter of statewide concern. To date, the applicability of these laws to home rule municipalities has never been tested in court. Once again, home rule in the land use area is not absolute. Courts will analyze the question of "local" versus "statewide" concern on a case by case basis applying the Denver v. State crite- ria. Especially when a municipality is acting beyond its own boundaries, its home rule authori- ty (including the power to regulate the use of its own property) can and will be circumscribed by state statutes!' Moreover, home rule does not confer upon municipalities any particular standing to challenge the land use regulations of another political subdivision of the states° Home Rule Handbook Similarly, no home rule municipality has ever defied the principle that state annexation statutes must apply equally to all cities and towns regardless of home rule status. Nevertheless, when a home rule municipality administers zoning and land us regulation within its own jurisdiction, the great weight of tradition and legal precedent indicates that the courts will view this as being a matter of local concern to be addressed as the municipality sees fit. EMINENT DOMAIN For many years, on a variety of occasions, and in a variety of contexts, the Colorado courts have held that the eminent domain powers of home rule municipalities are derived directly from the constitution and are therefore immune from whatever strictures or prohibitions the General Assembly may try to impose through statute. Section 1 of Article XX of the Colorado Constitution (which is incorporated by reference in section 6 of that article, and thus made applicable to all home rule municipalities) afforded the prototype home rule municipality, Denver, a broad grant of eminent domain authority, including: [T]he power, within or without its territorial limits, to condemn water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways, local in use and extent, in whole or in part, and everything required therefore [and] may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain By judicial construction, the breadth of this constitutional grant of authority has been expanded even further than its express terms might indicate. In 1940 the court stated, "we have no doubt that the people of Colorado intended to and, in effect did, thereby delegate to Denver full power to exercise the right of eminent domain in the effectuation of any lawful, public, local and municipal purpose. Nineteen years later, the court re- enforced this opin- ion, holding that "the powers enumerated therein are by way of illustration and not of limita- tion." A particular exercise of eminent domain by a home rule municipality therefore is not invalid due to the fact that it is for a purpose other than one of those specifically enumerated in Article XX, whether it be an Air Corps Technical School," "flowage easements, a sewer line, an airport, or water and water rights, to name a few. Home rule municipalities also have full and complete authority to condemn lands for "parks and parkways and for recre- ational trails, and to freely exercise eminent domain authority on an extraterritorial basis without regard to any statutory limitation on the distance the city may go in taking property for a municipal purpose. Unlike statutory cities and towns which derive virtually any eminent domain powers they may have from enabling statutes adopted by the General Assembly, home rule municipalities need only look to Article XX and their own charters. The courts have articulated the principal that condemnation "can be had only under powers specifically granted by the legislature," but have applied this principle exclusively to statutory cities and towns.fi As a result, any limitation on the scope of eminent domain authority on a home rule municipality must be found in the city's own charter or in the constitution, and Colorado home rule charters typically contain a broad reservation of any and all eminent domain powers that a municipality may possibly exercise. 20 Colorado Municipal League The general principle that state statutes are superseded by home rule eminent domain authority has been demonstrated in several different contexts. The Colorado Supreme Court has found not applicable to home rule municipalities a statutory limitation on the purposes for which eminent domain may be utilized, and a statutory limitation on the distance that a city could condemn outside its boundaries. A statute requiring a city to obtain the permission of another jurisdiction when condemning property extraterritorially is of "doubtful validity, and home rule municipalities are not bound to follow any particular statutory procedure when exercising their eminent domain authority, but instead are free to select any procedure that may be available by law. One notable limitation on the authority of home rule municipalities to exercise eminent domain was illustrated in a case where a town tried to condemn state -owned lands to conduct a feasibility study for a municipal water storage project. The court held that the general grant of eminent domain authority in Article XX does not give home rule municipalities the power to condemn state lands. ENDNOTES 1. City and County of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548, 551 (1961). 2. Coopersmith v. City and County of Denver, 156 Colo. 469, 477, 399 P.2d 943 (1965). 3. Ratcliff v. Hite, 36 Colo. App. 261, 541 P.2d 88, 90 (1975) 4. International Brotherhood of Police Officers v. City and County of Denver, 185 Colo. 50, 521 P.2d 916, 917 (1974). Note, however, that the ability of home rule municipalities to control the "terms" of elected officers was superseded by the 1994 adoption of a constitutional amendment providing uni- form term limitation for all local elected officials including those in home rule municipalities. Colo. Const. art. XVIII, 11. 5. Id. at 917. 6. Id. at 917. 7. City of Colorado Springs v. Industrial Commission, 749 P.2d 412, 416 (1988). 8. See City of Colorado Springs v. State of Colorado, 626 P.2d 1122 (Colo. 1981); Conrad v. City of Thornton, 191 Colo. 444, 553 P.2d 822 (1976); Huff v. Mayor of Colorado Springs, 182 Colo. 108, 512 P.2d 632 (1973); Police Pension and Review Board v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959); Board of Trustees v. People, 119 Colo. 301, 203 P.2d 490 (1949). 9. See City of Colorado Springs v. Industrial Commission, 749 P.2d 412 (Colo. 1988). 10. See City and County of Denver v. Thomas, 176 Colo. 483, 491 P.2d 573 (1973). 11. Fraternal Order of Police v. City and County of Denver, 926 P.2d 582 (Colo. 1996). 12. Schaefer v. City and County of Denver, 973 P.2d 717 (Colo. App. 1998). 13. Colo. Const. art X, 20. 14. Colo. Const. art. X, 20(8)(a). 15. Berman v. Denver, 156 Colo. 583, 400 P.2d 434 (1965). 16. C.R.S. 29 -2 -108. 17. C.R.S. 29 -2 -105. 18. Winslow Construction Co. v. City and County of Denver, 960 P.2d 685 (1998). 19. Security Life and Accident Company v. Temple, 197 Colo. 491, 593 P.2d 1375 (1979) (reaffirming the decision in Berman v. Denver, 177 Colo. 14, 492 P.2d 63 (1972)). 20. Associated Dry Goods v. City of Arvada, 197 Colo. 491, 593 P.2d 1375 (1979) 21. See Gold Star Sausage Co. v. Kempf, 653 P.2d 397 (Colo. 1982); Sky Chefs v. Denver, 653 P.2d 402 Home Rule Handbook 21 (Colo. 1982); Walgreen Co. v. Chames, 819 P.2d 1039 (Colo. 1991); Winslow Construction Company v. City and County of Denver, 960 P.2d 685 (1998). 22. C.R.S. 31- 15- 501(1)(c). 23. Denver v. Duffy Storage Moving Co., 168 Colo. 91, 450 P.2d 339 (1969). 24. Cherry Hills Farm, Inc. v. City of Cherry Hills Village, 670 P.2d 779 (Colo. 1983). 25. Bloom v. Fort Collins, 784 P.2d 304 (Colo. 1989). 26. Zelinger v. City and County of Denver, 724 P.2d 1356 (Colo. 1986); City of Littleton v. State of Colorado, 855 P.2d 448 (Colo. 1993). 27. C.R.S. 29 -1 -301. 28. Colo. Const. art. XX, 6(g). 29. Colo. Const. art. X, 3; See also Rancho Colorado Inc. v. City of Broomfield, 196 Colo. 444, 586 P.2d 659 (1978); Cherry Hills Farm Inc. v. City of Cherry Hills Village, 670 P.2d 779 (Colo. 1983). 30. Denver v. Sweet, 138 Colo. 41, 329 P.2d 441 (1958); Minturn v. Foster Lumber Co., 190 Colo. 470, 548 P.2d 1276 (1976); Mountain States Telephone and Telegraph Co. v. City of Colorado Springs, 194 Colo. 404, 572 P.2d 834 (1977). 31. Colo. Const. art. X, 20(8)(a). 32. Colby v. Board of Adjustment, 81 Colo. 344, 255 P. 443 (1927); Averch v. City and County of Denver, 78 Colo. 246, 242 P. 47 (1925). 33. Roosevelt v. City of Englewood, 176 Colo. 576, 492 P.2d 65 (1971). 34. Moore v. City of Boulder, 29 Colo. App. 248, 484 P.2d 134 (1971). 35. Service Oil Co. v. Rhodus, 179 Colo. 335, 500 P.2d 807, 812 (1972) (emphasis in original). 36. City of Greeley v. Ells, 186 Colo. 352, 527 P.2d 538 (1974); Service Oil Co. v. Rhodus, 179 Colo. 335, 500 P.2d 807, 812 (1972). 37. City of Colorado Springs v. Smartt, 620 P.2d 1060 (Colo. 1981). 38. Sherman v. City of Colorado Springs, 680 P.2d 1302 (Colo. App. 1983). 39. Sefton v. City of Manitou Springs, 745 P.2d 229 (Colo. 1987). 40. VFW v City of Steamboat Springs, 195 Colo. 44, 575 P.2d 835 (1978). 41. Zavala v. City and County of Denver, 759 P.2d 664 (Colo. 1988). 42. City of Fort Collins v. Root Outdoor Advertising, 788 P.2d 149 (Colo. 1990); National Advertising v. Dep't of Highways, 751 P.2d 632 (Colo. 1988). 43. Voss v. Lundvall Brothers, Inc., 830 P.2d 1061 (Colo. 1992). 44. C.R.S. 31 -23- 303(3). 45. Glennon Heights, Inc. v. Central Bank and Trust, 658 P.2d 872 (Colo. 1983); Adams County Ass'n for Retarded Citizens, Inc. v. City of Westminster, 196 Colo. 79, 580 P.2d 1246 (1978). 46. Lot Thirty -Four Venture v. Town of Telluride, 976 P.2d 303 (Colo. App. 1998), cert. granted (1999). 47. C.R.S. 24 -68 -101 to 106. 48. C.R.S. 29 -20 -201, et seq. 49. City and County of Denver v. Board of County Commissioners of Grand County, 782 P.2d 753 (Colo. 1989). 50. City of Colorado Springs v. Board of County Commissioners of Eagle County, 895 P.2d 1105 (Colo. App. 1994). 51. Colo. Const. art. XX, 1. 52. Fishel v. City and County of Denver, 106 Colo. 576, 583,108 P.2d 236 (1940); Toll v. City and County of Denver, 139 Colo. 462, 340 P.2d 862 (1959). 22 Colorado Municipal League 53. Town of Glendale v. City and County of Denver, 137 Colo. 188, 194, 322 P.2d 1053 (1958). 54. Fishel v. City and County of Denver, 106 Colo. 576, 108 P.2d 236 (1940) 55. Toll v. City and County of Denver, 139 Colo. 462, 340 P.2d 862 (1959). 56. Town of Glendale v. City and County of Denver, 137 Colo. 188, 322 P.2d 1053 (1958). 57. City and County of Denver v. Board of County Commissioners of Arapahoe County, 113 Colo. 150, 156 P.2d 101 (1945). 58. City of Thornton v. Farmers Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978). 59. Londoner v. City and County of Denver, 52 Colo. 15,119 P. 156 (1911). 60. Town of Parker v. Norton, 939 P.2d 535 (Colo. App. 1997). 61. City and County of Denver, v. Board of County Commissioners of Arapahoe County, 113 Colo. 150, 156 P.2d 101 (1945). 62. Note, however, that even statutory municipalities are deemed to enjoy independent constitution- al authority to exercise eminent domain for waterworks under Colo. Const. art. XIV, 7, a power that cannot be impaired by any statute. Town of Lyons v. City of Longmont, 54 Colo. 112, 129 P.198 (1913). 63. See Beth Medrosh Hagodol v. City of Aurora, 126 Colo. 267, 248 P.2d 732 (1952). See also Healy v. City of Delta, 59 Colo: 124,147 P. 662 (1915); Mack v. Town of Craig, 68 Colo. 337, 191 P. 101 (1920); Public Service Co. v. Loveland, 79 Colo. 216, 245 P. 493 (1923). 64. See Fishel v. City and County of Denver, 106 Colo. 576,108 P.2d 236 (1940). See also City of Thornton v. Fanners Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382, 389 (1978). 65. City of Thornton v. Fanners Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382, 389 (1978). 66. City and County of Denver v. Board of County Commissioners of Arapahoe County, 113 Colo. 150, 156 P.2d 101 (1945). 67. Town of Glendale v. City and County of Denver, 137 Colo. 188, 322 P.2d 1053 (1958). 68. City of Thornton v. Fanners Reservoir and Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978); Toll v. City and County of Denver, 139 Colo. 462, 340 P.2d 862 (1959); City of Englewood v. Weist, 184 Colo. 325, 520 P.2d 120 (1974). 69. Town of Parker v. Colorado Division of Parks and Outdoor Recreation, 860 P.2d 584 (Colo. App. 1993). Home Rule Handbook 23 Chapter III Municipal Home Rule Act of 1971 INTRODUCTION Every municipality wishing to adopt, amend, or repeal a home rule charter, adopt a new home rule charter, or adopt a home rule charter at the time of incorporation, must comply with the requirements of the Municipal Home Rule Act of 1971, C.R.S. 31 -2 -201, et seq. (the "Act"). Prior to the addition of Section 9 to Article XX of the Constitution and prior to the adop- tion of the Act, the procedures for adopting and amending a home rule charter could be found in Sections 4 and 5 of Article XX. However, subsection (3) of Section 9 states that the various provisions in Article XX "as they related to procedures for the initial adoption of home rule charters and for the amendment of existing home rule charters, shall continue to apply until superseded by statute." (Emphasis added.) Adoption of the Act thus superseded the pro- cedural requirements for adopting and amending home rule charters previously found in Sections 4 and 5 of Article XX. There are certain procedures required in Sections 4 and 5 which are not required or even mentioned in the Act (such as, for instance, the requirement that officers and members of the convention sign the charter prior to the charter's submission, and the requirement that votes for and against a charter or charter amendment be certified to the secretary of state). While one might argue that the Act superseded only conflicting procedural requirements found in Sections 4 and 5, the better view would be to look upon the Act as a complete document which does, and was intended to, contain the complete procedural requirements for charter adoption and amendment. This is not to say, however, that Section 9 and the Act supersede any requirements con- tained in other sections of Article XX relating to the contents of home rule charters. The wording of Section 9 states only that the procedures found in other sections of Article XX would be superseded.' The following is a general summary of the basic procedural requirements found in the Act. Because this information is only a summary of the language of the Act, it should not be used as a substitute for the Act itself. Home Rule Handbook 25 GENERAL PROVISIONS Election Requirements 1. Procedures. Except as otherwise provided in the Act, every election held pursuant to the Act must be conducted, as closely as possible, in accordance with the requirements of the Municipal Election Code of 1965, Article 10 of Title 31, C.R.S. Election Code One question raised by this requirement is whether an existing home rule municipality which has its own election procedures can follow those procedures rather than the Election Code procedures. That question might arise, for instance, in proceedings to amend or repeal an existing charter. Although the Act does not answer this question, it would seem that the election procedures of the home rule municipality could be followed since 31- 2- 211(1) provides that elections will be conducted in conformity with the provi- sions of the Election Code. The Election Code provides that home rule municipalities are not required to follow the procedures outlined in the Code except those parts of the Code adopted by the municipality.' 2. Expenses. The Act requires that the municipality pay the expenses of any elections 3. Special Elections. Every election required by the Act must be held within certain specific time periods. If a regular election is scheduled within the time period required by the Act, then the home rule election may be held at the time of the regular election. If no regular election is scheduled within the required time period, a special election on home rule must be called.' 4. Publication. Wherever the term "publication" is used in the Act, it means one publication in one newspaper of general circulation in the municipality. If there is no newspaper of general circulation, then publication shall be by posting in at least three public places within the municipality. Conflicting or Alternative Proposals Any alternative provision or provisions may be submitted and voted on separately when a charter or charter amendment is submitted to the voters. The alternative provision receiving the highest number of votes, if approved by a majority of the votes of the registered electors voting, shall be deemed approved.' If conflicting provisions are adopted which are not submit- ted as alternatives, the provision which receives the greatest number of affirmative votes shall prevail in all particulars as to which there is conflict.' Change in Classification of a Municipality The Act establishes a simplified procedure for reclassifying a town with a population greater than 2,000 as a city, or a city with a population of 2,000 or less as a town, by allowing the town or city to simply reclassify itself upon adoption of its home rule charter. If the town or city reclassifies itself by adoption of a charter, it need not comply with the more detailed procedures for reclassification found in part 2 of article 1 of title 31. Time Limits on Similar Proposals If voters reject a proposal for a charter commission, charter amendment, or repeal of a charter, no substantially similar proposal may be initiated within 12 months after the rejection. 26 Colorado Municipal League Fling If voters approve a charter, charter amendment, or charter repeal, a certified copy of the approved measure must be filed with the secretary of state and the municipal clerk within 20 days after voter approval of the measure. Finality of Elections No proceeding to contest the adoption of a charter, charter amendment, or charter repeal may be brought unless it is commenced within 45 days after the election adopting the mea- sure. Initiative, Referendum, and Recall Every charter must contain procedures for initiative and referendum and for the recall of municipal officers. These requirements raise questions concerning a municipality's ability to deny the exercise of initiative and referendum powers on certain types of municipal ordi- nances. Article V, Section 1 (9) of the Colorado Constitution states that: The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and muni- cipality 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. Not more than ten percent of the registered electors may be required to order the referendum, nor more than fifteen percent to propose any measure by the initiative in any city, town, or municipality. (Emphasis added.) An emergency ordinance adopted by a municipality is not subject to referendum. And, the constitutional reservation of the referendum power applies only to acts which are "legislative" in character, not to acts which are "administrative" in character. A home rule charter may, however, provide that all ordinances are subject to a referendum. It is not clear whether a home rule charter may prohibit a referendum on any types of ordi- nances other than emergency or administrative ordinances, although many home rule charters do contain additional prohibitions. It should be noted that Article V, Section 1 specifically grants municipalities the right to establish only the "manner of exercising" initiative and refer- endum powers as to municipal legislation. Special requirements exist, in Article XX, Section 4 of the Colorado Constitution, for the initiative and referendum as applied to franchises. Any recall provision in the charter must be limited to procedural matters and substantive provisions not in conflict with the Colorado Constitution. The charter commission should obtain legal advice particularly when drafting the initiative, referendum, and recall sections of the charter. Vested Rights No charter, charter amendment, or charter repeal measure approved by a municipality may destroy or affect rights vested in or against the municipality prior to the adoption of the par- ticular measure. Home Rule Handbook 27 PROCEDURES FOR ADOPTING A HOME RULE CHARTER Initiation Home rule may be initiated by submission to the governing body of a petition signed by not less than five percent of the registered electors of the municipality to the governing body, or by ordinance of the governing body. Election on Forming the Charter Commission and on Commission Members 1. Call. Within 30 days after initiation, the governing body must call an election on the ques- tion of whether a charter commission shall be formed, and for the purpose of electing members to the charter commission. 2. Time of Election. The commission election must be held within 120 days after the call of the election. 3. District or At -Large Representation. The petition or ordinance initiating home rule may specify that commission members are to be elected from districts or from a combination of districts and at- large. If the petition or ordinance requires some type of district elec- tion, the governing body must divide the municipality into compact districts of approxi- mately equal population before publishing the first notice of the commission election 2 Any determination of population for the purpose of establishing districts must be made on the best readily available information. Acceptable sources of population information would probably include the latest United States Census Reports and Office of State Planning and Budgeting estimates. 4. First Notice. Notice of the election must be published by the governing body at least 60 days prior to the election. 5. Candidates for the Commission. Candidates for the charter commission must be nominat- ed by petition (on forms supplied by the municipal clerk) signed by at least 25 registered electors of the municipality. The nomination must be filed with the municipal clerk with- in 30 days after publication of the first election notice and must be accompanied by a statement from the nominated candidate of his or her consent to serve if elected2 If the petition or ordinance initiating home rule provides for the election of some charter commission members by districts, the question may arise whether the petition nominat- ing a commission member to represent a district must be signed only by electors residing in that district. This question is not directly answered in the Act. However, 31- 2- 211(1) requires that, except as otherwise provided, every election held pursuant to the Act should be conducted, as closely as possible, in accordance with the requirements of the Election Code. The Election Code provides, in 31 -10 -302, that where a candidate for the municipal governing body is to be elected from a ward, electors residing in the candi- date's ward shall sign the nomination petition. While this requirement might not be specifically applicable to the nomination of commission members, the better view might be to require petitions for commission candidates to be signed by electors residing within the candidate's district. 6. Second Notice. As soon as possible after the filing of the nomination petitions and the consent to serve statements, the governing body must publish a second notice of the elec- tion including the names of the candidates for the charter commission. Colorado Municipal League 7. Election Results. At the election, voters cast ballots for or against forming the charter commission and to elect the commission members. A majority of the registered electors voting is required to approve the formation of a charter commission. If voters approve the formation of the commission, those candidates receiving the high- est number of votes are elected as members of the commission. If there are tie votes for the last available vacancy on the commission, the municipal clerk decides, by lot, who shall be elected. Charter Commission 1. Number of Members. The number of commission members is determined by the popula- tion of the municipality as follows: population of less than 2,000, nine members; popula- tion of at least 2,000, nine members unless the initiating ordinance or petition establishes a higher odd number of members not to exceed 21 members. 2. District or At -Large Representation. As discussed previously, the petitions or ordinance ini- tiating home rule may require district representation or a combination of district and at- large representation. If the petition or ordinance initiating home rule is silent on how commission members shall be elected, all members will be elected at- large. 3. Qualifications of Commission Members. Any registered elector of the municipality is eligi- ble to serve on the commission. 4. Compensation of Commission Members. Commission members receive no compensation but may be reimbursed for actual and necessary expenses incurred in the performance of their duties. 5. Vacancies on the Commission. The governing body of the municipality fills, by appoint- ment, any vacancy on the commission. 6. Organization of the Commission. The governing body calls the first meeting of the com- mission within 20 days after the election of the commission. Because the commission has a limited time in which to work (120 days), and because that time begins running from the date of the commission election, the governing body should call the first meet- ing of the commission as soon as possible after the election. Further meetings of the commission are called either by the chairperson of the commis- sion or by a majority of the members of the commission. All meetings of the commission must be open to the public 35 At the first meeting, the commission is required to elect a chairperson and a secretary from among its members and may elect any other officers as it feels necessary from among its members. In addition, the commission may adopt its own rules of procedure. A quorum of the commission consists of a majority of the commission members. 7. Powers of the Commission. The commission has the power to employ a staff; consult and retain experts; purchase, lease, or otherwise obtain necessary supplies, materials, and equipment; accept funds, grants, gifts, and services from any public or private source; conduct interviews; and make investigations. After completion of the commission's work and dissolution of the commission, the commission's property becomes the property of the municipality. 8. Expenses of the Commission. The municipality pays the reasonable expenses of the com- mission, upon written verification of the expenses by the chairperson and secretary of the Home Rule Handbook 29 commission. The governing body of the municipality must enact any supplemental appro- priation ordinances as necessary to cover the commission's expenses. 9. Duties of the Commission. The commission must hold at least one public hearing while preparing the charter, must submit a proposed charter to the governing body within 120 days after the commission election, and must prepare and submit a revised proposed charter if the proposed charter is rejected by the voters. Election on the Charter 1. Call and Publication. Within 30 days after the date on which the commission submits the proposed charter to the governing body, the governing body must publish notice of and call an election on the proposed charter. The notice must contain the full text of the pro- posed charter. 2. Time of Election. The election on the proposed charter must be held not less than 30 days nor more than 120 days after publication of the notice of the election.'" 3. Ballot Requirements. Ballot requirements are discussed on page under `Ballot Requirements." 4. Election Results. A charter is adopted if a majority of the registered electors voting approve the charter, and the approved charter takes effect at the time established in the charter. If electors reject the proposed charter, the charter commission must prepare a revised proposed charter in the same general manner as it prepared the proposed charter, and the governing body must submit the revised proposed charter to an election in the same manner as the original proposed charter. If voters reject the revised proposed charter, then the charter commission is dissolved .a PROCEDURES FOR AMENDING A HOME RULE CHARTER Initiation Amendments to existing home rule charters may be initiated by a petition signed by regis- tered municipal electors, or by ordinance adopted by the governing body. Petition Requirements The following requirements pertain to a charter amendment initiated by petition: 1. Commencement. The petition process is commenced by filing with the municipal clerk a statement of intent to circulate a petition. The statement must be signed by at least five registered electors of the municipality. 2. Circulation and Filing. The petition is circulated for a period not to exceed 90 days from the date of the filing of the statement of intent. The petition must be filed with the municipal clerk before the close of business on the 90th day, or on the next business day if the 90th day falls on a Saturday, Sunday, or legal holiday. 3. Form and Contents. The petition must contain the text of the proposed amendment and must state whether the proposed amendment is sought to be submitted at the next regu- lar election or at a special election. If the petition seeks to submit the proposed amend- ment at a special election, the petition must state an approximate date for the election 4 The petition must also meet the additional requirements set forth in 31 -2 -220 through 30 Colorado Municipal League 225; those additional requirements are summarized on page under `Additional Petition Requirements." 4. Number of Signatures. If the petition seeks to submit an amendment at the next regular election, at least five percent of the electors of the municipality who are registered on the date of filing of the statement of intent must sign the petition. If the petition seeks to submit an amendment at a special election, at least 10 percent of the electors of the municipality registered on the date of filing the statement of intent must sign the peti- tion. 5. Date of Filing. If the petition seeks to submit an amendment at the next regular election, it must be filed with the municipal clerk at least 90 days prior to the date of the regular election. If the petition seeks to submit an amendment at a special election, it must be filed with the municipal clerk at least 90 days prior to the approximate special election date stated in the petition. 6. Certification by Municipal Clerk Within 15 working days after the filing of the petition, the municipal clerk must provide certification to the governing body as to the validity and sufficiency of the petition. Election on the Proposed Amendment 1. Notice and Call. Within 30 days after the adoption of the ordinance or the date of filing of the petition (assuming the clerk certifies the petition to be valid and sufficient), the gov- erning body must call and publish notice of an election on the proposed amendment. The notice must contain the full text of the proposed amendment 52 2. Ballot requirements. Ballot requirements are discussed on page under `Ballot Requirements." 3. Time of Election. The election on the amendment must be held not less than 30 days nor more than 120 days after publication of the notice of election. If the amendment was ini- tiated by petition and is sought to be submitted at a special election, the election must be held as near as possible to the approximate date stated in the petition, subject to the foregoing time requirements. 4. Election Results. An amendment is deemed approved if a majority of the registered elec- tors voting approve the proposed amendment. PROCEDURES FOR REPEALING A HOME RULE CHARTER Initiation Action to repeal a charter may be initiated by petition, or by a two- thirds vote of the gov- erning body adopting an ordinance to submit the proposed repeal to a vote of the registered electors of the municipality. Petition Requirements The requirements for commencement, circulation, filing, and contents of the petition are similar to those applicable to a petition to amend a charter, except that: a. The petition must state the proposal to repeal the charter; and b. The petition must be signed by at least 15 percent of the registered municipal electors, whether the petition seeks submission of the proposal at a regular elec- tion or at a special election. Home Rule Handbook 31 Election on the Proposed Repeal 1. Notice and Call. Within 30 days after initiation, the governing body must call and publish notice of an election on the proposed repeal. The notice must contain a statement of the proposal as contained in the ordinance or the petition. 2. Ballot Requirements. Ballot requirements are discussed on page 35 under "Ballot Requirements." 3. Time of Election. The election must be held not less than 30 nor more than 120 days after publication of the notice of election. If the proposed repeal was initiated by petition and is sought to be submitted at a special election, the election must be held as near as possi- ble to the approximate date stated in the petition, subject to the foregoing time re- quirements. 4. Election Results. A charter is repealed when a majority of the registered electors voting approve the repeal. If the charter is repealed, the municipality must then begin to orga- nize and operate in accordance with the statutes applicable to a municipality of its size. PROCEDURES FOR HOME RULE MUNICIPALITIES TO ADOPT A NEW CHARTER When extensive revision of a charter is desired, or where an entire change in the plan of government is proposed (such as from mayor council to council- manager), a new charter com- mission might be preferable to a charter amendment. Initiation Action to form a new charter commission may be initiated by petition, or by the governing body adopting, by a 2/3 vote of its members, an ordinance submitting the proposed formation of a new charter commission to a vote of the registered electors of the municipality. Petition Requirements The requirements for commencement, circulation, filing, and contents of the petition are similar to those applicable to a petition to amend a charter, except that: a. The petition must state the proposal to form a new charter commission; b. The petition must be signed by at least 15 percent of the registered munici- pal electors, whether the petition seeks submission of the proposal at a regular election or at a special election; and c. The petition must be filed with the municipal clerk at least 90 days prior to the date of the regular election or the approximate date stated in the petition for a special election, as the case may be. Election on the Proposed Formation of a New Charter Commission 1. Notice and Call. Within 30 days after initiation, the governing body must call and publish notice of an election on the proposal. The notice must contain a statement of the propos- al as contained in the ordinance or the petition. 2. Ballot Requirements. Ballot requirements are discussed on page 35 under "Ballot Requirements." 3. Time of Election. The election must be held not less than 60 days nor more than 120 days after publication of the notice of election. If the proposal was initiated by petition and is sought to be submitted at a special election, the election must be held as near as possible 32 Colorado Municipal League to the approximate date stated in the petition, subject to the foregoing time require- ments. 4. Procedures. The procedures for the forming and functioning of a new charter commission must comply as nearly as possible with the procedures for the forming and functioning of an initial charter commission. This means that the time and method requirements for nominating candidates to the initial charter commission should be followed, as should other procedures contained within 31 -2 -204 through 31 -2 -207. ADDITIONAL PETITION REQUIREMENTS The following petition requirements, in addition to other applicable requirements, apply to any petition to initiate the adoption, amendment, or repeal of a charter, including the forma- tion of a new charter commission. Any petition that fails to meet the applicable requirements, or that is circulated in a manner other than that permitted by the applicable requirements, is invalid. 1. Warning on Petition. At the top of each page of the petition, the following must be printed in plain red letters no smaller than ten point, boldface type: WARNING: IT IS AGAINST THE LAW: For anyone to sign any petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to sign such petition when not a regis- tered elector. DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR TO BE A REGISTERED ELECTOR, YOU MUST BE: 1. At least eighteen years of age. 2. A citizen of the United States. 3. A resident of the state of Colorado and have resided in the state of at least thirty days. 4. A resident of the municipal election precinct in which you live for at least thirty days. 5. Registered to vote pursuant to part 2 of article 2 of title 1, Colorado Revised Statutes. Do not sign this petition unless you have read or had read to you the text of the proposal in its entirety and understand its meaning. 2. Signatures. The petition must be signed only by registered electors by their own signa- tures; next to each signature, the signer's residence address, including street and number (if any) and the municipality, and the date of signing, must be included." 3. Affidavit. Each petition must have attached an affidavit of some registered elector stating the elector's address; that the affiant is a registered elector of the municipality or of the territory proposed to be incorporated; that the affiant circulated the said petition; that each signature thereon was affixed in his or her presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best knowledge and Home Rule Handbook 33 belief of the affiant each of the persons signing said petition was at the time of signing a registered elector; and that the affiant has not paid or will not in the future, and that the affiant believes that no other person has so paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to such petition. No petition may be accepted for filing if it does not have the affidavit attached. 4. Circulator. A petition may not be circulated by any person who is not a registered elector of the municipality or of the territory proposed to be incorporated. 70 5. Form of Petition. The petition must be printed on pages eight and one -half inches wide by 11 inches long, with a margin of two inches at the top for binding; the sheets for signature must have their ruled lines numbered consecutively and must be attached to a complete copy of what is proposed, printed in plain block letters no smaller than eight -point type. Petitions may consist of any number of sections composed of sheets arranged as required?' 6. Representatives of signers. Each petition must designate by name and address not less than three nor more than five registered electors to represent the signers thereof in all matters affecting the petition 72 7. Approval of Form. No petition may be printed, published, or otherwise circulated until the municipal clerk approves it as to form only. The clerk must assure that the petition contains only the matters required by the statute and contains no extraneous material. The clerk must approve or disapprove the form of the petition within five working days of submission. The petitions must be prenumbered serially. 8. Disassembly. Any disassembly of the petition which has the effect of separating the affi- davits from the signatures will render the petition invalid. Prior to the time of filing, the persons designated in the petition to represent the signers must attach the sheets con- taining the signatures and affidavits together; the sheets must be bound in convenient volumes together with the sheets containing the signatures accompanying the same. 9. Protest. A petition which has attached thereto an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing such petition was at the time of signing a registered elector is prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors, unless a protest in writing, under oath, is filed in the clerk's office by some registered elector of the municipality (or territory proposed to be incorporated, if the petition is for the adoption of a home rule charter in connection with incorporation of a municipality) within 30 days after such petition is filed, setting forth with par- ticularity the grounds of the protest and the names protested. 10. Notice of Hearing. If a protest is filed, the clerk must mail a copy of the protest to the per- sons named in the petition as representing the signers at the addresses given in the peti- tion, together with a notice fixing a time for a hearing on the protest. The hearing must be not less than five nor more than 20 days after the notice is mailed. If, at the hearing, the protest is denied in whole or in part, the person filing the protest may file, within ten days after the denial, an amended protest. A copy of the amended protest must be mailed to the persons named in the petition. A hearing must be held on the amended protest as in the case of the original protest. No amendment to an amended protest is permitted? 11. Hearing. All records and hearings must be public, and all testimony at the hearing must be under oath. The clerk has the power to issue subpoenas to compel the attendance of 34 Colorado Municipal League witnesses and the production of documents at the hearing. If any witness fails to obey the subpoena, the clerk may petition the district court for an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the order of court is punishable as a contempt of court. Hearings must be held as soon as is conveniently pos- sible and must be concluded within 30 days after the commencement thereof. The result of the hearing must be certified to the persons representing the signers of the petition." 12. Insufficiency of Petition. If the petition is declared insufficient in form or number of sig- natures of registered electors, a majority of the persons representing the signers of the petition may withdraw it. Within 15 days after the insufficiency is declared, the petition may be amended or additional names signed, and the petition may then be refiled as an original petition. 13. Review of Determination. The finding as to the sufficiency of a petition may be reviewed by the district court of the county in which the petition is filed; the district court's deci- sion is subject to review by the supreme court. BALLOT REQUIREMENTS The following requirements apply to the official ballot for a proposal to adopt, amend, or repeal a home rule charter, including the formation of a new charter commission. Ballot. The proposal must appear upon the official ballot by ballot title only and, if there is more than one proposal, they must be numbered consecutively in the order determined by the governing body and must be printed on the official ballot in that order, together with their respective numbers prefixed in boldface type. Each ballot title must appear once on the offi- cial ballot, must be separated from the other ballot titles next to it by heavy black lines, and must be followed by the words "yes" and "no" as follows: (HERE SHALL APPEAR THE BALLOT TITLE IN FULL) YES NO UNLAWFUL ACTS CONCERNING PETITIONS The following acts are unlawful with respect to any petition to initiate the adoption, amend- ment, or repeal of a home rule charter, including the formation of a new charter commission: 1. For any person willfully and knowingly to circulate or cause to be circulated or sign or procure to be signed any petition bearing the name, device, or motto of any person, orga- nization, association, league, or political party, or purporting in any way to be endorsed, approved, or submitted by any person, organization, association, league, or political party, without the written consent, approval, and authorization of such person, organi- zation, association, league, or political party; 2. For any person to sign any name other than his own to any such petition or knowingly to sign his name more than once for the same measure at one election; 3. For any person who is not a registered elector of the municipality or of the territory pro- posed to be incorporated at the time of signing the same to sign any such petition; Home Rule Handbook 35 4. For any person to sign any affidavit as circulator without knowing or reasonably believing the statements made in such affidavit to be true; 5. For any person to certify that an affidavit attached to such petition was subscribed or sworn to before him unless it was so subscribed and sworn to before him and unless such person so certifying is duly qualified under the laws of this state to administer an oath; or 6. For any person willfully to do any act in reviewing the petition or setting the ballot title which shall confuse or tend to confuse the issues submitted or proposed to be submitted at any election or to refuse to submit any such petition in the form presented for sub- mission at any election. Any person who violates any of the provisions of this section commits a class 2 misde- meanor and shall be punished as provided in section 18 -1 -106, C.R.S. PROCEDURES FOR ADOPTING A CHARTER UPON INCORPORATION (Incorporation procedures found in part 1 of article 2 of title 31, C.R.S. as amended, should be referred to while reading this summary.) 1. Initiation. The petition for incorporation (31 -2 -101) must also petition for initiation of home rule and must be signed by at least five percent of the registered electors of the ter- ritory to be embraced within the boundaries of the proposed municipality 8 2. Procedures. The court- appointed election commission will exercise the powers, functions, and responsibilities assigned in the Act to the governing body or municipal clerk. The procedures required for incorporation and for adoption of a home rule charter are to be modified as necessary to allow simultaneous consideration of incorporation and home rule. 3. Election on Incorporation and Home Rule. At the incorporation election, the electors also vote on whether a charter commission should be formed, and on the candidates for the charter commission. 4. Election Results. If a majority of the registered electors voting approve incorporation and forming a charter commission, the first election of officers of the municipality must be stayed pending drafting and approval of the home rule charter pursuant to the require- ments of 31 -2 -206 and 31 -2- 207. When the charter or revised charter is finally approved, or when the revised charter is rejected, the election commission then proceeds with the first election of municipal officers and the completion of incorporation as required in part 1 of article 2 of title 31, C.R.S. ENDNOTES 1. See "Contents of the Charter," (page 43 of this handbook) for provisions which either must be or need not be included in the charter. 2. C.R.S.31 -2- 211(1). 3. 31-10-1539(2). 4. 31-2-211(2). 5. 31-2-211(3). 6. 31-2-203(1). 7. 31-2-215(1). 8. 31-2-215(2). 9.31 -2 -216. 36 Colorado Municipal League 10.31 -2 -214. 11.31 -2 -208. 12.31 -2 -218. 13. 31-2-212; Colo. Const. article XX, 5. 14. Shields v. City of Loveland, 74 Colo. 27, 218 P. 913 (1923). 15. Witcher v. City of Canon City, 716 P.2d 445 (Colo. 1986); City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977). 16. Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692 (1960). 17. Bemzen v. City of Boulder, 186 Colo. 81, 525 P.2d 416 (1974). 18. C.R.S.31 -2 -217. 19. 31-2-204(1). 20. 31-2-204(2). 21. 31-2-204(2). 22. 31-2-206(2). 23.31 -2 -213. 24. 31-2-204(2). 25. 31-2-204(3). 26. 31-2-204(3). 27. 31-2-205(1). 28. 31-2-205(2). 29. 31-2-206(1). 30. 31-2-206(2). 31. 31-2-206(3). 32. 31-2-206(7). 33. 31-2-206(3). 34. 31-2-206(4). 35. 31-2-206(4). 36. 31-2-206(4). 37. 31-2-206(5),(6) and (8). 38. 31-2-206(7). 39. 31-2-206(9) and (10); 31 -2- 207(3). 40. 31-2-207(1). 41. 31-2-207(1). 42. 31-2-207(2). 43. 31-2-207(3). 44. 31-2-207(3). 45. 31-2-210(1). 46. 31-2-210(1) (a) (I). 47. 31-2-210(1) (a) (I). 48. 31-2-210(1) (a) (II 49. 31-2-210(1)(a)(III) and (IV). 50. 31-2-201(1)(a)(III) and (IV). Home Rule Handbook 37 51. 31-2-210(3). 52. 31-2-210(4). 53. 31-2-210(4). 54. 31-2-210(6). 55. 31-2-210(2). 56. 31-2-210(2). 57. 31-2-210(4). 58. 31-2-210(4). 59. 31-2-210(6). 60. See City and County of Denver v. New York Trust Co., 229 U.S. 123 (1913); Speer v. People, 52 Colo. 325, 122 P.768 (1912); Moore v. Perkins, 56 Colo. 17, 137 P. 55 (1913). 61. C.R.S.31 -2- 210(2). 62. 31-2-210(2). 63.31 -2- 210(4). 64. 31-2-210(4). 65. 31-2-210(5). 66.31 -2 -219. 67. 31-2-220(1). 68. 31-2-220(2). 69. 31-2-220(2). 70. 31-2-220(3); but see Buckley v. American Constitutional Law Foundation, U.S.* (1999) invalidat- ing a requirement that petition circulators at the state level be "registered electors This decision may indicate that any statutory requirement that petition circulators must be registered electors will be unenforceable. 71. C.R.S.31 -2- 221(1). 72. 31-2-221(1). 73. 31-2-221(1). 74. 31-2-221(2). 75. 31-2-223(1). 76. 31-2-223(1). 77. 31-2-223(2). By legislation passed in 1991 amending 13- 10- 112(2), the municipal court may also enforce subpoenas issued by the clerk. 78. 31-2-223(2). 79. 31-2-223(2). 80. 31-2-223(2). 81.31 -2 -222. 82.31 -2 -225. 83. 31-2-209(2). 84. 31-2-209(3). 85. 31-2-209(3). 86. 31-2-209(4). 87. 31-2-209(5). 88. 31-2-209(5). 38 Colorado Municipal League Chapter IV Preparing The Charter INTRODUCTION The opportunity to draft a charter may arise only once in the lifetime of a community. When it does, those responsible for drafting the charter, the charter commission members, usually face two major problems: (1) a limited amount of time in which to write the charter; and (2) a lack of experience in writing charters. This chapter offers some assistance with both problems. PRE COMMISSION PREPARATION Partly because of the time limitations placed on the charter commission's work, several municipalities have, prior to the initiation of home rule, established study groups composed of both citizens and council members. These groups usually provide background work by study- ing whether the municipality will in fact profit by the adoption of a home rule charter, the ad- vantages and disadvantages of home rule in relation to the needs of their own municipality, and various charters to determine what might be contained in their own charter, and then pos- sibly, by drafting a charter which would reflect the individuality of the municipality's needs. The study group then reports their results to the municipal governing body. Study group work may assist in the adoption of a home rule charter. A study group will bring the idea of home rule to the attention of the municipality's citizens and, by so doing, begin the process of educating citizens on home rule and creating citizen interest in home rule. The study group may also provide invaluable background work which can be used later by the charter commission background work which, because of time limitations placed on the charter commission, might be impossible to obtain otherwise. Whether the study group should prepare a charter may be open to question. It might be useful to the charter commission as a starting point for deliberations. However, it might also cause the commission to limit the scope of its work unduly if the commission assumes that its only duty is to modify and adopt the study group's charter. Because commission members are elected by the citizens to write their charter and because there is a variety of possible charter provisions available, such a limitation on the commission's work might not be in the best inter- ests of the community. However, regardless of whether the study group writes a charter, its other services may be of invaluable assistance to the commission. There may, in fact, be several study groups organized within a community prior to the initi- ation of home rule. Organizations such as the local League of Women Voters might form their own groups and offer their results to a citizen council group or to the charter commission. Home Rule Handbook 39 The council of one city considering the adoption of home rule asked the city attorney to compile samples of various possible charter provisions. Prior to the first meeting of the charter commission, the attorney compiled a volume of material containing three or four samples of possible charter provisions and an outline analysis of the differences among the samples. The material was presented to the commission at one of its early meetings and apparently expedit- ed debate and work of the commission. The Colorado Municipal League has prepared a matrix of charter provisions of all the home rule municipalities in Colorado as of July 1998. The matrix as well as copies of charters that have been adopted are available from the League. The matrix allows for comparison of how home rule municipalities have addressed issues in their respective charters. Sample pro- cedural and organizational rules used by charter commissions are located in Appendix H. Finally, the charter commission itself should be representative of the whole community and should not be dominated by municipal officials or by one or a few interest groups. Those inter- ested in initiating home rule might encourage people who represent various community inter- ests to run for membership on the charter commission. CHARTER COMMISSION ORGANIZATION In order to create a charter of high quality within the statutory time limits, the charter com- mission itself must be well organized. The Act provides that the first meeting of the charter commission must be called by the governing body within 20 days after the election of the com- mission members.' The first meeting should be called as soon as possible, and the governing body should select a public place for the meeting and set a time and day which is convenient for the commission members. At the first meeting, the commission might organize its work, establish its operating proce- dures, and, if necessary, acquaint the members of the commission with each other. The follow- ing are suggestions for action at the first meeting: 1. If the members of the commission are not well acquainted, it might be best to elect only temporary officers a chairperson pro tem and secretary pro tem. (If the members are well acquainted, the commission may wish to select permanent officers and a permanent steering committee in order to expedite the work of the commission.) 2. Select a small temporary steering committee which would be responsible for reporting, at the second meeting, its suggestions on the following: a. a simple plan of organization and set of procedural rules to be followed in commis- sion meetings; b. nominations for any offices required by the organization plan; c. a tentative schedule of general commission meetings and a tentative date for the public hearing or hearings on the charter; d. a tentative estimate of the financial needs of the commission; e. suggestions for the employment of any needed consultants; and f. a program for meetings which might include speakers on municipal home rule law and on the powers and duties of the charter commission. 3. Make a list of commission members with their addresses and phone numbers. (This list might be copied and distributed to all commission members.) 4. Obtain suggestions from the members concerning the most convenient times and places for future meetings. Set the time and place for the second meeting. 40 Colorado Municipal League 5. Discuss the preliminary needs of the commission. 6. Schedule a short time during the meeting to receive any citizen petitions, suggestions, or study group results. 7. If possible, provide loose -leaf binders to commission members for keeping material per- taining to the work of the commission. At the second meeting, the commission might complete the organizational work of the commission and inform members of their legal powers, duties, and responsibilities. The sec- ond meeting might include: 1. Hear and discuss the report of the temporary steering committee. 2. Adopt a plan of organization. 3. Receive nominations for officers; elect and install officers. 4. Discuss and adopt rules of procedure including such matters as scheduling meetings, the duties of the elected officers, and the adoption of a standard book on parliamentary rules. 5. Discuss and possibly establish time limits for various phases of the commission work in order to avoid a rush to meet last- minute deadlines. 6. Hear any speakers on the commission's legal powers, duties, and responsibilities. 7. Consider whether consultants should be utilized to advise the commission. It is vital that the content of each meeting be planned in advance to ensure the completion of the commission's work within necessary time limits. The commission might consider estab- lishing a permanent steering committee to plan and give direction to the meetings. This com- mittee might be composed of the elected officers plus a few other members, remembering to keep the size of the committee workable. Minutes of each committee and commission meeting should be kept and made available to the members of the commission in order to keep each member up to date on the commission's work. The commission might prepare a proposed budget and present it to the municipality's gov- erning body. Because the municipality is required to pay the expenses of the commission, it should, if possible, receive estimated budgets from the commission in order to plan for the payment of commission expenses. Perhaps the greatest need, in addition to well planned meetings, is well- conducted meet- ings. Rules of procedure should be followed in order to provide a sound structure for commis- sion discussions and decisions, and the presiding officer must keep the commission focused on the business at hand. Again, because of statutory time limitations, wasted time in commission work can only reduce the quality of the final charter. In order to save hours of work for the commission as a whole, one home rule charter com- mission appointed a five member drafting committee at their first organizational meeting. This committee met independently of the total charter commission and drafted proposed sec- tions of the charter. Prior to each meeting of the entire commission, drafted sections were given to the members of the commission to review. The commission then discussed and offered amendments and corrections to the sections drafted by the committee. Another charter commission selected a different procedure. The first two meetings of the commission were almost wholly concerned with establishing the organization and procedural rules of the commission. At the first meeting a president, vice- president, and secretary were elected, and two committees were established. The Rules and Organization Committee draft- Home Rule Handbook 41 ed the rules of organization and procedure for the commission and answered questions regarding interpretation of the rules during the term of the commission. The second commit- tee, the Publicity and Steering Committee, was responsible for all publicity related to the work of the charter commission, and for formulating plans to promote and explain the charter to the people after the commission completed its work. At the commission's second meeting, the organizational structure and procedural rules recommended by the Rules and Organization Committee were adopted, and three additional standing committees were named. The Drafting Committee was responsible to draft various charter provisions. The Calendar Committee established programs and a schedule for the commission's work. This committee decided what topics would be discussed at each meeting and provided commission members with all necessary information relating to the particular topic under discussion. The Finance and Personnel Committee cleared budget expenditures with the municipality's administrator and arranged for necessary consultant, clerical, or steno- graphic help. Finally, it should be remembered that the Act contains several requirements pertaining to the work of the charter commission. These requirements are summarized on pages 29 and 30 of this handbook. One particular provision to keep in mind is 31 -2- 206(9), which requires the charter commission to hold at least one public hearing while preparing the proposed charter. SPECIAL CONSULTANTS The Charter commission can minimize its understandable lack of experience in charter writing by obtaining the services of an attorney or other special consultant experienced in the areas of charter drafting, home rule, public finance, and municipal law generally. If the com- mission does not have sufficient funds to hire a special consultant it might consider, at a mini- mum, requesting the assistance of persons in other home rule communities who are experi- enced in the problems and procedures of drafting charters. Remember that commissions hire special consultants to assist the commission in drafting the charter. If used properly, a special consultant, with practical experience or technical knowledge can be of invaluable assistance to the commission. DRAFTING THE CHARTER Because the charter likely will not be amended frequently, special care should be taken in drafting charter provisions. Provisions should be written in clear, simple, and concise lan- guage. The charter is a legal document; thus, words used in the charter must be chosen with care to ensure that those words clearly state the intended meaning. If they do not, litigation may result, and numerous amendments to the charter may be required. The charter should be viewed as a single, unified instrument, consistent in language and content. Inconsistent charter provisions can also lead to unnecessary litigation regarding the real meaning or intent of the charter. The charter should also be viewed as a lasting document. As noted previously in this Handbook, the charter is to the municipality what a constitution is to the federal or state gov- ernment; the United States Constitution has lasted for centuries, and the Colorado Constitution has lasted for decades. Opportunities to amend the charter may be infrequent, and such amendments may be difficult to accomplish. Thus, when evaluating the need for or desirability of a particular charter provision, the commission may wish to take a long -range view of the charter. It may be helpful, for instance, to evaluate whether the provision addres- ses a long -range issue appropriate for inclusion in the charter or addresses an immediate or ephemeral issue that may change with time and may thus be better addressed by ordinance. 42 Colorado Municipal League As noted previously, the charter is also a document of limitation; a home rule municipality has the power to act unless the charter limits such action. Therefore, the most flexible charter is a document that contains the minimum requirements stated in general and broad terms. Finally, a simple, flexible numbering system for charter provisions should be used so that future amendments to the charter can be easily inserted in their proper place. CONTENTS OF THE CHARTER Philosophy of the Commission A charter is the central document governing a home rule municipality. It is to the munici- pality what the constitution is to the state. It outlines the organizational structure of the municipality, establishes the basic procedures to be followed when the governing body acts, and imposes restrictions on the powers of the municipality. Because charter provisions are legally viewed as limitations on the powers of the municipal- ity, the charter commission must first determine whether the proposed charter should be of a broad and general nature, or of a detailed and restrictive nature. The commission should answer this question before it begins drafting specific charter sections since the decision will affect not only the contents of the charter but also the wording of the charter provisions. The experiences of several Colorado municipalities suggest that the best charters are broad and general in nature, since broadly worded charters generally create more flexible and responsive governments. One of the major advantages of home rule is that it frees the municipality from the often excessive or outdated restrictions found in state statutes. If the home rule charter is itself extremely detailed or restrictive, the municipality and its citizens may not obtain the benefits offered by home rule. In contrast to the charter, ordinances are more easily adopted, amended, and repealed, thus allowing the municipality to seek new methods to solve local problems, to respond more quickly and effectively to local problems, to create an effective administrative sys- tem based on continuing experience, and to correct or change previous judgments as needed. Some people argue that a charter with few restrictions on the local government is a danger- ous document. However, this should not be so. The charter should contain the basic structure of the government and will, to some degree, limit the authority of municipal officials. Moreover, there are limits set by the state and federal constitutions, by the state legislature in matters which are not purely local and municipal, and by court interpretations of municipal powers. There are financial limitations on the administration. There are citizen powers elec- tions, initiative, referendum, and recall procedures to hold the administration in line. If broad, general powers granted by a charter result in abuses, the citizens will likely amend the charter quickly to restrict those powers; in contrast, it may be more difficult to remove restrictions on the powers granted by a charter once those restrictions are in place. Required Charter Provisions 1. Initiative, Referendum, and Recall Procedures. The Act requires the charter to contain ini- tiative, referendum, and recall procedures; Section 5 of Article XX and Section I of Article V of the Colorado Constitution similarly requires the charter to contain initiative and referen- dum procedures. See page 27 of this Handbook for a brief discussion of the problems con- cerning the content of these provisions. 2. Continuing, Amending or Repealing Existing Ordinances. Section 4 of Article XX of the Colorado Constitution requires the charter to contain a provision for continuing, amending, or repealing ordinances in force at the time the charter is adopted. Home Rule Handbook 43 3. Prefatory Synopsis. (Although a prefatory synopsis is probably not a charter provision, it is included here for the sake of convenience.) Section 4 of Article XX requires that a prefatory synopsis be written for the charter. Restrictions on Charter Provisions 1. Tax Rate. No charter or charter amendment can diminish the tax rate established for state purposes by the General Assembly or in any way interfere with the collection of state taxes for state purposes. 2. Franchises. Franchises are one area in which home rule municipalities may be subject to more restrictions than statutory municipalities. The initiative and referendum powers are guaranteed with respect to franchises even if the ordinance granting the franchise con- tains an emergency clause, and the signatures of not more than five percent of the reg- istered electors may be required in order to order a referendum on a franchise See pages 2 -3 for a general discussion of other restrictions on the municipality's power to adopt various charter provisions or ordinances. Possible Charter Provisions The following material includes some examples of provisions taken from the charters of various Colorado home rule municipalities. These examples are not offered here as sugges- tions for adoption but merely as examples of how some municipalities have solved, through their charter, various problems which were created for them by state statutes or constitutional provisions, or by the lack of such statutes and provisions. Because different problems are faced by different municipalities, these examples may not be applicable to any particular municipality. All municipalities preparing a home rule charter, however, should use the char- ter to solve at least some existing municipal problems. The following is a discussion of only some of the possible charter provisions. Many other provisions are and should be included in charters. 1. Form of Government. After deciding whether the charter should be of a broad or restric- tive nature, the commission should decide what form of government will be adopted by the municipality. The commission should make this decision early in its work since the form of government affects many other important charter provisions, such as the size of the council, methods of nominating and electing municipal officials, terms of office, duties of the mayor and council, etc. The following is a brief description of some possible forms of government: a. Commission Form. A typical commission plan of government provides for five com- missioners, elected at -large by the voters, to serve as a legislative and administrative body. The board of commissioners generally controls all administrative departments within the municipality, with each commissioner heading a particular department. This form of government has, for several reasons, been abandoned by an increasing number of municipalities in recent years. Commissioners, though good policy mak- ers, may not have administrative expertise. There is usually no single executive to coordinate activities of the various departments and to accept responsibility for administrative decision making. And, the commission government often fails to provide sufficient checks within itself to control spending, since those who appro- priate funds also spend the funds. b. Weak Mayor Council. This form of government began in the 19th century and also has been discarded by numerous municipalities in past years. This form is character- 44 Colorado Municipal League ized by a mayor elected by the voters, an elected council which confirms departmen- tal appointments by the mayor, separately elected department heads, and adminis- trative boards which are either elected or appointed for overlapping terms. The problems of a weak mayor form are similar to those in the commission form. There is no single, unifying, and responsible executive; different persons may con- trol various administrative departments, thereby creating a lack of coordination and unity of effort; and the numerous elective positions may result in voter confusion and lack of effective voter control. c. Strong Mayor Council. The strong mayor council form of government corrects many of the problems found in the weak mayor and commission forms. Both the mayor and council are elected; however, the elected mayor usually has the authority to hire and fire department heads without confirmation of the council, to veto acts of the council, to prepare the municipal budget for council approval, and to administer the budget after it has been adopted. Thus, the strong mayor plan corrects one of the most serious defects of the prior two forms by providing a single, responsible execu- tive. The major problems within this form arise because there may be few individuals who are both sufficiently expert administrators to run a city organization and suffi- ciently adept politicians to be elected. Thus, expertise may bow to political qualifi- cations at election time. Another possible hazard in the strong mayor plan is that sufficient political differences may arise between the mayor and council to impede daily governmental functions since the mayor may veto actions of the council, and the council controls the finances necessary to the administration of the government. d. Mayor Administrator. To correct some of the defects found in the strong mayor plan, some cities have experimented with the mayor administrator form of government. The structure of the government is similar to that in the strong mayor plan except that much of the mayor's administrative responsibility is delegated to a single chief administrator who is responsible directly to the mayor. This form of government has been adopted in some of the larger cities in the nation. e. Council Manager. The council- manager plan has two basic features: a small elected council to decide policy questions; and a professionally trained manager, hired by the council and subject to dismissal by the council, to govern the municipal administration. The mayor may be elected at large or from the council but generally has a limited role conducting council meetings and acting in a ceremonial role, with- out additional administrative powers. Major advantages of this plan of government are: policy making and administrative functions are separated; the manager pro- vides expert guidance in administrative matters; responsibility is centralized in a sin- gle, chief executive who is held directly accountable to the council; municipal spend- ing may be more easily controlled; and the manager, as an employee, may be readily dismissed by the council if the manager's work is unsatisfactory. Disadvantages sometimes cited for this form of government are: the municipality lacks a strong political figure in a position of leadership since the administrative executive (the manager) is appointed by the council; voter control over the munici- pal government may be decreased since voters elect only the council and have no direct control over the manager; and the cost of hiring a qualified manager may be relatively high. Home Rule Handbook 45 See Appendix D for a complete list of Colorado home rule municipalities and their forms of government. 2. Qualifications of Elective Officials. When establishing qualifications for elective office, the charter commission might consider whether the qualification under consideration will, to any degree, help ensure the election of high quality officials. The commission should also obtain assistance to avoid establishing any qualifications that are not permitted by law. 3. Size of the Council. The number of council members should be sufficiently large to ensure adequate representation of the citizens, yet not so large as to become unworkable. 4. At -Large or District Representation. Council members may be elected at- large, from dis- tricts, or from a combination of at -large and districts; the size of the municipality might influence which type of representation to select. The assurance of representation from discrete neighborhoods or areas of the municipality might be balanced against the assur- ance that council members will represent the community as a whole rather than the sometimes parochial interests of a particular district. Any applicable legal restrictions on districting should be observed as well. 5. Terms of Office. Many home rule charters provide staggered terms of office for council members in order to establish some continuity in the government. The length of the terms of office for council members generally ranges from two years to four years. A longer term of office allows council members to learn their jobs and to function effective- ly on the basis of their knowledge. However, too long a term of office might prevent the citizens from quickly changing the complexion of their governing body if they desire to do so. Perhaps the commission should attempt to decide what term of office would pro- vide continuity and stability in the governing body without resulting in stagnant govern- ment and without excessively reducing the voters' control over the governing body. While a limitation on the total number of terms that may be served is now imposed by the Colorado Constitution'', the charter may provide a different number of terms or elimi- nate term limits altogether. If the charter is silent on term limits, the constitutional restriction will apply. 6. Filling of Vacancies. Most home rule charters provide that the city council will fill any vacancies on the council. Some charters require an election to fill vacancies where numerous vacancies exist at one time. 7. Powers of the Council. This is one of the charter sections where the commission's decision on the general or restrictive nature of the charter is important. If the commission attempts to itemize the powers of the city council it may inadvertently omit important powers or phrase specific grants of power in too restrictive a manner. Most recent home rule charters include broad grants of power to the council and, for reasons expressed ear- lier in this Handbook, a broad grant would appear advisable. 8. Mayor. Any decisions relating to the office of mayor depend largely on the form of govern ment selected by the commission. Under a council manager plan, the mayor (sometimes called "president of the council is often elected by the council from its members to preside over council meetings and to be recognized legally as head of the municipal government. At least one home rule charter provides, within its council -man- ager plan, for the at -large election of a mayor with a specific term of office. In a mayor council plan, the mayor is normally elected at -large from the municipality. The mayor's powers and duties will necessarily be more extensive than those of a mayor 46 Colorado Municipal League in the council manager plan because he or she is charged with the administration of the municipal government. 9. City Manager. The manager is usually appointed by vote of the council to serve at the council's pleasure. The mayor's powers and duties may be more specifically defined than those of the council, and the charter may establish methods to be followed when remov- ing the manager. The manager might not be required to be a resident of the municipality or state, at least prior to appointment, since the primary qualifications for the position are usually administrative ability and experience. In addition, some charters contain a provision specifically defining the relationship between the council, mayor, and the city manager in order to prevent the mayor or council from interfering with the administra- tive functions of the municipal government. 10. Election Procedures. The Election Code provides that, while the Code does not apply to a home rule municipality, the municipality may adopt it in whole or in part. Because of the comprehensive and modern nature of the Election Code, many home rule muni- cipalities have elected to adopt its provisions with only minor variations. In this regard, whenever the commission considers adopting state statutes or constitutional provisions in the charter, care should be taken to indicate that these statutes or provisions are adopted either with or without future amendments. If the charter does not mention future amendments, a question may later arise as to whether future statutory or constitutional amendments apply to the municipality. The charter often names the municipal election date. Many Colorado home rule charters require that the municipal election be held in odd numbered years. Because state and federal elections are held in even numbered years, holding municipal elections in odd numbered years may allow the voters an opportunity to concentrate more closely on local problems, issues, and candidates. Other election related issues which may be resolved in the charter are methods of estab- lishing election precincts, procedures for calling special elections (some home rule char- ters provide that special elections may be called by resolution rather than by ordinance), hours of voting during elections, and the establishment of an election commission. 11. Administrative Organization. This is another area where the charter provision should be generally worded, rather than specifically worded. That is, the charter might specify the methods of establishing administrative departments and identify the person— manager or mayor —who shall supervise and control the administrative departments. However, a charter which itemizes the various departments, their duties, functions, and organization might seriously impair the ability of the chief administrator or council to change the administrative structure in order to meet problems as they arise. It should be possible to alter the administrative organization quickly in order to ensure efficient municipal administration as the municipality's needs change. 12. Boards and Commissions. If boards and commissions are to be established, it again might be best not to go into great detail in the charter regarding the powers, duties, qual- ifications of members, etc. of the boards and commissions. The charter may be phrased in general language, to be supplemented later by ordinance, and perhaps should be worded so as to permit the governing body to add or delete boards and commissions as the need arises. 13. Ordinances and Resolutions. Most home rule charters contain a provision stating when the council must act by ordinance and when it may act by resolution or motion. Often, Home Rule Handbook 47 certain actions are required to be taken only by ordinance, e.g., creating an indebtedness, levying a tax, and establishing a rule which includes a penalty if violated. Some municipalities have found that publication costs constitute a rather large portion of their annual budget. As a result, some charters provide that the title of an ordinance and a statement that the ordinance is on file in the clerk's office for public inspection is suffi- cient publication. Some charters also provide that copies of the ordinance will be posted in public places within the municipality. The charter may also allow for publication of notices and ordinances in a more cost- efficient manner than that dictated by state statute. This charter provision is an example of how the charter can be used to solve some of the problems existing for the municipality under present state statutes. Several of the older charters contain provisions stating that ordinances and resolutions shall be confined to one subject clearly expressed in the title Omission of such a provi- sion may be sound, however; with such a provision, if the governing body errs and places more than one subject in the ordinance, the validity of the ordinance may be attacked and the costs of adopting ordinances under this type of provision may be increased since the municipality might have to adopt a larger number of ordinances. In the area of emergency ordinances, the charter commission faces the problem of estab- lishing procedures which will allow the governing body to act quickly, yet prevent arbi- trary action. Some charters contain a provision that an emergency ordinance may be enacted at either a regular or special meeting by an affirmative vote of a greater number of council members than is required for a non emergency ordinance. The ordinance then takes effect on the date of passage. The commission might consider including a provision in the charter to establish, or to allow the council by ordinance to establish, procedures to be followed when adopting codes by reference. The charter might also include requirements for codifying ordinances; establishing the number of votes necessary for adopting ordinances, resolutions, and motions; and the basic ordinance form. 14. Personnel. The commission may include a charter provision providing basic re- quirements for the establishment of a personnel system. It might again be advisable to leave the detail of the system to ordinance. 15. Legal and Judicial Departments. The charter might contain a provision establishing the method of selecting the municipal attorney, and who the municipal attorney represents. If the attorney represents more than just the council i.e., the mayor, manager, or depart- ment heads practical and ethical problems may arise in the event of a conflict between one of these administrative officers and council. In addition, the charter might outline the procedures to be followed when hiring special counsel. The charter should also include a provision establishing the municipal court. Article 10 of title 13, C.R.S. as amended, relates to the establishment of municipal courts and contains a section allowing home rule cities to supersede any section of the article except for those "provisions relating to the method of salary payment for municipal judges, ...the right to a jury trial for petty offenses..., rules of procedure promulgated by the supreme court, and appellate procedure.... 16. Budget, Control, and Financing. Most present charters contain provisions relating to the scope of the annual budget, methods to be used when adopting the budget, and require- 48 Colorado Municipal League ments for public hearings prior to the adoption of the budget. In addition, charters often contain general provisions establishing various types of funds; however, care should again be taken so that unnecessary details will not be included to facilitate the transfer by the governing body of money among the various funds since transfers are not easily accomplished under present state statutes. Such a review may help the municipality avoid provisions that unnecessarily restrict future solutions to fiscal problems and increase financing costs. 17. Municipal Borrowing. The commission should provide reasonable limitations on borrow- ing without being too restrictive. It might be noted that there are outside limitations on a municipality's borrowing power in that, if the municipality is not considered a sound financial risk, the municipality's bonds may not be purchased. The charter itself may con- tain general provisions creating the methods or procedures to be followed when issuing or refunding the various types of bonds, and setting certain general limitations on bond sales. Bond counsel assistance in this area may be helpful. The authority of home rule municipalities to structure their own charter provisions for debt and borrowing was curtailed considerably by the adoption of the TABOR amend- ment in 1992. TABOR requires virtually any "multiple fiscal year direct or indirect dis- trict debt or other financial obligation whatsoever" to be put to a vote of the people. It also specifies how and when such an election must be conducted'. 18. Eminent Domain. If the commission decides to include a charter section on eminent domain, it should consider wording the section to state that the municipality will have the power of eminent domain both inside and outside municipal boundaries. If this is not clearly stated, the municipality's powers might be unnecessarily restricted by court inter- pretation. ENDNOTES 1. C.R.S. 31 -2- 206(4). 2. Colo. Const. art. XX, 5. 3. Colo. Const. art. XX, 4. 4. Colo. Const. Art. XVIII, 11. 5. C.R.S. 31 -10- 1539(2). 6. The Colorado General Assembly has long operated under a "single subject rule" for state legisla- tion and, via a 1994 constitutional amendment, this rule was extended to statewide initiatives and referenda. Colo. Const. Art. V, 1 (5.5). The state's single subject rule, particularly as applied to ini- tiated legislation, has been subject to considerable litigation. 7. 13 -10 -103. Some discussion of a home rule municipality's authority relating to municipal judges is contained in City of Thornton v. Horan, 192 Colo. 144, 556 P.2d 1217 (1976), Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972), andArtes -Roy v. City of Aspen, 856 P.2d 823 (Colo. App. 1993). 8. Colo. Const. Art. X, 20(3), (4)(b). Home Rule Handbook 49 Chapter V Publicizing Home Rule INTRODUCTION The approval of a home rule charter is not guaranteed. A number of Colorado municipali- ties have, in fact, rejected home rule as a concept in the first election. One individual, who was instrumental in the initiation of home rule for a Colorado municipality which eventually rejected the idea, stated that public apathy was the primary reason for the rejection. Home rule as a philosophy of government may not generate the election excitement or interest as does an individual contest for an elective office. In addition, in the municipality rejecting home rule, those persons initiating it were overconfident, and many people who favored the idea simply didn't bother to vote because they assumed it would be approved by others. Home rule represents a change from the existing system of government. There are people who oppose change itself, and little can be done to encourage these people to consider home rule thoughtfully. However, there are others who oppose change because they are satisfied with the present system. These people may support home rule if they can be shown that the proposed change is needed and will result in an improved local government. For all of the above reasons, those involved and interested in the adoption of a home rule charter must spend a considerable amount of time and effort in educating local citizens on the need for a home rule charter and on the advantages of a particular charter proposed for the community. The effort to win public understanding and acceptance of home rule must begin with the group or groups planning to initiate the concept; and the effort to win public under- standing and acceptance of a particular home rule charter must begin the day the charter commission is elected. Those supporting home rule should attempt to inform the municipality's citizens of the need for a change and of the way in which a particular proposed charter will fulfill that need. Limitations in the present system of government may be emphasized; the advantages of home rule in general, and of a particular proposed charter, may be emphasized; and the citizens should be shown how home rule will benefit them as well as their community. The following material offers some methods which may be used to obtain public acceptance and understanding of home rule. GENERAL SUGGESTIONS Those supporting home rule should attempt to plan an educational program designed to reach all segments of the community. 1. Hold both neighborhood and general public meetings on home rule. Home Rule Handbook 51 2. Distribute material and discuss home rule on a door -to -door basis. 3. Obtain the cooperation of the local newspaper, issue press releases, and if possible, run a series on the various aspects, advantages, and disadvantages of home rule. 4. Create a speaker's bureau to talk to all community groups about home rule. 5. If possible, ask local TV or radio stations for time on news programs to conduct inter- views and debates on home rule. 6. Obtain endorsements from as varied a portion of the public as possible municipal offi- cials, social, civic, and fraternal organizations, business organizations, etc. 7. Contact local schools in order to develop classroom projects on home rule, particularly for civics classes. 8. Print and distribute pamphlets and other material including reprinted articles, editorials, endorsements, "Questions and Answers" booklets, and simple fliers. 9. Immediately before the elections, distribute sample ballots and create a "get out the vote" campaign. 10. Observe all applicable limitations on involvement by municipalities and officials in elec- tion campaigns. See, e.g., 1 -45 -117. SUGGESTIONS FOR THE CHARTER COMMISSION The general methods of publicizing home rule should be used prior to the first election to form a charter commission and should also be used to publicize the work of the charter com- mission. In addition, the following suggestions are offered specifically to the commission. 1. The charter commission should invite all citizen group— including labor, business, profes- sions, churches, civic groups, and veterans groups to submit suggestions and to send rep- resentatives to the public hearing or hearings on the charter. 2. At least one public hearing should be held after completing the draft of the proposed charter so that the commission can explain the charter and gather information on the public's attitude toward specific charter provisions. 3. City officials and employees should be consulted to obtain suggestions and advice from persons experienced in the operation of municipal government. 4. The public should be informed concerning the progress of the commission's work. Perhaps a tentative charter draft could be published with an invitation for public com- ments and criticisms. This would enable the commission to make any necessary ad- justments in the charter, thus improving its chance for success. 5. The commission should encourage the development of a broad organization of individual citizens and groups to promote the formulation and adoption of a sound charter. 6. Create and distribute material to show how the proposed charter will solve problems existing in the present governmental structure and how it will benefit the citizens as indi- viduals as well as the community as a whole. Avoid partisan politics, and instead, attempt to obtain support from a coalition of the leading political figures in the municipality. 52 Colorado Municipal League Appendix A Article XX of the Colorado Constitution Section 1. Incorporated. The municipal corporation known as the city of Denver and all municipal corporations and that part of the quasi municipal corporation known as the county of Arapahoe, in the state of Colorado, included within the exterior boundaries of the said city of Denver as the same shall be bounded when this amendment takes effect, are hereby consol- idated and are hereby declared to be a single body politic and corporate, by the name of the "City and County of Denver By that name said corporation shall have perpetual succession, and shall own, possess, and hold all property, real and personal, theretofore owned, possessed, or held by the said city of Denver and by such included municipal corporations, and also all property, real and personal, theretofore owned, possessed, or held by the said county of Arapahoe, and shall assume, manage, and dispose of all trusts in any way connected there- with; shall succeed to all the rights and liabilities, and shall acquire all benefits and shall assume and pay all bonds, obligations, and indebtedness of said city of Denver and of said included municipal corporations and of the county of Arapahoe; by that name may sue and defend, plead and be impleaded, in all courts and places, and in all matters and proceedings; may have and use a common seal and alter the same at pleasure; may purchase, receive, hold, and enjoy or sell and dispose of, real and personal property; may receive bequests, gifts, and donations of all kinds of property, in fee simple, or in trust for public, charitable, or other pur- poses; and do all things and acts necessary to carry out the purposes of such gifts, bequests, and donations, with power to manage, sell, lease, or otherwise dispose of the same in accor- dance with the terms of the gift, bequest, or trust; shall have the power, within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, add to, main- tain, conduct, and operate water works, light plants, power plants, transportation systems, heating plants, and any other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefore, for the use of said city and county and the inhab- itants thereof, and any such systems, plants, or works or ways, or any contracts in relation or connection with either, that may exist and which said city and county may desire to purchase, in whole or in part, the same or any part thereof may be purchased by said city and county which may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain, and shall have the power to issue bonds upon the vote of the taxpay- ing electors, at any special or general election, in any amount necessary to carry out any of Home Rule Handbook 53 said powers or purposes, as may by the charter be provided. The provisions of section 3 of article XIV of this constitution and the general annexation and consolidation statutes of the state relating to counties shall apply to the city and county of Denver. Any contiguous town, city, or territory hereafter annexed to or consolidated with the city and county of Denver, under any such laws of this state, in whatsoever county the same may be at the time, shall be detached per se from such other county and become a municipal and territorial part of the city and county of Denver, together with all property thereunto belonging. The city and county of Denver shall alone always constitute one judicial district of the state. Any other provisions of this constitution to the contrary notwithstanding: No annexation or consolidation proceeding shall be initiated after the effective date of this amendment pursuant to the general annexation and consolidation statutes of the state of Colorado to annex lands to or consolidate lands with the city and county of Denver until such proposed annexation or consolidation is first approved by a majority vote of a six- member boundary control commission composed of one commissioner from each of the boards of county commissioners of Adams, Arapahoe, and Jefferson counties, respectively, and three elected officials of the city and county of Denver to be chosen by the mayor. The commission- ers from each of the said counties shall be appointed by resolution of their respective boards. No land located in any county other than Adams, Arapahoe, or Jefferson counties shall be annexed to or consolidated with the city and county of Denver unless such annexation or con- solidation is approved by the unanimous vote of all the members of the board of county com- missioners of the county in which such land is located. Any territory attached to the city and county of Denver or the city of Lakewood or the city of Aurora during the period extending from April 1, 1974, to the effective date of this amend- ment, whether or not subject to judicial review, shall be detached therefrom on July 1, 1975, unless any such annexation is ratified by the boundary control commission on or before July 1, 1975. Nothing in this amendment shall be construed as prohibiting the entry of any final judg- ment in any annexation judicial review proceeding pending on April 1, 1974, declaring any annexation by the city and county of Denver to be invalid. The boundary control commission shall have the power at any time by four concurring votes to detach all or any portion of any territory validly annexed to the city and county of Denver during the period extending from March 1, 1973, to the effective date of this amend- ment. All actions, including actions regarding procedural rules, shall be adopted by the commis- sion by majority vote. Each commissioner shall have one vote, including the commissioner who acts as the chairman of the commission. All procedural rules adopted by the commission shall be filed with the secretary of state. This amendment shall be self executing. Section 2. Officers. The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the charter; and the jurisdiction, term of office, duties and qualifications of all such officers shall be such as in the charter may be pro- vided; but the charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable. If any officer of said city and county of Denver shall receive any compensation 54 Colorado Municipal League whatever, he or she shall receive the same as a stated salary, the amount of which shall be fixed by the charter, or, in the case of officers not in the classified civil service, by ordinance within limits fixed by the charter, and paid out of the treasury of the city and county of Denver in equal monthly payments; provided, however, no elected officer shall receive any increase or decrease in compensation under any ordinance passed during the term for which he was elect- ed. Section 3. Transfer of government. Immediately upon the canvass of the vote showing the adoption of this amendment, it shall be the duty of the governor of the state to issue his proclamation accordingly, and thereupon the city of Denver, and all municipal corporations and that part of the county of Arapahoe within the boundaries of said city, shall merge into the city and county of Denver, and the terms of office of all officers of the city of Denver and of all included municipalities and of the county of Arapahoe shall terminate; except, that the then mayor, auditor, engineer, council (which shall perform the duties of a board of county commissioners), police magistrate, chief of police and boards, of the city of Denver shall become, respectively, said officers of the city and county of Denver, and said engineer shall be ex officio surveyor and said chief of police shall be ex officio sheriff of the city and county of Denver; and the then clerk and ex officio recorder, treasurer, assessor and coroner of the county of Arapahoe, and the justices of the peace and constables holding office within the city of Denver, shall become, respectively, said officers of the city and county of Denver, and the district attorney shall also be ex officio attorney of the city and county of Denver. The forego- ing officers shall hold the said offices as above specified only until their successors are duly elected and qualified as herein provided for; except that the then district judges, county judge and district attorney shall serve their full terms, respectively, for which elected. The police and firemen of the city of Denver, except the chief of police as such, shall continue severally as the police and firemen of the city and county of Denver until they are severally discharged under such civil service regulations as shall be provided by the charter; and every charter shall pro- vide that the department of fire and police and the department of public utilities and works shall be under such civil service regulations as in said charter shall be provided. Section 4. First charter. (1) The charter and ordinances of the city of Denver as the same shall exist when this amendment takes effect, shall, for the time being only, and as far as applicable, be the charter and ordinances of the city and county of Denver; but the people of the city and county of Denver are hereby vested with and they shall always have the exclusive power in the making, altering, revising or amending their charter and, within ten days after the proclamation of the governor announcing the adoption of this amendment the council of the city and county of Denver shall, by ordinance, call a special election, to be conducted as pro- vided by law, of the qualified electors in said city and county of Denver, for the election of twenty -one taxpayers who shall have been qualified electors within the limits thereof for at least five years, who shall constitute a charter convention to frame a charter for said city and county in harmony with this amendment. Immediately upon completion, the charter so framed, with a prefatory synopsis, shall be signed by the officers and members of the conven- tion and delivered to the clerk of said city and county who shall publish the same in full, with his official certification, in the official newspaper of said city and county, three times, and a week apart, the first publication being with the call for a special election, at which the quali- fied electors of said city and county shall by vote express their approval or rejection of the said charter. If the said charter shall be approved by a majority of those voting thereon, then two copies thereof (together with the vote for and against) duly certified by the said clerk, shall, Home Rule Handbook 55 within ten days after such vote is taken, be filed with the secretary of state, and shall there- upon become and be the charter of the city and county of Denver. But if the said charter be rejected, then, within thirty days thereafter, twenty -one members of a new charter convention shall be elected at a special election to be called as above in said city and county, and they shall proceed as above to frame a charter, which shall in like manner and to the like end be published and submitted to a vote of said voters for their approval or rejection. If again reject- ed, the procedure herein designated shall be repeated (each special election for members of a new charter convention being within thirty days after each rejection) until a charter is finally approved by a majority of those voting thereon, and certified (together with the vote for and against) to the secretary of state as aforesaid, whereupon it shall become the charter of the said city and county of Denver and shall become the organic law thereof, and supersede any existing charters and amendments thereof. The members of each of said charter conventions shall be elected at large; and they shall complete their labors within sixty days after their respective election. (2) Every ordinance for a special election of charter convention members shall fix the time and place where the convention shall be held, and shall specify the compensation, if any, to be paid the officers and members thereof, allowing no compensation in case of nonattendance or tardy attendance, and shall fix the time when the vote shall be taken on the proposed charter, to be not less than thirty days nor more than sixty days after its delivery to the clerk. The char- ter shall make proper provision for continuing, amending or repealing the ordinances of the city and county of Denver. (3) All expenses of charter conventions shall be paid out of the treasury upon the order of the president and secretary thereof. The expenses of elections for charter conventions and of charter votes shall be paid out of the treasury upon the order of the council. (4) Any franchise relating to any street, alley, or public place of the said city and county shall be subject to the initiative and referendum powers reserved to the people under section 1 of article V of this constitution. Such referendum power shall be guaranteed notwithstanding a recital in an ordinance granting such franchise that such ordinance is necessary for the immediate preservation of the public peace, health, and safety. Not more than five percent of the registered electors of a home rule city shall be required to order such referendum. Nothing in this section shall preclude a home rule charter provision which requires a lesser number of registered electors to order such referendum or which requires a franchise to be voted on by the registered electors. If such a referendum is ordered to be submitted to the registered electors, the grantee of such franchise shall deposit with the treasurer the expense (to be determined by said treasurer) of such submission. The council shall have power to fix the rate of taxation on property each year for city and county purposes. Section 5. New charters. amendments or measures. The citizens of the city and county of Denver shall have the exclusive power to amend their charter or to adopt a new charter, or to adopt any measure as herein provided; It shall be competent for qualified electors in number not less than five percent of the next preceding gubernatorial vote in said city and county to petition the council for any measure, or charter amendment, or for a charter convention. The council shall submit the same to a vote of the qualified electors at the next general election not held within thirty days after such peti- tion is filed; whenever such petition is signed by qualified electors in number not less than ten percent of the next preceding gubernatorial vote in said city and county, with a request for a special election, the council shall submit it at a special election to be held not less than thirty 56 Colorado Municipal League nor more than sixty days from the date of filing the petition; provided, that any question so submitted at a special election shall not again be submitted at a special election within two years thereafter. In submitting any such charter, charter amendment or measure, any alterna- tive article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. Whenever the question of a charter convention is car- ried by a majority of those voting thereon, a charter convention shall be called through a spe- cial election ordinance as provided in section four (4) hereof, and the same shall be constitut- ed and held and the proposed charter submitted to a vote of the qualified electors, approved or rejected, and all expenses paid, as in said section provided. The clerk of the city and county shall publish, with his official certification, for three times, a week apart, in the official newspapers, the first publication to be with his call for the elec- tion, general or special, the full text of any charter, charter amendment, measure, or proposal for a charter convention, or alternative article or proposition, which is to be submitted to the voters. Within ten days following the vote the said clerk shall publish once in said newspaper the full text of any charter, charter amendment, measure, or proposal for a charter conven- tion, or alternative article or proposition, which shall have been approved by majority of those voting thereon, and he shall file with the secretary of state two copies thereof (with the vote for and against) officially certified by him, and the same shall go into effect from the date of such filing. He shall also certify to the secretary of state, with the vote for and against, two copies of every defeated alternative article or proposition, charter, charter amendment, mea- sure or proposal for a charter convention. Each charter shall also provide for a reference upon proper petition therefor, of measures passed by the council to a vote of the qualified electors, and for the initiative by the qualified electors of such ordinances as they may by petition request. The signatures to petitions in this amendment mentioned need not all be on one paper. Nothing herein or elsewhere shall prevent the council, if it sees fit, from adopting automatic vote registers for use at elections and references. No charter, charter amendment or measure adopted or defeated under the provisions of this amendment shall be amended, repealed or revived, except by petition and electoral vote. And no such charter, charter amendment or measure shall diminish the tax rate for state pur- poses fixed by act of the general assembly, or interfere in any wise with the collection of state taxes. The city council, or board of trustees, or other body in which the legislative powers of any home rule city or town may then be vested, on its own initiative, may submit any measure, charter amendment, or the question whether or not a charter convention shall be called, at any general or special state or municipal election held not less than 30 days after the effective date of the ordinance or resolution submitting such question to the voters. Section 6. Home rule for cities and towns. The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and munic- ipal matters. Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith. Home Rule Handbook 57 Proposals for charter conventions shall be submitted by the city council or board of trustees, or other body in which the legislative powers of the city or town shall then be vested, at special elections, or at general, state or municipal elections, upon petition filed by qualified electors, all in reasonable conformity with section 5 of this article, and all proceedings thereon or there- after shall be in reasonable conformity with sections 4 and 5 of this article. From and after the certifying to and filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this article, such city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of this article, and all other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control: a. The creation and terms of municipal officers, agencies and employments; the definition, regulation and alteration of the powers, duties, qualifications and terms or tenure of all municipal officers, agents and employees; b. The creation of police courts; the definition and regulation of the jurisdiction, powers and duties thereof, and the election or appointment of police magistrates therefor; c. The creation of municipal courts; the definition and regulation of the jurisdiction, powers and duties thereof, and the election or appointment of the officers thereof; d. All matters pertaining to municipal elections in such city or town, and to electoral votes therein on measures submitted under the charter or ordinances thereof, including the calling or notice and the date of such election or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, can- vassing, certifying the result, securing the purity of elections, guarding against abuses of the elec- tive franchise, and tending to make such elections or electoral votes nonpartisan in character; e. The issuance, refunding and liquidation of all kinds of municipal obligations, including bonds and other obligations of park, water and local improvement districts; f. The consolidation and management of park or water districts in such cities or towns or within the jurisdiction thereof; but no such consolidation shall be effective until approved by the vote of a majority, in each district to be consolidated, of the qualified electors voting therein upon the question; g. The assessment of property in such city or town for municipal taxation and the levy and collection of taxes thereon for municipal purposes and special assessments for local improve- ments; such assessments, levy and collection of taxes and special assessments to be made by municipal officials or by the county or state officials as may be provided by the charter; h. The imposition, enforcement and collection of fines and penalties for the violation of any of the provisions of the charter, or of any ordinance adopted in pursuance of the charter. It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self government in both local and municipal mat- ters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exer- cise of such right. The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters. All provisions of the charters of the city and county of Denver and the cities of Pueblo, Colorado Springs and Grand Junction, as heretofore certified to and filed with the secretary 58 Colorado Municipal League of state, and of the charter of any other city heretofore approved by a majority of those voting thereon and certified to and filed with the secretary of state, which provisions are not in con- flict with this article, and all elections and electoral votes heretofore had under and pursuant thereto, are hereby ratified, affirmed and validated as of their date. Any act in violation of the provisions of such charter or of any ordinance thereunder shall be criminal and punishable as such when so provided by any statute now or hereafter in force. The provisions of this section 6 shall apply to the city and county of Denver. This article shall be in all respects self executing. Section 7. City and county of Denver single school district consolidations. The city and county of Denver shall alone always constitute one school district, to be known as District No. 1, but its conduct, affairs and business shall be in the hands of a board of education consisting of such numbers, elected in such manner as the general school laws of the state shall provide, and until the first election under said laws of a full board of education which shall be had at the first election held after the adoption of this amendment, all the directors of school district No. 1, and the respective presidents of the school boards of school districts Nos. 2, 7, 17 and 21, at the time this amendment takes effect, shall act as such board of education, and all dis- tricts or special charters now existing are hereby abolished. The said board of education shall perform all the acts and duties required to be performed for said district by the general laws of the state. Except as inconsistent with this amendment, the general school laws of the state shall, unless the context evinces a contrary intent, be held to extend and apply to the said "District No. 1 Upon the annexation of any contiguous municipality which shall include a school district or districts or any part of a district, said school district or districts or part shall be merged in said "District No. 1 which shall then own all the property thereof, real and personal, located within the boundaries of such annexed municipality, and shall assume and pay all the bonds, obligations and indebtedness of each of the said included school districts, and a proper pro- portion of those of partially included districts. Provided, however, that the indebtedness, both principal and interest, which any school dis- trict may be under at the time when it becomes a part, by this amendment or by annexation, of said "District No. 1 shall be paid by said school district so owing the same by a special tax to be fixed and certified by the board of education to the council which shall levy the same upon the property within the boundaries of such district, respectively, as the same existed at the time such district becomes a part of said "District No. 1 and in case of partially included dis- tricts such tax shall be equitably apportioned upon the several parts thereof. Section 8. Conflicting constitutional provisions declared inapplicable. Anything in the constitution of this state in conflict or inconsistent with the provisions of this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for. Section 9. Procedure and reauirements for adoption. (1) Notwithstanding any provision in sections 4, 5, and 6 of this article to the contrary, the registered electors of each city and coun- ty, city, and town of the state are hereby vested with the power to adopt, amend, and repeal a home rule charter. (2) The general assembly shall provide by statute procedures under which the registered electors of any proposed or existing city and county, city, or town may adopt, amend, and Home Rule Handbook 59 repeal a municipal home rule charter. Action to initiate home rule shall be by petition, signed by not less than five percent of the registered electors of the proposed or existing city and county, city, or town, or by proper ordinance by the city council or board of trustees of a town, submitting the question of the adoption of a municipal home rule charter to the registered electors of the city and county, city, or town. No municipal home rule charter, amendment thereto, or repeal thereof, shall become effective until approved by a majority of the regis- tered electors of such city and county, city, or town voting thereon. A new city or town may acquire home rule status at the time of its incorporation. (3) The provisions of this article as they existed prior to the effective date of this section, as they relate to procedures for the initial adoption of home rule charters and for the amend- ment of existing home rule charters, shall continue to apply until superseded by statute. (4) It is the purpose of this section to afford to the people of all cities, cities and counties, and towns the right to home rule regardless of population, period of incorporation, or other limitation, and for this purpose this section shall be self- executing. It is the further purpose of this section to facilitate adoption and amendment of home rule through such procedures as may hereafter be enacted by the general assembly. Section 10. City and County of Broomfield created. The city of Broomfield is a preexist- ing municipal corporation and home rule city of the state of Colorado, physically situated in parts of Adams, Boulder, Jefferson, and Weld counties. On and after November 15, 2001, all territory in the municipal boundaries of the city of Broomfield shall be detached from the counties of Adams, Boulder, Jefferson, and Weld and shall be consolidated into a single coun- ty and municipal corporation with the name "The City and County of Broomfield." Prior to November 15, 2001, the city of Broomfield shall not extend its boundaries beyond the annexa- tion boundary map approved by the Broomfield city council on April 28, 1998, as an amend- ment to the city of Broomfield 1995 master plan. The existing charter of the said city of Broomfield shall become the charter of the city and county of Broomfield. The city and county of Broomfield shall have perpetual succession; shall own, possess, and hold all real and personal property, including water rights, the right to use water, and con- tracts for water, currently owned, possessed, or held by the said city of Broomfield; shall assume, manage, and dispose of all trusts in any way connected therewith; shall succeed to all the rights and liabilities of, shall acquire all benefits of, and shall assume and pay all bonds, obligations, and indebtedness of said city of Broomfield and its proportionate share of the general obligation indebtedness and, as provided by intergovernmental agreement, its propor- tionate share of revenue bond obligations of the counties of Adams, Boulder, Jefferson, and Weld on and after November 15, 2001. The city and county of Broomfield may sue and defend, plead, and be impleaded in all courts and in all matters and proceedings; may have and use a common seal and alter the same at pleasure; may grant franchises; may purchase, receive, hold, and enjoy, or sell and dis- pose of real and personal property; may receive bequests, gifts, and donations of real and per- sonal property, or real and personal property in trust for public, charitable, or other purposes, and do all things and acts necessary to carry out the purposes of such gifts, bequests, dona- tions, and trusts with power to manage, sell, lease, or otherwise dispose of the same in accor- dance with the terms of the gift, bequest, donation, or trust. The city and county of Broomfield shall have the power within and without its territorial lim- its to construct, condemn, purchase, acquire, lease, add to, maintain, conduct, and operate water works, water supplies, sanitary sewer facilities, storm water facilities, parks, recreation 60 Colorado Municipal League facilities, open space land, light plants, power plants, heating plants, electric and other energy facilities and systems, gas facilities and systems, transportation systems, cable television sys- tems, telecommunication systems, and other public utilities or works or ways local in use and extent, in whole or in part, and everything required therefor, for the use of said city and county and the inhabitants thereof; to purchase in whole or in part any such systems, plants, works, facilities, or ways, or any contracts in relation or connection thereto that may exist, and may enforce such purchase by proceedings at law as in taking land for public use by right of eminent domain; and to issue bonds in accordance with its charter in any amount necessary to carry out any said powers or purposes, as the charter may provide and limit. The city and county of Broomfield shall have all of the powers of its charter and shall have all of the powers set out in section 6 of this article, including the power to make, amend, add to, or replace its charter as set forth in section 9 of this article. The charter provisions and procedures shall supersede any constitutional or statutory limitations and procedures regarding financial obligations. The city and county of Broomfield shall have all powers conferred to home rule municipalities and to home rule counties by the constitution and general laws of the state of Colorado that are not inconsistent with the constitutional provisions creating the city and county of Broomfield. Prior to November 15, 2001, the charter and ordinances of the city of Broomfield shall gov- ern all local and municipal matters of the city. On and after November 15, 2001, the constitu- tional provisions creating and governing the city and county of Broomfield, the city and county charter adopted in accordance with these constitutional provisions, and the ordinances exist- ing and adopted from time to time shall govern all Local and municipal matters of the city and county of Broomfield. On and after November 15, 2001, the requirements of section 3 of article XIV of this con- stitution and the general annexation and consolidation statutes of the state relating to coun- ties shall apply to the city and county of Broomfield. On and after November 15, 2001, any contiguous territory, together with all property belonging thereto, hereafter annexed to or consolidated with the city and county of Broomfield under any laws of this state, in whatsoever county the same may be at the time, shall be detached from such other county and become a municipal and territorial part of the city and county of Broomfield. On and after November 15, 2001, no annexation or consolidation proceeding shall be initi- ated pursuant to the general annexation and consolidation statues of the state to annex lands to or consolidate lands with the city and county of Broomfield until such proposed annexation or consolidation is first approved by a majority vote of a seven member boundary control commission. The boundary control commission shall be composed of one commissioner from each of the boards of commissioners of Adams, Boulder, Jefferson, and Weld counties, respectively, and three elected officials of the city and county of Broomfield. The commission- ers from each of the said counties shall be appointed by resolution of the respective county boards of commissioners. The three elected officials from the city and county of Broomfield shall be appointed by the mayor of the city and county of Broomfield. The boundary control commission shall adopt all actions, including actions regarding procedural rules, by majority vote. Each member of the boundary control commission shall have one vote, including the commissioner who acts as chairperson of the commission. The commission shall file all proce- dural rules adopted by the commission with the secretary of state. Section 11. Officers—city and county of Broomfield. The officers of the city and county of Broomfield shall be as provided for by its charter or ordinances. The jurisdiction, term of office, and duties of such officers shall commence on November 15, 2001. The qualifications Home Rule Handbook 61 and duties of all such officers shall be as provided for by the city and county charter and ordi- nances but the ordinances shall designate the officers who shall perform the acts and duties required by county officers pursuant to this constitution or the general laws of the state of Colorado, as far as applicable. All compensation for elected officials shall be determined by ordinance and not by state statute. If any elected officer of the city and county of Broomfield shall receive any compensation, such officer shall receive the same as a stated salary, the amount of which shall be fixed by ordinance within limits fixed by the city and county charter or by resolution approving the city and county budget and paid in equal monthly payments. No elected officer shall receive any increase or decrease in compensation under any ordinance or resolution passed during the term for which such officer was elected. Section 12. Transfer of government. Upon the canvass of the vote showing the adoption of the constitutional provisions creating and governing the city and county of Broomfield, the governor shall issue a proclamation accordingly, and, on and after November 15, 2001, the city of Broomfield and those parts of the counties of Adams, Boulder, Jefferson, and Weld includ- ed in the boundaries of said city shall be consolidated into the city and county of Broomfield. The duties and terms of office of all officers of Adams, Boulder, Jefferson, and Weld counties shall no longer be applicable to and shall terminate with regard to the city and county of Broomfield. On and after November 15, 2001, the terms of office of the mayor and city coun- cil of the city of Broomfield shall terminate with regard to the city of Broomfield and said mayor and city council shall become the mayor and city council of the city and county of Broomfield. The city council of the city and county of Broomfield, in addition to performing the duties prescribed in the city and county charter and ordinances, shall perform the duties of a board of county commissioners or may delegate certain duties to various boards and com- missions appointed by the city council of the city and county of Broomfield. The city and county of Broomfield shall be a successor district of the city of Broomfield under section 20 of article X of this constitution. Any voter approval granted the city of Broomfield under section 20 of article X of this constitution prior to November 15, 2001, shall be considered voter approval under said section for the city and county of Broomfield. The city and county of Broomfield shall have the power to continue to impose and collect sales, use, and property taxes that were imposed by the city of Broomfield and the counties of Adams, Boulder, Jefferson, and Weld within the areas where said taxes were imposed on November 14, 2001, until the voters of the city and county of Broomfield approve uniform sales, use, and property taxes within the city and county of Broomfield or approve increased sales, use, or property taxes within the city and county of Broomfield. Any violation of any criminal statutes of the state of Colorado occurring on or before November 14, 2001, shall continue to be prosecuted within the county where the violation originally occurred. Section 13. Sections self executing appropriations. Sections 10 through 13 of this article shall be in all respects self executing and shall be construed so as to supersede any conflicting constitutional or statutory provision that would otherwise impede the creation of the city and county of Broomfield or limit any of the provisions of those sections. Except as otherwise pro- vided in sections 10 through 13, said sections shall be effective on and after November 15, 2001. After the adoption of the constitutional provisions creating and governing the city and county of Broomfield, the general assembly may appropriate funds, if necessary, in coopera- tion with the city and county of Broomfield to implement these constitutional provisions at the state level. 62 Colorado Municipal League Appendix B Chronology of Amendments to Article XX of the Colorado Constitution The following chronology tracks the history of Article XX of the Colorado Constitution. Readers should note, however, that through the years there have been other amendments codified elsewhere in the constitution that have an indirect effect on home rule authority. For example, the TABOR Amendment (1992), codified at Article X, Section 20, expressly super- sedes any "conflicting state constitutional, state statutory, charter, or other state or local pro- visions." The Term Limit Amendment (1994), codified at Article XVIII, Section 11, expressly applies to all home rule municipalities. In more recent years, the Colorado Supreme Court has indicated that an initiated constitutional amendment that incidentally affects municipal home rule authority under Article XX may not pass muster under the "single subject rule" that has been in effect for all initiatives since 1994} 1902 Article )0C: Home Rule Cities and Towns In 1898, the Denver city council called a convention to formulate recommendations to be presented to the state legislature providing a new charter for Denver. There was much discus- sion regarding a home rule amendment to the Colorado Constitution, but nothing was pro- posed at that time. Finally, in 1901, a home rule amendment was submitted to the people of Colorado and was ratified by the citizens at the 1902 general election by a margin of nearly 35,000 votes. This constitutional amendment, the original Article XX, consolidated the Denver city and county governments and the school districts, defined the boundaries, created a merit system for some employees, and empowered the voters of Denver and other cities to enact and amend the home rule charter. Home Rule Handbook 63 1912 Section 6: Home rule for cities and towns In response to a series of court cases which effectively narrowed the powers of home rule municipalities, section 6 was amended to clarify that home rule municipalities have supreme authority in areas of local and municipal concern. The original wording of section 6 provided merely that the people of a city have the power to propose charter conventions and amend such charter, with full power as to real and personal property and public utilities. The amend- ment to section 6 expanded those powers, stating that a city's charter shall extend to all local and municipal matters and shall supercede any conflicting law. As a result of this amendment, a number of specific powers are now enumerated in section 6. However, the amendment was careful to provide that such enumeration not be construed to deny home rule cities and towns any right or power essential to the full exercise of the right of self government in both local and municipal matters. 1950 Section 2: Officers The original section 2 provided that city officer's salaries be fixed by the city charter and paid out of the city treasury. The 1950 amendment added that salaries of officers not in the classified Civil Service shall be fixed by ordinance within limits fixed by the charter, and that no elected officer shall receive any increase or decrease in compensation under any ordinance passed during the term for which he was elected. Section 5: New charters, amendments or measures Prior to 1950, section 5 of article 20 required that citizens of the city petition the council for a charter amendment for the adoption of a new charter or measure. This amendment added a new paragraph providing that the city council, on its own initiative may submit such a measure or amendment to the voters by ordinance or resolution. 1970 Section 9: Procedure and requirements for adoption Prior to 1970, a newly incorporated area in the state was prohibited from assuming home rule status until it was incorporated for at least five years. Municipalities with less than 2,000 population were also prevented from becoming home rule. In 1969, article XX was amended by the addition of section 9, to permit any municipality, regardless of population or period of incorporation, to acquire home rule status. The amendment also permitted the legislature to establish less cumbersome procedures facilitating the adoption of home rule. 1974 Section 1: incorporated Two separate amendments were adopted in 1974, which dramatically limited the authority of Denver to annex territory. The Poundstone amendment, initiated by the people, deleted prior language that allowed Denver to annex like other municipalities. At the same time as the Poundstone amendment was adopted, the voters approved a legislatively referred measure that requires any change in Denver County boundaries to be approved by a six- member "Boundary Control Commission," including representatives of all the metro area counties. 64 Colorado Municipal League 1984 Section 4: First charter Section 9: Procedure and requirements for adoption In 1984, a number of sections in the constitution were amended to change the term "quali- fied elector" to "registered elector." While both qualified and registered electors meet the age and residency requirements for voting, only the latter has actually registered to vote. Revisions brought about by this amendment included several references in sections 4 and 9 of article XX. As a result of these changes, the power to adopt, amend or repeal a municipal home rule charter is vested in the registered, rather than qualified electors; the right of recall is exercised by registered, rather than qualified electors, and; a franchise relating to a street, alley, or pub- lic place in a home rule municipality is voted on by registered, rather than qualified electors. 1986 Section 4: First charter A 1986 amendment brought a number of changes to section 4 of article XX of the Colorado Constitution, concerning the granting of franchises by home rule municipalities. The amend- ment eliminated the requirement that a franchise granted by a home rule municipality be automatically submitted to a vote of the registered electors; provided that a franchise in a home rule municipality shall be subject to initiative and referendum; guaranteed the referen- dum right in a home rule municipality despite the inclusion of a provision in the franchise ordinance stating that the ordinance is necessary for the immediate preservation of the public peace, health and safety; provided that not more than 5% of the registered electors in a home rule municipality shall be required to order a referendum on a franchise; provided that a home rule charter may provide for a lesser percentage than five percent of the registered elec- tors to order a referendum on a franchise, and allowed a home rule charter to continue to require that a franchise be automatically submitted to a vote of the registered electors. 1998 Section 10: City and County of Broomfield— created Section 11: Officers —City and County of Broomfield Section 12: Transfer of govemment Section 13: Section self-executing--appropriations Sections 10 through 13 provide for the creation of the city and county of Broomfield effec- tive November 15, 2001. These additions contain language substantially similar to sections 1, 2 and 3 relating to the consolidation of the City and County of Denver. ENDNOTE 1. In re the Title, Ballot Title and Submission Clause and Summary for 1997 -1998 #64, 960 P.2d 1192 (Colo. 1998); In re the Title, Ballot Title and Submission Clause and Summary for 1997 -1998 #95, 960 P.2d 1204 (Colo. 1998). Home Rule Handbook 65 Appendix C Municipal Home Rule Statute Section 31 -2 -201. Short title. This part 2 shall be known and may be cited as the "Municipal Home Rule Act of 1971." Section 31 -2 -202. Legislative declaration. The general assembly declares that the policies and procedures contained in this part 2 are enacted to implement section 9 of article XX of the state constitution, adopted at the 1970 general election, by providing statutory procedures to facilitate adoption and amendment of municipal home rule charters, and to this end this part 2 shall be liberally construed. The provisions of this part 2 shall supersede the require- ments of Article XX of the state constitution as they relate to procedures for the initial adop- tion of home rule charters and for the amendment of existing hime rule charters as provided in section 9(3) of article XX of the state constitution. Section 31 -2 -203. Definition. As used in this part 2, unless the context otherwise requires: (1) "Publication" means one publication in one newspaper of general circulation within the municipality. If there is no such newspaper, publication shall be by posting in at least three public places within the municipality. Section 31 -2 -204. Initiation of home rule. (1) Proceedings to adopt a home rule charter for a municipality may be initiated: (a) By the submission of a petition, signed by at least five percent of the registered electors of the municipality, to the governing body thereof; or (b) By the adoption of an ordinance by the governing body of the municipality, without the prior submission of a petition therefor. (2) Within thirty days after the initiation of the proceedings, in accordance with either para- graph (a) or (b) of subsection (1) of this section, the governing body of the municipality shall call an election for the purpose of forming a charter commission and of electing members thereof to frarPe a charter for the municipality, which election shall be held within one hun- dred twenty days after the date of the call of the election. The governing body shall cause notice of the election to be published not less than sixty days prior to the election. (3) Candidates for the charter commission shall be nominated by filing with the clerk, on forms supplied by the clerk, a nomination petition signed by at least twenty -five registered Home Rule Handbook 67 electors and a statement by the candidate of consent to serve if elected. Said petition and statement shall be filed within thirty days after publication of the election notice. A second notice of the election, as soon as possible after the completion of filings, shall be published by the governing body and shall include the names of candidates for the charter commission. Section 31 2 205. Election on formation of charter commission and designation of mem- bers. (1) At the election voters shall cast ballots for or against forming the charter commis- sion. If a majority of the registered electors voting thereon vote for forming the charter com- mission, a commission to frame a charter shall be deemed formed. (2) At the election voters shall also cast ballots for electing the requisite number of charter commission members. Those candidates receiving the highest number of votes shall be elect- ed. In the event of tie votes for the last available vacancy, the clerk shall determine by lot the person who shall be elected. Section 31 206. Charter commission. (1) The charter commission shall be comprised as follows: (a) In municipalities having a population of less than two thousand, nine members; and (b) In municipalities having a population of at least two thousand, nine members unless the initiating ordinance or petition establishes a higher odd number of members not to exceed twenty -one members. (c) (Deleted by amendment, L. 94, p. 1191, 89, effective July 1, 1994.) (2) If the petition or ordinance initiating home rule proceedings pursuant to section 31 -2- 204 (1) or initiating proceedings for forming a new charter commission pursuant to section 31- 2 -210 (2) specifies that the members of the charter commission shall be elected by and from single- or multi- member districts or by a combination of such districts and at -large representa- tion, the governing body, prior to publishing the notice provided for in section 31 -2 -204 (2) or 31 -2 -210 (3), shall divide the municipality into compact districts of approximately equal popu- lation. In such event the members of said charter commission shall be elected by and from dis- tricts, or partly by and from districts and partly at large, as specified in said petition or ordi- nance. (3) Eligibility to serve on the charter commission shall extend to all registered electors of the municipality. Any vacancy on the charter commission shall be filled by appointment of the governing body. (4) The charter commission shall meet at a time and date set by the governing body, which shall be not more than twenty days subsequent to the election, for the purpose of organizing itself. At such meeting, the commission members shall elect a chairman, a secretary, and such other officers as they deem necessary, all of which officers shall be members of the commis- sion. The commission may adopt rules of procedure for its operations and proceedings. A majority of the commission members shall constitute a quorum for transacting business. Further meetings of the commission shall be held upon call of the chairman or a majority of the members. All meetings shall be open to the public. (5) The commission may employ a staff; consult and retain experts; and purchase, lease, or otherwise provide for such supplies, materials, and equipment as it deems necessary. Upon completion of its work, the commission shall be dissolved, and all property of the commission shall become the property of the municipality. 68 Colorado Municipal League (6) The governing body may accept funds, grants, gifts, and services for the commission from the state of Colorado, or the United States government, or any agencies or departments thereof, or from any other public or private source. (7) Reasonable expenses of the charter commission shall be paid out of the general funds of the municipality, upon written verification made by the commission chairman and secretary, and the governing body shall adopt such supplemental appropriation ordinances as may be necessary to support such expenditures. Members of the commission shall receive no compen- sation but may be reimbursed for actual and necessary expenses incurred in the performance of their duties. (8) The charter commission may conduct interviews and make investigations in the prepa- ration of a charter, and, to the fullest extent practicable, municipal officials and employees shall cooperate with the commission by providing information, advice, and assistance. (9) The charter commission shall hold at least one public hearing in preparation of a pro- posed charter. (10) Within one hundred twenty days after its election, the charter commission shall submit to the governing body a proposed charter. Section 31 -2 -207. Charter election— notice. (1) Within thirty days after the date that the charter commission submits the proposed charter to it, the governing body shall publish and give notice of an election to determine whether the proposed charter shall be approved, which election shall be held not less than thirty nor more than one hundred twenty days after publi- cation of the notice thereof. Such notice of the election shall contain the full text of the pro- posed charter. (2) If a majority of the registered electors voting thereon vote to adopt the proposed char- ter, the charter shall be deemed approved and it shall become effective at such time as the charter provides. (3) If a majority of the registered electors voting thereon vote to reject the proposed char- ter, the charter commission shall proceed to prepare a revised proposed charter, utilizing the procedures set forth in section 31 -2 -206, and the governing body shall submit the revised pro- posed charter to an election in the manner set forth in subsection (1) of this section. If a majority of the registered electors voting on such revised proposed charter vote to adopt the revised proposed charter, it shall be deemed approved and it shall become effective at such time as the revised charter provides. If a majority of the registered voters voting thereon vote to reject the revised proposed charter, the charter commission shall forthwith be dissolved. Section 31 -2 -208. Filings— effect. (1) Within twenty days after its approval, a certified copy of the charter shall be filed with the secretary of state and with the clerk. (2) Upon such filings all courts shall take judicial notice of the charter. (3) This section shall also apply to any amendment or repeal of a charter. Section 31 -2 -209. Special procedure for adopting a charter upon incorporation. (1) Proceedings to adopt a home rule charter may be initiated at the time of incorporation. (2) In order to initiate home rule at the time of incorporation, the petition for incorpora- tion shall be in the form and meet the requirements required by the provisions of section 31 -2- 101, except that: Home Rule Handbook 69 (a) The petition shall be signed by at least five percent of the registered electors of the terri- tory to be embraced within the boundaries of the proposed municipality, notwithstanding any provision of section 31 -2 -101; and (b) The petition for incorporation shall request the initiation of proceedings for the adop- tion of a home rule charter pursuant to the provisions of this part 2. (3) The election commissioners appointed by the court pursuant to section 31 -2 -102 shall exercise, to the extent practicable, the powers, functions, and responsibilities otherwise assigned by this part 2 to the governing body or clerk, and the procedures for incorporation and adoption of a home rule charter shall be modified as necessary to effectuate concurrent consideration. (4) At the incorporation election, conducted under the provisions of section 31 -2 -102, the registered electors shall vote upon: (a) The question of incorporation, as set forth in section 31 -2 -102 (5); (b) The question of whether a charter commission should be formed, as set forth in section 31 -2 -205 (1); and (c) The election of charter commission members, as set forth in section 31 -2 -205 (2). (5) If a majority of the registered electors voting thereon vote for incorporation and for for- mation of a charter commission, the first election of officers shall be stayed pending drafting and approval of the charter pursuant to sections 31 -2 -206 and 31 -2 -207. Upon ratification of the charter or after rejection of a charter and revised charter pursuant to section 31 -2 -207, the election commissioners shall proceed to the first election of officers and to completion of incorporation pursuant to part 1 of this article. (6) If a majority of the registered electors voting thereon vote for incorporation but against the formation of a charter commission, the procedures set forth in part 1 of this article shall be followed as if the petition for incorporation had not included a request for the adoption of home rule at the time of incorporation. Section 31 -2 -210. Procedure to amend or repeal charter. (1) Proceedings to amend a home rule charter may be initiated by either of the following methods: (a) Filing of a petition meeting the following requirements, in the following manner: (I) The petition process shall be commenced by filing with the clerk a statement of intent to circulate a petition, signed by at least five registered electors of the municipality. The petition shall be circulated for a period not to exceed ninety days from the date of filing of the state- ment of intent and shall be filed with the clerk before the close of business on the ninetieth day from said date of filing or on the next business day when said ninetieth day is a Saturday, Sunday, or legal holiday. (II) The petition shall contain the text of the proposed amendment and shall state whether the proposed amendment is sought to be submitted at the next regular election or at a special election. If the amendment is sought to be submitted at a special election, the petition shall state an approximate date for such special election, subject to the provisions of subparagraph (IV) of this paragraph (a) and subsection (4) of this section. (III) A petition to submit an amendment at the next regular election must be signed by at least five percent of the registered electors of the municipality registered on the date of filing the statement of intent and must be filed with the clerk at least ninety days prior to the date of said regular election. 70 Colorado Municipal League (IV) A petition to submit an amendment at a special election must be signed by at least ten percent of the registered electors of the municipality registered on the date of filing the state- ment of intent and must be filed with the clerk at least ninety days prior to the approximate date of the special election stated in the petition. (b) An ordinance adopted by the governing body submitting the proposed amendment to a vote of the registered electors of the municipality. (2) Proceedings to repeal a home rule charter or to form a new charter commission may be initiated by either of the following methods: (a) Filing of a petition in the manner prescribed by, and meeting the requirements of, para- graph (a) of subsection (1) of this section; except that: (I) The petition shall state the proposal to repeal the charter or to form a new charter com- mission; (II) The petition must be signed by at least fifteen percent of the registered electors of the municipality, regardless of whether the petition seeks submission of the proposal at a regular or special election; and (III) If the proposal is for formation of a charter commission, the petition must be filed with the clerk at least ninety days prior to the date of the regular election or the approximate date stated in the petition for a special election, as the case may be. (b) An ordinance adopted by a two- thirds vote of the governing body submitting the pro- posed repeal or formation of a charter commission to a vote of the registered electors of the municipality. (3) The clerk shall, within fifteen working days after the filing of a petition pursuant to paragraph (a) of subsection (1) of this section or paragraph (a) of subsection (2) of this sec- tion, certify to the governing body as to the validity and sufficiency of such petition. (3.5) If the subject matter of the petition is proposed for submission at a regular or special election that will be coordinated by the county clerk pursuant to section 1 -7 -116, C.R.S., and the municipal clerk has certified to the governing body that the petition is valid and sufficient, the clerk shall certify the proposed ballot question to the county clerk and recorder by the fifty -fifth day prior to the coordinated election as provided in section 1 -5 -203 (3), C.R.S., unless the petition has by the fifty-fifth day been determined to be insufficient pursuant to sec- tion 31 -2 -223. Should the petition be found to be insufficient pursuant to section 31 -2 -223 fol- lowing certification to the county clerk and recorder, the election on such question shall be deemed canceled and any votes cast on the question shall not be counted. (4) The governing body shall, within thirty days of the date of adoption of the ordinance or the date of filing of the petition (if the same is certified by the clerk to be valid and sufficient), publish notice of an election upon the amendment or proposal, which notice shall contain the full text of the amendment or statement of the proposal as contained in the ordinance or peti- tion. The election shall be held not less than thirty nor more than one hundred twenty days after publication of such notice; except that, if the proposal is for formation of a charter com- mission, the election shall be held not Less than sixty days after publication of such notice. If the amendment or proposal is initiated by petition and is sought to be submitted at a special election, the election shall be held as near as possible to the approximate date stated in the petition but in any event shall be held within the time limits stated in this subsection (4). Home Rule Handbook 71 (5) The procedure for the forming and functioning of a new charter commission shall com- ply as nearly as practicable with sections 31 -2 -204 to 31 -2 -207, relating to formation and func- tioning of an initial charter commission. (6) If a majority of the registered electors voting thereon vote for a proposed amendment, the amendment shall be deemed approved. If a majority of the registered electors voting thereon vote for repeal of the charter, the charter shall be deemed repealed and the munici- pality shall proceed to organize and operate pursuant to the statutes applicable to a munici- pality of its size. Section 31 -2 -211. Elections general. (1) Except as otherwise specifically provided, all elec- tions held pursuant to this part 2 shall be conducted as nearly as practicable in conformity with the provisions of the "Colorado Municipal Election Code of 1965 (2) All necessary expenses for elections conducted pursuant to this part 2 for existing municipalities or for municipalities incorporated pursuant to part 1 of this article shall be paid out of the treasury of the municipality. (3) A special election shall be called for any election held pursuant to this part 2 when a regular election is not scheduled within the time period provided for such election. Section 31 -2 -212. Initiative. referendum and recall. Every charter shall contain procedures for the initiative and referendum of measures and for the recall of officers. Section 31 -2 -213. Determination of population. When a determination of the population or number of registered electors of the municipality is required under this part 2, said determina- tion shall be made upon the best readily available information by the governing body, clerk, election commissioners, or court, as the case may be. Such determination shall be final in the absence of fraud or gross abuse of discretion. Section 31 -2 -214. Time limit on submission of similar proposals. No proposal for a charter commission, charter amendment, or repeal of a charter shall be initiated within twelve months after rejection of a substantially similar proposal. Section 31 -2 -215. Conflicting or alternative charter proposals. (1) In submitting any charter or charter amendment, any alternative provision may be submitted for the choice of the voters and may be voted on separately without prejudice to others. The alternative provision receiv- ing the highest number of voters, it approved by a majority of the registered electors voting thereon, shall be deemed approved. (2) In case of adoption of conflicting provisions which are not submitted as alternatives, the one which receives the greatest number of affirmative votes shall prevail in all particulars as to which there is conflict. Section 31 -2 -216. Change in classification of municipalities. Notwithstanding the provi- sions of part 2 of article 1 of this title, a town having a population exceeding two thousand may reclassify itself as a city, and a city having a population of two thousand or less may reclassify itself as a town, upon adoption of a home rule charter without otherwise complying with the procedures in said part 2. Section 31 -2 -217. Vested rights saved. The adoption of any charter, charter amendment, or repeal thereof shall not be construed to destroy any property right, contract right, or right of action of any nature or kind, civil or criminal, vested in or against the municipality under and by virtue of any provision of law theretofore existing or otherwise accruing4ruing to the municipality; but all such rights shall vest in and inure to the municipality or to any persons asserting any such claims against the municipality as fully and as completely as though the 72 Colorado Municipal League charter, amendment, or repeal thereof had not been adopted. Such adoption shall never be construed to affect any such right between the municipality and any person. Section 31 -2 -218. Finality. No proceeding contesting the adoption of a charter, charter amendment, or repeal thereof shall be brought unless commenced within forty-five days after the election adopting the measure. Section 31 -2 -219. Additional petition requirements. Any petition to initiate the adoption, amendment, or repeal of a municipal home rule charter, including the formation of a new charter commission, shall be subject to the provisions of sections 31 -2 -220 to 31 -2 -225, in addi- tion to any other requirements imposed by this part 2. Any such petition which fails to con- form to the requirements of this part 2 or is circulated in a manner other than that permitted in this part 2 is invalid. Section 31 -2 -220. Warning on petition—signatures—affidavits--circulators. (1) At the top of each page of a petition to initiate the adoption, amendment, or repeal of a municipal home rule charter, including the formation of a new charter commission, shall be printed, in plain red letters no smaller than the impression of ten point, bold -faced type, the following: "WARNING: IT IS AGAINST THE LAW: For anyone to sign any petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to sign such petition when not a registered elector. DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR: TO BE A REGISTERED ELECTOR, YOU MUST BE: 1. At least eighteen years of age. 2. A citizen of the United States. 3. A resident of the state of Colorado and have resided in the state at least thirty days. 4. A resident of the municipal election precinct in which you live for at least thirty days. 5. Registered to vote pursuant to part 2 of article 2 of title 1, Colorado Revised Statutes. Do not sign this petition unless you have read or had read to you the text of the proposal in its entirety and understand its meaning." (2) Any such petition shall be signed only by registered electors by their own signatures to which shall be attached the residence addresses of such persons, including street and number, if any, city or town, and the date of signing the same. To each such petition shall be attached an affidavit of some registered elector stating the elector's address, that the elector is a regis- tered elector of the municipality or of the territory proposed to be incorporated, that the elec- tor circulated the said petition, that each signature thereon was affixed in the elector's pres- ence, that each signature thereon is the signature of the person whose name it purports to be, that to the best of the knowledge and belief of the affiant each of the persons signing said peti- Home Rule Handbook 73 tion was at the time of signing a registered elector, and that the elector has not paid or will not in the future pay and that the elector believes that no other person has so paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of induc- ing or causing such signer to affix the signer's signature to such petition. No petition shall be accepted for filing that does not have attached thereto the affidavit required by this section. (3) No such petition shall be circulated by any person who is not a registered elector of the municipality or of the territory proposed to be incorporated. Section 31 -2 -221. Form of petition— representatives of signers. (1) Petitions to initiate the adoption, amendment, or repeal of a home rule charter, including the formation of a new charter commission, shall be printed on pages eight and one -half inches wide by eleven inches long, with a margin of two inches at the top for binding; the sheets for signature shall have their ruled lines numbered consecutively and shall be attached to a complete copy of what is proposed, printed in plain block letters no smaller than the impression of eight -point type. Petitions may consist of any number of sections composed of sheets arranged as provided in this section. Each petition shall designate by name and address not less than three nor more than five registered electors who shall represent the signers thereof in all matters affecting the same. No such petition shall be printed, published, or otherwise circulated in a municipality until the clerk has approved it as to form only, and the clerk shall assure that the petition con- tains only the matters required by this part 2 and contains no extraneous material. The clerk shall approve or disapprove such form within five working days of submission. All such peti- tions shall be prenumbered serially, and the circulation of any petition described by this part 2 by any medium other than personally by a circulator is prohibited. (2) Any disassembly of the petition which has the effect of separating the affidavits from the signatures shall render the petition invalid and of no force and effect. Prior to the time of fil- ing, the persons designated in the petition to represent the signers shall attach the sheets con- taining the signatures and affidavits together, which shall be bound in convenient volumes together with the sheets containing the signatures accompanying the same. Section 31 -2 -222. Ballot. Proposals to adopt, amend, or repeal home rule charters, includ- ing the formation of a new charter commission, shall appear upon the official ballot by ballot title only and, if more than one, shall be numbered consecutively in such order as the govern- ing body may provide and shall be printed on the official ballot in that order, together with their respective numbers prefixed in boldface type. Each ballot title shall appear once on the official ballot and shall be separated from the other ballot titles next to it by heavy black lines and shall be followed by the words "yes" and "no" as follows: (HERE SHALL APPEAR THE BALLOT TITLE IN FULL) YES NO Section 31 -2 -223. davit— evidence— protest procedure. (1) All petitions to initiate the adoption, amendment, or repeal of a home rule charter, including the formation of a new charter commission, which have attached thereto an affidavit of some registered elector that 74 Colorado Municipal League each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing such petition was at the time of signing a registered elector shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors, unless a protest in writing, under oath, is filed in the office in which such petition has been filed by some registered elector of the municipality or territory proposed to be incorporated, within thirty days after such petition is filed, setting forth with particularity the grounds of such protest and the names protested. In such event the officer with whom such petition is filed shall mail a copy of the protest to the persons named in such petition as representing the signers thereof at the addresses therein given, together with a notice fixing a time for hearing the protest not less than five nor more than twenty days after such notice is mailed. If, at such hearing, such protest is denied in whole or in part, the person filing the same, within ten days after such denial, may file an amended protest, a copy of which shall be mailed to the persons named in the petition and on which a hearing shall be held as in the case of the original protest; but no person shall be entitled to amend an amended protest. (2) All records and hearings shall be public, and all testimony shall be under oath. The offi- cer with whom such petition is filed shall have the power to issue subpoenas to compel the attendance of witnesses and the production of documents. Upon failure of any witness to obey the subpoena, the officer may petition the district court, and, upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evi- dence. Failure to obey the order of court shall be punishable as a contempt of court. Hearings shall be had as soon as is conveniently possible and must be concluded within thirty days after the commencement thereof, and the result of such hearings shall be certified to the persons representing the signers of such petition. In case the petition is declared insufficient in form or number of signatures of registered electors, it may be withdrawn by a majority in number of the persons representing the signers of such petition and, within fifteen days after the insuffi- ciency is declared, may be amended or additional names signed thereto as in the first instance and refiled as an original petition. The finding as to the sufficiency of any petition may be reviewed by the district court of the county in which such petition is filed, but any such review shall be timely made, and, upon application, the decision of such court thereon shall be reviewed by the supreme court. Home Rule Handbook 75 Appendix D Home Rule Municipalities in Colorado* Through 1999, 78 of Colorado's 269 municipalities had adopted a home rule charter. These 78 municipalities represent approximately 90 percent of the municipal population of the state. Approximately two- thirds of the state's entire population lives within a home rule municipali- ty Alamosa (City) Council- Manager Arvada (City) Council- Manager Aspen (City) Council- Manager Aurora (City) Council- Manager Avon (Town) Council- Manager Boulder (City) Council- Manager Breckenridge (Town) Council- Manager Broomfield (City) Council- Manager Burlington (City) Mayor Council Canon City (City) Council- Manager Castle Rock (Town) Council- Manager Central City (City) Mayor Alderman- Manager Chevy Hills Village (City) Council- Manager Colorado Springs (City) Council- Manager Commerce City (City) Council- Manager Cortez (City) Council Manager Craig (City) Council- Manager Crested Butte (City) Council- Manager Dacono (City) Mayor Council Delta (City) Council- Manager Denver (City) Mayor-Council Dillon (Town) Council- Manager as of Jan. 1, 2000 Durango (City) Council- Manager Edgewater (City) Mayor Council Englewood (City) Council- Manager Evans (City) Council- Manager Fort Collins (City) Council- Manager Fort Morgan (City) Mayor Council Fountain (City) Council Manager Frisco (Town) Council- Manager Fruita (City) Council- Manager Glendale (City) Council- Manager Glenwood Springs (City) Council- Manager Golden (City) Council- Manager Grand Junction (City) Council- Manager Greeley (City) Council- Manager Greenwood Village (City) Council- Manager Gunnison (City) Council- Manager Gypsum (Town) Mayor Council Holyoke (City) Mayor Council Lafayette (City) Mayor Council La Junta (City) Council Manager Lakewood (City) Council- Manager Lamar (City) Mayor Council Home Rule Handbook 77 Larkspur (Town) Mayor Council Littleton (City) Council- Manager Lone Tree (City) Council- Manager Longmont (City) Council- Manager Loveland (City) Council- Manager Manitou Springs (City) Mayor Council Mintum (Town) Mayor Council Monte Vista (City) Council- Manager Montrose (City) Council- Manager Mountain View (Town) Mayor Council Mountain Village (Town) Mayor Council Mt. Crested Butte (Town) Council- Manager New Castle (Town) Mayor Council Northglenn (City) Council- Manager Ophir (Town) General Assembly Parker (Town) Council- Manager Pueblo (City) Council- Manager Ridgway (Town) Council- Manager Rifle (City) Council- Manager Silverthome (Town) Council- Manager Snowmass Village (Town) Council- Mayor Manager Steamboat Springs (City) Council- Manager Sterling (City) Council- Manager Telluride (Town) Council- Manager Thornton (City) Council- Manager Trinidad (City) Council- Manager Vail (Town) Council- Manager Ward (Town) General Assembly Westminster (City) Council Manager Wheat Ridge (City) Council- Manager Winter Park (City) Council- Manager Woodland Park (City) Council- Manager Wray (City) Council- Manager Yuma (City) Council Manager 78 Colorado Municipal League Colorado Population Figures and Percentages includes Lone Tree, which adopted home rule in April 1998 and New Castle, which adopted home rule in January 1999 Percentage of IVIunicipal Residents Who Live in'a Home Rue Ci or To n 65% 65% 65 69°I 79°/ 83° 90% 91% 1920 1930 1940 1950 1960 1970 1980 1990 1998 The first 10 home rule municipalities in Colorado were Denver (1904), Colorado Springs and Grand Junction (1909), Pueblo (1911), Durango (1912), Delta and Fort Collins (1913), Montrose (1914), Boulder (1918), and Monte Vista (1922). Prepared by Colorado Municipal League December 1999 Home Rule Handbook 79 1920 1930 1940 1950 1960 1970 1980 1990 1998 State Population 939,191 1,035,791 1,123,296 1,325,271 1,771,158 2,224,610 2,907,856 3,304,042 4,015,152 Municipal Population 566,802 641,847 722,237 888,269 1,212,609 1,656,548 2,120,347 2,383,045 2,865,944 of State Population in Municipalities 60.35% 61.97% 64.30% 67.03% 68.46% 74.46% 72.92% 72.13% 71.38% Home Rule Municipal Population 368,392 418,667 466,627 610,252 875,871 1,301,486 1,757,578 2,132,834 2,605,452 of State Population in Home Rule Municipalities 39.22% 40.42% 41.54% 46.05% 49.45% 58.50% 60.44% 64.55% 64.87% of Municipal Population in Home Rule Municipalities 64.99% 65.23% 64.61% 68.70% 72.23% 78.57% 82.89% 89.50% 90.91% Number of Home Rule Municipalities 9 10 10 13 22 38 56 68 78' Colorado Population Figures and Percentages includes Lone Tree, which adopted home rule in April 1998 and New Castle, which adopted home rule in January 1999 Percentage of IVIunicipal Residents Who Live in'a Home Rue Ci or To n 65% 65% 65 69°I 79°/ 83° 90% 91% 1920 1930 1940 1950 1960 1970 1980 1990 1998 The first 10 home rule municipalities in Colorado were Denver (1904), Colorado Springs and Grand Junction (1909), Pueblo (1911), Durango (1912), Delta and Fort Collins (1913), Montrose (1914), Boulder (1918), and Monte Vista (1922). Prepared by Colorado Municipal League December 1999 Home Rule Handbook 79 Appendix E Time Schedules ADOPTING A HOME RULE CHARTER Within 30 days after initiation Call an election on forming the charter commission and on commission members. 31 -2- 204(2). Before publishing notice of the election Divide the municipality into compact districts of approximately equal population6ion if so required by the initiating petition or ordinance. 31- 2- 206(2). At least 60 days prior to the election Publish first notice of the election. 31- 2- 204(2). Within 30 days after publication of the first election notice Nomination petitions and consent to serve statements must be filed with the municipal clerk. 31- 2- 204(3). As soon as possible after the filing of nomination petitions is completed Publish a second notice of election with names of nominated candidates. 31 -2- 204(3). Within 120 days after publication of the call for an election Election on charter commission and commission members to be held. 31 -2- 204(2). Within 20 days after the election Governing body must call the first meeting of the charter commission to be held within said twenty days. 31 -2- 206(4). While preparing the charter Charter commission must hold one or more public hearings. 31- 2- 206(9). Within 120 days after the election Charter commission must submit proposed charter to the governing body. 31 -2- 206(10). Within 30 days after submission of the proposed charter Call an election on the charter and publish notice of the election including the text of the proposed charter. 31 -2- 207(1). Not less than 30 nor more than 120 days after publication of the notice of election Election on the charter must be held. 31- 2- 207(1). [If the charter is defeated, the time limits for submitting and voting on a revised proposed charter are the same as for submitting and voting on the original proposed charter. 31 -2- 207(3)] Home Rule Handbook 81 Within 20 days after election approving proposed charter or revised proposed charter File a certified copy of the adopted charter with the secretary of state and the municipal clerk. 31 -2- 208(1). Within 45 days after the election approving the proposed charter or revised proposed charter Proceedings to contest adopted charter must be commenced. 31 -2 -218. Within 12 months after rejection of the revised proposed charter No substantially similar proposal shall be initiated. 31 -2 -214. AMENDING A HOME RULE CHARTER Within 30 days after initiation Publish notice of and call an election on the amendment (notice must include the text of the amendment). 31- 2- 210(4). Not less than 30 nor more than 120 days after publication of the notice of election Hold an election on the amendment. 31 -2- 210(4). Within 20 days after the election approving the amendment File a certified copy of the approved amendment with the secretary of state and the municipal clerk. 31- 2- 208(1) and (3). Within 45 days after the election approving the amendment Any proceedings to contest an adopted amendment must be commenced. 31 -2 -218. Within 12 months after the election rejecting the amendment No substantially similar amendment may be initiated. 31 -2 -214. REPEALING A HOME RULE CHARTER Within 30 days after initiation Publish notice of and call an election on the repeal measure. 31 -2- 210(4). Not less than 30 nor more than 120 days after publication of the notice of election Election on repeal measure to be held. 31 -2- 210(4). After approval of repeal measure Municipality shall proceed to organize and operate as a statutory municipality of its size. 31 -2- 210(6). Within 20 days after the election approving the repeal File certified copies of the approved repeal measure with the secretary of state and the municipal clerk. 31 -2- 208(1) and (3). Within 45 days after the election approving the repeal Any proceedings to contest the approved repeal measure must be commenced. 31 -2 -218. Within 12 months after rejection of the repeal measure No substantially similar repeal mea- sure may be proposed. 31 -2 -214. FORMING A NEW CHARTER COMMISSION Before publishing notice of election Governing body must divide the municipality into dis- tricts of approximately equal population if required to do so by the initiating petition or ordi- nance. 31 -2- 206(2). 82 Colorado Municipal League Within 30 days after initiation Publish notice of and call an election on forming a new charter commission and on commission members. 31- 2- 210(3)(4). Not less than 60 nor more than 120 days after publication of the notice of election Election to be held on new charter commission and commission members. 31- 2- 210(4). Time schedules for the formation and functioning of a new charter commission and for the election on a new charter are the same as those time schedules used when adopting the origi- nal charter. 31 -2- 210(5) ADOPTING A HOME RULE CHARTER AT THE TIME OF INCORPORATION Time requirements for incorporating and time requirements for adopting a home rule char- ter should be followed as closely as possible. Note the special provisions of 31 -2 -209, summa- rized on page 36 of this handbook. Home Rule Handbook 83 Appendix F Sample Ordinance Initiating the Adoption of a Home Rule Charter (Material enclosed in brackets or parentheses is optional.) AN ORDINANCE INITIATING THE ADOPTION OF A HOME RULE CHARTER FOR CITY (TOWN) OF AND PROVIDING FOR THE ELECTION OF CHARTER COMMISSION MEMBERS. WHEREAS, the Municipal Home Rule Act of 1971, C.R.S. 1973, 31 -2 -201 et seq., as amended, authorizes the City Council (Board of Trustees) to initiate, by ordinance, the adoption of a home rule charter; and WHEREAS, the City Council (Board of Trustees) desires to initiate the adoption of a home rule charter for the City (Town) of Now, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL (BOARD OF TRUSTEES) OF THE CITY (TOWN) OF SECTION 1: INITIATION OF HOME RULE. That the following question be submitted to a vote of the registered electors of the City (Town) of in accordance with the provisions of Article XX of the Colorado Constitution and the Municipal Home Rule Act of 1971, at the general (a special) election to be held on the day of 20_; Shall the City (Town) of form a home rule charter commission? SECTION 2. COMMISSION MEMBERS. That at such election, the registered electors shall also elect a total of members to the charter commission members to be elected by and from each district to be created in accordance with the Municipal Home Rule Act prior to such election, (and members to be elected at- large),] to take office if the formation of the charter commission is approved by the qualified electors. (Add any other usual sections including effective date and standard signature and authentica- tion provisions.) Home Rule Handbook 85 Appendix G Sample Petition Initiating the Adopting of a Home Rule Charter The general form of a petition initiating the adoption of a home rule charter will be the same as a regular initiative petition. The following is a sample of the substantive content of a petition initiating the adoption of a home rule charter. (Material enclosed in brackets or parentheses is optional.) PETITION To: The City Council (Board of Trustees) of County, State of Colorado. We, the undersigned, in accordance with the provisions of Article XX of the Colorado Constitution, and the Municipal Home Rule Act of 1971, do respectfully submit to and demand the City Council (Board of Trustees) call an election of the registered electors of the City (Town) of on the question of whether the City (Town) shall form a home rule charter commission and for the purpose of electing members of the charter com- mission if formed. [We additionally submit to and demand the City Council (Board of Trustees), prior to the election on the charter commission and commission members, to divide the City (Town) into districts of approximately equal populations, members of the charter com- mission to be elected by and from each district (and members to be elected at large).] The ballot title and submission clause for the proposal petitioned for herein is as follows: Shall the City (Town) of form a home rule charter commission? [The regular initiative petition then contains various clauses and pages for signatures of the electors, their addresses, and the date of signing the petition.] Home Rule Handbook 87 Appendix H Sample Organizational and Procedural Rules for the Charter Commission RULES ADOPTED BY THE CASTLE ROCK CHARTER COMMISSION 1. Officers A. Officers and Tenure The Officers of the Charter Commission shall be the Chairman, Vice Chairman, Secretary and Treasurer. These officers, elected at the first meeting, will hold office for the entire time of the Commission until its adjournment sine die. B. Duties of Officers Chairman shall: 1. Preside at all meetings; 2. Appoint all committees not otherwise provided for; 3. Carry out assignments and instruction given to him by vote of the Commission; 4. Perform such other duties as customarily pertain to the office of Chairman. Vice Chairman shall: 1. Be an aide to the Chairman; 2. In case of the absence of disability of the Chairman, pro tempore assume and perform the duties of the Chairman; 3. Perform as Chairman of the Calendar Committee. Secretary shall: 1. Be responsible for the record of the proceedings of all meetings; 2. Be responsible for issuing notices of meetings and agenda. Treasurer shall: Home Rule Handbook 84 1. Perform as Chairman of the Finance Personnel Committee. 2. Submit the Commission budget to City officials and secure from the City Council needed City funds to meet reasonable expenses of the Commission. 2. Meetings A. Time and Place: At least one regular meeting will be held each week, promptly at 7:00 p.m. on alternate Mondays and Wednesdays. The place of such meetings to be the Council Chambers of the City Hall, unless members are otherwise notified by the Secretary or someone desig- nated by him. B. Nature of Meetings: 1. Agenda as follows: a. Call to Order b. Roll Call c. Approval of published Minutes of all meetings of the week previous to, and includ- ing Saturday last, ant the first meeting of the week d. Program as designated by Calendar Committee e. Report of Committees f. Unfinished business g. New business h. Adjournment 2. Programs of Meetings: The Calendar Committee shall, upon request of the officers, or the members, make all arrangements for speakers, material, and /or equipment necessary for programs of the meetings. This Committee will, unless otherwise directed, provide in the Agenda the theme of each meeting, and will provide for such public hearings as may be found necessary. 3. Committees Committees are appointed by the Chairman; committees to name their Chairmen. All Committees should be encouraged to submit all reports in writing and, where possible, deliv- ered to the members individually prior to the meeting of its report. a. Government Elections b. Administrative Council Procedures c. Legal Judiciary d. Budget Finance The Committees will be charged with the responsibility of drawing proposed Charter provi- sions as submitted and approved by a majority of the members. Every practical attempt should be made to accomplish such drafting on time for submission to the members under the same conditions as those for publication and approval of the Minutes of the preceding meetings. e. Calendar Committee: The Calendar Committee will consist of the Chairman, Vice Chairman and the four committee Chairman. This Committee shall submit a tentative schedule of program sub- 90 Colorado Municipal League jects to be followed by the Commission. This schedule may be altered at any time by a majority vote of the members. Speakers, equipment and material necessary for the pro- grams will be arranged for by the Committee. The Committee shall authorize all consul- tant services, subject to the approval of the Commission. The Committee may, as part of the program, propose a subject for consideration by the Commission, but will not submit it to the Drafting Committee for refinement prior to bringing it before the members. f. Finance and Personnel Committee: The Finance and Personnel Committee will consist of the Chairman, Vice Chairman, Secretary and Treasurer. This Committee shall submit the commission budget to proper City officials, securing from the City Council needed City funds to meet the reasonable expenses of the Commission, hiring or securing consultants, as authorized by the Calendar Committee, on either a full time or part-time basis and making arrangements either with the City or independently for necessary clerical and stenographic help. Special Committees: From time to time, special study and functioning committees may be appointed at the discretion of the Chairman or by majority vote of the members. 4. Quorum For any meeting of the Commission, a quorum shall consist of eleven members. (Under the Municipal Home Rule Act, a quorum consists of a majority of the Commission members. 31- 2- 206(4).) 5. Amendments These rules may be suspended at any meeting for a specific purpose by majority vote of the members. The results of such suspension will extend beyond the time of theat meeting. The rules may be amended by majority vote, provided they are proposed at one meeting and adopted by a majority vote at the next. 6. Parliamentary Authority and Rules of Voting All questions not covered by these rules shall be decided by Roberts Rules of Order. 7. Submission of Committees' Drafts The Chairmen of the respective committees shall submit the work of the four drafting com- mittees to the Commission, section by section, one section at a time. a. If no objection is voiced by any member of the Commission, such section of the Charter as was presented shall be deemed tentatively approved. b. If an objection or objections to said section is announced, the same shall be discussed and voted upon in accordance with Robert's Rules of Order. c. Once a section of the Charter has been tentatively approved, it shall not be brought up for further discussion until the entire Charter has been tentatively approved. d. Once the entire Charter has been tentatively approved, section by section, it shall be reviewed, section by section, for additional amendments or final approval. Once a section has been approved on review, it shall not be considered again unless a majority vote of the members present so desire. g• Home Rule Handbook 91 e. The Charter shall then be submitted, in toto, for approval by the entire Charter Commission. 92 Colorado Municipal League Appendix I Summary of General Arguments For and Against Home Rule GENERAL ARGUMENTS FOR Article XX of the Colorado Constitution grants both general and specific powers to home rule municipalities, providing them greater flexibility when seeking solutions to local problems. These powers allow home rule municipalities to shape such solutions to fit local needs, without involving the state legislature or being subjected to undesirable limitations imposed statewide. Home rule allows municipalities to respond more quickly to changed circumstances or emergency situations by allowing legislative solutions at the local level through ordinances or charter amendments, rather than waiting for action by the state legislature. Home rule municipalities are not required to follow state statutes in matters of local and municipal concern and therefore enjoy freedom from state interference regarding local and municipal matters. The express and implied enabling authority granted to municipalities in state statutes is sometimes ambiguous; home rule allows the municipality to act with greater assurance that its actions are properly authorized, especially if the charter reserves to the munici- pality authority to legislate on any and all matters of local concern. By empowering local citizens more directly, home rule enhances citizen control, inter- est, involvement, and pride in their municipal government. Home rule is the embodiment of the principle that the best government is the one that is the closest to the people. Home Rule Handbook 93 GENERAL ARGUMENTS AGAINST If a restrictive charter is adopted, the potential flexibility offered by home rule may be lost. Once adopted, the charter may serve as a vehicle for dissatisfied citizens to further limit the authority of the municipality in general and elected officials in particular through the adoption of binding charter amendment, i.e. amendments which cannot be changed or repealed by the governing body without a subsequent vote of the people. The lack of definite limits on home rule powers may constitute a disadvantage to a municipality by creating legal uncertainty when the municipality legislates in a relative- ly new area; the ultimate determination of whether a matter is truly of "local concern" requires an ad hoc determination in court. The process of adopting a home rule charter involves some costs to the municipality— attorney's or other consultant's fees, expenses incurred from publication requirements, election costs, etc. can be a burden on the municipality. The prospect of an existing municipality adopting a home rule charter requires some change from the status quo along with the need to debate potentially volatile issues related to the structure and powers of the municipality, and therefore may be per- ceived as creating unnecessary risks in a community that is satisfied operating under existing statutes. Unless restricted by the charter, a home rule municipality has the potential to exercise more governmental powers than are available to statutory municipalities, which some local citizens may see as a disadvantage. 94 Colorado Municipal League Appendix J Examples of Additional Authority and Flexibility Afforded to Home Rule Municipalities ORGANIZATION STRUCTURE Set forth legislative and administrative structure and authority. Set forth disqualifying circumstances for elected officials (some typical disqualifications include convictions for embezzlement of public funds, bribery, perjury, solicitation of bribery, subordination of perjury), as well as grounds and procedures for discipline or removal from office. Expand or contract the number and types of elected offices. Modify or clarify procedures for filling vacancies in elective offices that occur mid- term. Change the date when newly elected officials take office. Provide procedures for the appointment, tenure, and removal of municipal judges and clarify the causes for removal. Provide flexibility regarding the governing body being elected at- large, by districts, or by combination of at -large and by districts, the frequency of and procedures for redis- tricting, and number of councilmembers or trustees. Specify minimum age for elected officials. Provide additional flexibility and clarification regarding powers of mayor, council, man- ager, other officers and boards and commissions. Provide clear authority for towns to adopt the council /manager form of government. Home Rule Handbook 95 Modify composition and powers of planning commission, board of adjustment and other land use related offices. (Statutory municipalities already enjoy some flexibility per C.R.S. 31 -23- 206(4) and 31 -23- 307(1).) ELECTIONS Establish regular election dates at times other than the dates required by statute (i.e., April of even- numbered years for towns, November of odd numbered years for cities). (Not only does this provide local flexibility, but if the regular election date is other than November, it allows TABOR election issues to be voted on at times when other state and local issues are not on the ballot.) Provide additional flexibility for dates of special elections which are not TABOR relat- ed. Modify election requirements, including procedures for initiative, referendum and recall. (Statutory municipalities also have some flexibility to alter procedures for initia- tive and referendum.) Expand the right to vote in municipal elections; for example, allow nonresidents to vote. Expand certain citizen powers, like initiative, referendum, and recall. PROCEDURES Simplify or modify various publication requirements, including more streamlined pro- cedures for adoption of codes by reference. Modify requirements for enactment of local ordinances to expedite consideration and effective dates, such as one reading procedure for emergency ordinances in cities (a single reading is all that is currently required for statutory towns). Resolve legal doubt or strengthen the argument that the municipality by charter or ordinance may delegate decisions to administrative staff. Clarify circumstances when ordinance /resolution /motion is required or permitted and allow additional actions by motion or resolution rather than by ordinance. Provide flexibility or clarification in terms of quorum and voting requirements for city councils and boards of trustees. Repeal or modify statutory provisions governing bidding and awarding of public pro- jects and disposal of public property. Establish local zoning, subdivision, and other land use procedures which are different from those applicable to statutory municipalities. Clarify or narrow purposes for which executive sessions may be held. Provide a binding instrument through charter enactment or amendment to proscribe various powers and mandate procedures which will apply and bind elected officials. FINANCES Allow local collection and enforcement of sales taxes. Allow broader or narrower sales tax base (subject to voter approval if tax base is broad- ened). 96 Colorado Municipal League Allow broader use tax base (subject to voter approval) since the use tax for statutory cities and towns is limited to motor vehicles and construction materials. Establish differential sales tax rates applicable to certain transactions, such as for food or lodging. Authorize the combined state /county /municipal sales tax rate to exceed the 7% statuto- ry limit (subject to voter approval of any increase). Allow additional types of excise taxes, such as admissions, tourism and lodgers taxes, measured on percentage of sales (subject to voter approval). Increase, eliminate or modify statutory property tax limits (subject to TABOR limits). Prohibit one or more types of taxes that the community dislikes. Clarify, simplify, or otherwise revise procedures for budget and appropriation adop- tion, amendment, and transfer of funds. Authorize property and other tax refunds and exemptions not specifically authorized by state law. Clarify or broaden authority to create municipal enterprises. Broaden authority to impose and enforce municipal liens to facilitate collection of delinquent fees, taxes and charges. Strengthen legal authority to impose development impact fees. Specify salaries of elected officials. Increase general obligation bond authority of municipalities (subject to voter approval). Facilitate formation of special improvement districts and expand purposes for which districts may be formed. Streamline requirements for issuance of bonds and other financial obligations. MISCELLANEOUS POWERS Broaden eminent domain powers, including power to condemn property outside municipal boundaries. Establish alternative procedures for management and operation of municipal utilities, both within and without the municipality. Impose terms and conditions of municipal employment, including residency require- ments. Establish voter approval requirements for utility franchises. Set forth mandatory maximum terms for franchises (such as ten years) to avoid argu- ments concerning or negotiations over longer term franchises. Broaden jurisdiction of municipal courts (to permit, for example, increased nuisance abatement authority). Provide additional tools for economic development activities. Clarify authority for or expand the types of services which the municipality can provide, such as economic development and human services. Home Rule Handbook 97 Provide broader authority and flexibility with respect to civil service or other personnel systems, including collective bargaining, and regarding retirement and fringe benefit programs. Set forth additional or more specific ethics and conflict of interest provisions. Broaden land use regulatory authority. 98 Colorado Municipal League Appendix K Home Rule Brochure Sample from City of Loveland The following Loveland home rule brochure was originally published by the Loveland Home Rule Advisory Committee and is reprinted with permission of the city of Loveland. Home Rule Handbook 99 100 6 key facts 6 questions about home rule Key Points 1 Home rule is about local control. 2 Currently there are 74 Colorado communities (representing approxi- mately 90% of the state population) with home -rule charters. No commu- nity in the state has ever decided to go back to being a statutory city. 3 Existing ordinances not modified by the charter will remain in effect. 4 For more information, watch the local media for notices of public meetings. Remember, you can also call 962 -2750, ext. 136, (day or night) for information or to ask questions that will later be answered in "Dateline: Loveland" in the Reporter Herald. Published by the Loveland Home Rule Advisory Committee. Printed on recycled paper Colorado Municipal League Fact #1: Loveland is a "statutory" city, which means its authority to act comes from statewide statutes written by Colorado legislators. Therefore, Loveland must look to statewide statutes in dealing with local matters. If no statute exists regarding a certain problem or issue, the city's hands are tied. As Loveland has grown, trying to find statutes that cover every local situation is becoming more difficult. Fact #2 Home -rule cities operate under a charter written by local citizens elected to a charter commission. The charter must be approved by registered voters. The charter may be amended by voters at a later date, although this rarely happens within Colorado home -rule cities. Home -rule charters refer only to local matters. Cities with home rule must still abide by federal laws and to state laws that apply to statewide matters. Fact #3: The Loveland City Council may ask local voters to consider changing from a statutory to a home -rule city. In that event On November 7, 1995, registered voters will decide for or against forming a charter commission. A vote against a charter commission means Loveland will remain a statutory city. On that same day voters will elect a charter commission that will serve only if those same voters decide to change to a home -rule charter. If voters choose to form a charter commis- sion, the elected group will submit a pro- posed city charter to city council within 120 days of the November 7 election. After the proposed charter is submitted, registered voters will decide whether or not to adopt the charter submitted to the city council. Adopting home rule would not require a change in Loveland's form of government. The city will pay the costs related to home -rule elections. Fact #4: Loveland is the largest statutory city in Colorado. •As of February 1995, Colorado has 74 home -rule cities, including many with smaller populations than Loveland. No home -rule city in Colorado has decided to revert back to being a statutory city. Fact #5: A vote for home rule is NOT a vote for higher taxes. Home rule in no way overrides the provisions of Amendment 1, which requires that new taxes, as well as taxes resulting in an increase in revenue above defined limits, are subject to a vote of the people. Home -rule cities have reported savings in legal expense because time- consuming research of state statutes is less frequent. Home -rule cities can also save significant dollars by handling city sales -tax collection themselves, an option not available to statutory cities. Fact #6 Home rule allows for greater local control. On matters of local concern, the city does not have to rely on what state statutes mandate. Local citizens create and approve their own city's charter. Home -rule cities have broad authority to regulate the powers, duties and terms of municipal officers, agents and employees. Home Rule Handbook 101 102 Question #1: Why is Loveland considering home rule now? One of the "Agenda for the 90's" goals was to "explore the possibility of Loveland becoming a home -rule community." In January 1994 the City Council appointed a Home Rule Advisory Committee of citizens to review the pros and cons of home rule. The committee recommended to the city council that the issue of home rule be submitted to the voters. Question #2: What is the city council's role? The charter proposed by the charter commission will be approved or disapproved 'by citizens in the election booths, not by the city council. If a home -rule charter is approved, it will serve as the city council's governing document. Question #3: What about the charter commission? Based on Loveland's population, up to 21 members will be elected. Candidates must be nominated by a petition signed by at least 25 registered electors. The deadline for petitions to be filed is August 21, 1995 (assuming publica- tion of election notice on July 22, 1995). The commission's task will be to write a proposed city charter that will be approved or disapproved by local voters. Question #4: What is the home -rule time line? •August 21, 1995 Deadline for charter commission candidates to file completed petitions. (continued on next panel) November 7, 1995 Election as to whether to form a charter commission and elect up to 21 commission members. If not passed, the time line is completed. March 5, 1996 Last .date for submission of the proposed charter from the charter commission to the city council. By mid 1996 Special election to vote on whether to approve the proposed charter. (Note: these dates are subject to change.) Question #5: What are some arguments against home rule? Loveland has functioned well as a statutory city. If it is not broken, don't fix it. There is some cost associated with adopting a home -rule charter. If the adopted charter is not done broadly or reflects narrow self interest, it could be even more restrictive than the state statutes. This would defeat the advantages of home rule. Home -rule charters can only be amended by election and approval of the majority of the electorate. Question #6: How do I find out more about Loveland's home rule? Home rule will be a major topic discussed at ward meetings beginning in March 1995. Other public meetings will be held in coming months. Check the local media for times and locations. "Dateline: Loveland," a City of Loveland page that appears in the Reporter Herald on Saturdays, will periodically cover the home -rule story. Call 962 -2750, ext. 136, (day or night) for recorded information about schedules and time lines. Callers may also leave questions, which will be answered in "Dateline: Loveland." Colorado Municipal League MEMORANDUM OF UNDERSTANDING MEMORANDUM OF UNDERSTANDING This (“MOU”) is made and entered into this ____day of ____________, 2011in order to memorialize the understanding of the relationship between WINTER PARK -FRASER VALLEY CHAMBER OF COMMERCE the (hereinafter “Chamber”) TOWN OF FRASER,Board of Trustees andby and through its(hereinafter “TOWN”). RECITALS: WHEREAS,the TOWN has been a funding contributor to the CHAMBER; and WHEREAS,the TOWN and CHAMBER seek to confirm the mutual understanding of the working relationship between the parties; and WHEREAS, The Town and the Chamber acknowledge and agree that a material precipitating factor behind the parties' mutual desire to enter into this Memorandum was and is the need to publicly acknowledge and support the notion that the Chamber is involved in many different types of marketing efforts and opportunities. These efforts and opportunities range from the placement of ads, the publication and distribution of collateral and the development of a strong public relations presence in order to lure guests to the valley, to the furnishing of critical information about the businesses represented by the Chamber and the staging of meaningful, enjoyable activities for guests once they are physically present in the valley. The Town agrees to publicly acknowledge the importance of all of these different types of marketing (including the administrative and operational costs of providing these marketing services) to the success of the Winter Park/Fraser Valley business community. WHEREAS,the TOWN and CHAMBER seek to improve the local business climate through a collaborative partnership. NOWTHEREFORE BE IT AGREED ASFOLLOWS: UNDERSTANDINGOF THE PARTIES: 1.The TOWN will, subject to annual appropriations, provide annual funding contributions to the CHAMBER as follows: a.The Vendor Fees (3.33% of municipal sales tax collections) shallbe remitted quarterly to the CHAMBER. Such funds shall be dedicated to Marketing and Sales Programs. b.In 2011, the TOWN allocated $15,000 of the funding identified in (a) above toward Business Enhancement Programs for specific programs yet to be determined. c.$15,000 from the TOWN’s General Fund shall be remitted _________ to the th CHAMBER to fund Special Events in the Fraser Valley (4 of July, Run for Independence, Fraser River Days). d.$10,000 from the TOWN’s General Fund shall be remitted _________to the CHAMBER to fund the Fraser Picnic in the Park Series (which includes six events during the months of July and August). 1 e.The CHAMBER and/or TOWN may propose additional programs that may require additional funding. The TOWN may, at its discretion, elect to fund such additional programs. 2.The TOWN commits the to the following: a.The TOWN acknowledges the importance of CHAMBER marketing programs to the success of the Fraser Business Community. b.The TOWN will designate a representative to the Marketing/Sales Counciland the Special Events Committee. c.The TOWN will actively work to develop cooperative relationships with the Fraser Business Community and will include the CHAMBER in these efforts. d. e. f. g. 3.The CHAMBER commits to the following: a.The CHAMBER will actively seek to include representation from the Fraser Business Community on the CHAMBER Board and Committees. b.The CHAMBER is dedicated to seeking ways to retain, expand, and recruit local business within the Fraser Business Community. c.The CHAMBER will implement and manage marketing and sales programs and special events with the goal of enhancing the local economy throughout the Fraser Valley in the Town of Fraser. d.The CHAMBER will provide monthly updates to the Town Board. e.The CHAMBER will annually submit a detailed budget proposal to the TOWN no st later than September 1and will review the proposed budget and programs with the Budget Committee of the TOWN. Additionally, the CHAMBER will submit a year end report and summary of the results of the program to the Town Board no st later than March 1(?) f. g. h. 4.This agreement does not provide any waiver of governmental immunity as provided by Colorado Statutes.This agreement provides no conveyance of property rights and is not assignable. 5.This Memorandum of Understandingshall automatically renew for additional one-year periodsbeginning January 1, 2012, without limitation unless (1) either party notifies the other, in writing at least 60 days prior to the annual expiration date, of its decision not to renewfor the ensuing year, or (2)the TOWN fails to budget and appropriate funds for its share of expenses as provided above. 6.Any notice orcommunications regarding this agreementshall be in writing and shall be either personally delivered, sent by certified United States mail, return receipt requested, to the addresses set forth below, or by facsimile to the numbers set forth below: To the CHAMBER:To the TOWN: Winter Park-Fraser Valley ChamberThe Town of Fraser 2 P.O. Box 3236P.O. Box 370 Winter Park, CO 80484Fraser, CO 80442 Theterms outlined within this agreement have been accepted and agreed to by the following partieson this ____day of_______________, 2011: TOWN OF FRASER ____________________________ Fran Cook Mayor ATTEST: _______________________ Lu Berger, Town Clerk [S E A L] WINTER PARK -FRASER VALLEY CHAMBER OF COMMERCE ___________________________ President STATE OF COLORADO) ) ss. COUNTY OF ____________) Acknowledged before me on ________________, 2011, by ____________________, as (date of signing) (name of signer) _____________________ for the ____________________. Title (owner/president)(company) Witness my hand and official seal. My commission expires: [S E A L]Notary Public 3 TOWN OF FRASER RESOLUTION NO.2011-04-01 A RESOLUTION AUTHORIZING EXPENDITURES FOR THE FRASER RIVER BANK STABILIZATION PROJECT AND AUTHORIZING THE TOWN MANAGER TO ENTER INTO A CONTRACT WITH FIVE RIVERS. WHEREAS, High water events in the Fraser River place public property and safety at risk, and WHEREAS, Five Rivers completed aquatic habitat enhancements within the Fraser River in the Town of Fraser that have proven very successful. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THAT: 1.The Town Board of Fraser, Colorado herebyauthorizes the Town Manager to enter into contract with Five Rivers to complete Fraser River Bank Stabilization work in an amount not to exceed $30,000. 2.All documents must be executed and work completed within fiscal year 2011 or this approval shall no longer be effective. TH DULY MOVED, SECONDED AND ADOPTED THIS 6DAY OFApril, 2011. Votes in favor: ___BOARD TRUSTEES OF THE Votes opposed: ___TOWN OF FRASER, COLORADO Absent:___ Abstained: ___BY: Mayor ATTEST: (S E A L) Town Clerk Atte TO: Mayor Cook and Board of Trustees FROM: Allen Nordin, Director of Public Works DATE: April 6, 2011 SUBJECT: Supplement to Public Works Briefing: 2011 Street CIP Recommendation Following is an outline of recommended street improvement projects based on the 2011 budgetary appropriation of $250,000 for the Capital Improvement Plan for street maintenance. Bid packets are being prepared for two individual projects: Double and Single Chip Seal applications and Drainage Swale Improvements. If approved, the Invitation to Bid will be posted in the local paper as well as the Town's website beginning Thursday April 14 Following the 30 days required notice, the bid opening will be scheduled for May 16 2011. All bids will be evaluated and the award (or rejection of any or all bids) will be made within 45 days from the date they were opened. Scheduling of the projects would be coordinated with the successful contractor's schedule. Anticipate for the work to be scheduled during the months of June /July. Double Single Chip Seal Project Chip seal is a surface application used to maintain, protect and prolong the life of a street. It improves skid resistance, protects the asphalt from further oxidation, improves the overall appearance while providing a weatherproof membrane to repel moisture and can extend the useful life of the existing pavement between 7 to 10 years. There are two different types of chip seal application, a singles chip and a double chip. The double chip seal application is a three step process: 1) the first layer application is an asphalt emulsion with a inch fractured aggregate embedded into the asphalt; 2) a second layer of asphalt is applied over the base layer using a smaller 3/8 inch fractured aggregate; 3) the final application is called a `fog seal coat' which is applied over the final lift after the loose chips are swept off which will provide a weatherproof seal over the chip seal product. This final 3/8 inch application will provide for a smoother finished driving surface. The single chip application utilizes a 3/8 inch chip with a lighter application of asphalt emulsion. After sweeping off the loose chips the fog seal is applied. This provides the weatherproof seal over the chip seal product. Following the fog seal coat, traffic can usually be put back on the street in as little time as 30 minutes. The need to close streets for this work can be minimized or even avoided. Sweeping and traffic control are included in the bid; however, these items could be performed by PW staff which would help to reduce costs. F owo otl ...Ira sor Box ri "70, II'rasaor, CO 80442 office 970-726-5491 970-726-5 www „f ascrccllcrado co The proposed project is for the two types of applications: a double chip seal application to approximately 23,200 square yards (approx 1 '/2 miles) of high volume streets that provide access to and around the elementary school, Town Hall and the west side of the railroad tracks aka, the School Loop, as well as Wapiti Drive (Figures A B); and a single chip seal application to approximately 24,500 square yards (approx 1 '/2 miles) of medium to low volume streets such as Pioneer Trail (Figure C). Drainage Swale Improvements Project (Wapiti Drive Phase 2) Phase 2 (title of the 2010 JRSEC Cost Estimate) of this project resolves a number of maintenance and safety related issues along Wapiti Drive: it will improve drainage along the shoulder of the asphalt roadway while holding the edge of asphalt in place; it eliminates deep ditches while providing a safe `clear zone' along the roadway; it will eliminate existing culverts which freeze up during the winter months; and extends downstream to an additional section of existing concrete drainage swale between Badger and Wolverine Lanes. As you may recall, during a fall budget workshop discussion when presenting drainage improvement recommendations for Wapiti Drive (Phases 1, 2 3) it was suggested to look at alternate methods to concrete valley pans for the drainage swales in an effort to apply more of our financial resources towards actual street maintenance applications, and how PW might be able to perform some of this drainage work. In light of this discussion, PW can perform some of the Phase 1 (title of the 2010 JRSEC Cost Estimate; $116,437) drainage improvements along lower Wapiti Drive. In Addition, PW can also perform some of the preliminary prep work in the upstream sections of the swale (Mink to Ferret) this year in preparation for the Phase 3 (title of the 2010 JRSEC Cost Estimate) project proposed for 2012. The proposed project is to add approximately 350 linear feet (or approx 160 Sq. Yd.) of concrete valley pan ranging from 4 feet wide for the main channel up to 8 feet wide for intersections and some driveway accesses /aprons (Figure D). Recommendation is to approve the 2011 Street CIP Projects in an amount Not -To- Exceed $250,000. If anyone would like color copies of the maps please contact Lu in advance of the meeting date. Please feel free to contact me should you have any questions. Allen "town of ira self Box ri70, II "'rasa, CO 004 4? office 970 970 8 www .frasarccllcradc com FIGURE A School Loop Red= Double Chip Seal G omen S g e Cnip Se 111111111111111111111 1{6,v I or) jom No 10100111111111111111111111011111 111,11,),),I,V111:1 11110 ufflun 1 0?) 40 illliii1111111111111111001 V 4' 111 111,11,111111 "town of 11"""'" ra self H) Box ,370,0""'raser, CO 8041412 office 9'70 fax 0(0 ?618 www„frasercobrado „corn FIGURE B Wapiti Drive Red= Double Chip Seill FIGURE C Pioneer Trail ?en= Sing' p Sea u FIGURE D Drainage Swale Improvement- Wapiti Drive II u 0 ££9C 78P'£D£ d LL '9ZL'COC d Z XO8 ope.O OQ'ie uue ueo 1 eAJQ POthMJeU8 '3 E1.08 3 1 'INV/ TISNO3 JNIIMMI WO &t C t A tit4"' cb 1 A 1/4 t V iz 7). ,ck,) \i\ \A q)(z N,ck)z `‘iZ c4) S _Liv.24e/;74(Vsul S J k'tei FI&UR o2 k 4, V**:* g 'c Q i Z '.<1 'Z C) y tz) ck, 0\ i (z d° l' 'q--S,„ c TOWN OF FRASER RESOLUTION NO.2011-04-02 A RESOLUTION AUTHORIZING EXPENDITURES FOR THE 2011 STREET PROJECTSAND AUTHORIZING THE TOWN MANAGER TO ENTER INTO A CONTRACT. BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FRASER, COLORADO THAT: 1.The Town Board of Fraser, Colorado herebyauthorizes expenditures not to exceed $250,000 for street projects as outlined by the Public Works Director and authorizes the Town Manager to enter into contractfor the work. 2.All documents must be executed and work completed within fiscal year 2011 or this approval shall no longer be effective. TH DULY MOVED, SECONDED AND ADOPTED THIS 6DAY OFApril, 2011. Votes in favor: ___BOARD TRUSTEES OF THE Votes opposed: ___TOWN OF FRASER, COLORADO Absent:___ Abstained: ___BY: Mayor ATTEST: (S E A L) Town Clerk Clerks Briefing April 6, 2011 Liquor License: Los Nopales has been in contact with me and are in the process of gathering all the documents needed to move forward with a liquor license. When I receive their completed packet, I will forward it onto the Board. We have added the Fraser River Trail Activity Book, a project compiled by the Fraser Valley Elementary fourth graders a couple of years agoto our website. Visitors to our site will be able to download and print the book. Check it out! As always, feel free to contact me with any questions. Lu Finance Update:04/06/2011 Prepared:03/31/2011 Enjoyed lunch on Tuesday of this week with our representatives from CIRSA, along with folks from Winter Park, Grand Lake, and Kremmling (where was Granby?). CIRSA does a yearly trip around the state togive the “state of CIRSA” speech and to check in on its members in a less formal manner than our other on-site visits throughout the year. In our continuing efforts for Town staff to connect with our local businesses, Jeff, Allen, Glen and I met with theowners of the Fraser Valley Ace Hardware on Monday evening. We had a very enjoyable couple of hours with Jenny, Greg, Rochelle and Michael –our discussion went twice as long as we had anticipated. It was a great re-acquaintance, and a good opportunityto show the Town’s appreciation to a business that makes great strides to have a neat and attractive property all the way to their ability to retain all of their employees (pay and benefits intact) during the current down-turn. When you stand back and look at things, you really do see how Greg and Jenny go above and beyond in the operation of their business (and additional buildings which they rent to other vendors) to set high standards for the rest of our community’s business sector. I am getting the audit entries in the system this week, then once I balance with our auditors we will be able to move on to reviewing the draft audit document, currently Nancy and I are reviewing the audit of the JFF. Nancy is also busilyworking on our first quarterly billing based upon both a base rate and consumption element. Nancy has been working hard for this event for the past five to six months (and probably longer with regards to meter/account accuracy), on this very difficult conversion in our utility system. Thischange has made us all critically aware of how important our water operations personnel and their efforts at reading and maintaining meters and all their related parts and pieces is intertwined with the Utility administration within the financial system –two distinct departments within our operation. Without up to date operations in the field Nancy would not be able to produce accurate and timely billings. We will be briefing the Water and thth and then the Town Board on the 20with our consumer’s Wastewater Committee on the 19 response to their first billing by consumption.It was a long journey to get here and continued vigilance is required to maintain integrity as we move forward. On the COLOTRUST front, the Board of Trustees are currentlyconcentrating on a contract renewal with our investment advisor and operations manager. This is becoming a heated and at times a divisive procedure. My concern relates to maintaining the current level of service (status quo) as we move forward with perhaps swinging a better deal for our contributing members. On the lighter side of my responsibilities on the Board –I get to judge the final five entries inthe COLOTRUST sponsored CML “If I were Mayor….” essay contest. This happens in a few weeks and I am very excited to be a judge this year. As always pleasecontact me with any questions or concerns you might have: 726-5491 X206 or nhavens@town.fraser.co.us. at Nat Town of Fraser PO Box 370, Fraser, CO 80442 office 970-726-5491fax 970-726-5518 www.frasercolorado.com Town of Fraser PO Box 370, Fraser, CO 80442 office 970-726-5491fax 970-726-5518 www.frasercolorado.com Town of Fraser Sales Tax Report - Actual Collections 20082009 $ Amt +/- % +/-20092010 $ Amt +/- % +/-20102011 $ Amt +/- % +/- Jan$186,263$154,114-32,149-20.86$154,114$134,819-19,295-14.31$134,819$139,7334,9143.52 Feb$162,236$150,523-11,714-7.78$150,523$149,114-1,409-0.94$149,114$0-149,114#DIV/0! March$188,669$165,135-23,534-14.25$165,135$158,524-6,611-4.17$158,524$0-158,524#DIV/0! April$120,135$115,587-4,549-3.94$115,587$98,990-16,596-16.77$98,990$0-98,990#DIV/0! May$98,722$88,365-10,356-11.72$88,365$83,459-4,906-5.88$83,459$0-83,459#DIV/0! June$136,269$115,639-20,630-17.84$115,639$110,052-5,587-5.08$110,052$0-110,052#DIV/0! July$154,461$142,486-11,975-8.40$142,486$140,260-2,226-1.59$140,260$0-140,260#DIV/0! Aug$219,285$139,446-79,839-57.25$139,446$123,224-16,222-13.16$123,224$0-123,224#DIV/0! Sept$120,035$127,1867,1515.62$127,186$104,069-23,117-22.21$104,069$0-104,069#DIV/0! Oct$101,520$114,35712,83611.22$114,357$91,135-23,222-25.48$91,135$0-91,135#DIV/0! Nov$109,072$133,18124,10918.10$133,181$149,24716,06610.76$149,247$0-149,247#DIV/0! Dec$211,311$199,016-12,295-6.18$199,016$183,171-15,845-8.65$183,171$0-183,171#DIV/0! Total$1,807,979$1,645,035-162,944-9.01$1,645,035$1,526,065-118,970-7.23$1,526,065$139,733-1,386,332-90.84 Budget$1,600,000$1,600,00000.00$1,600,000$1,600,00000.00$1,600,000$1,550,000-50,000-3.23 Amt +/-$207,979$45,035$45,035-$73,935-$73,935-$1,410,267 % +/-13.002.812.81-4.62-4.62-90.98 Town of Fraser Sales Tax Report - Adjusted Collections 20082009 $ Amt +/- % +/-20092010 $ Amt +/- % +/-20102011 $ Amt +/- % +/- Prev Yr$3,534$7,3533,81951.94$7,353$10,4473,09429.62$10,447$16,5476,10036.86 Jan$187,135$153,970-33,165-21.54$153,970$139,519-14,451-10.36$139,519$123,186-16,333-13.26 Feb$161,852$153,869-7,983-5.19$153,869$141,138-12,731-9.02$141,138$0-141,138#DIV/0! March$186,160$170,063-16,097-9.47$170,063$157,146-12,917-8.22$157,146$0-157,146#DIV/0! April$120,788$105,165-15,623-14.86$105,165$100,453-4,712-4.69$100,453$0-100,453#DIV/0! May$99,539$88,594-10,945-12.35$88,594$83,629-4,965-5.94$83,629$0-83,629#DIV/0! June$136,905$116,422-20,483-17.59$116,422$112,008-4,414-3.94$112,008$0-112,008#DIV/0! July$157,385$145,896-11,489-7.87$145,896$141,137-4,759-3.37$141,137$0-141,137#DIV/0! Aug$160,929$155,951-4,978-3.19$155,951$120,760-35,191-29.14$120,760$0-120,760#DIV/0! Sept$130,773$116,561-14,212-12.19$116,561$111,732-4,829-4.32$111,732$0-111,732#DIV/0! Oct$143,252$108,450-34,802-32.09$108,450$95,341-13,109-13.75$95,341$0-95,341#DIV/0! Nov$109,303$89,263-20,040-22.45$89,263$134,60845,34533.69$134,608$0-134,608#DIV/0! Dec$210,424$233,47823,0549.87$233,478$178,147-55,331-31.06$178,147$0-178,147#DIV/0! Total$1,807,979$1,645,035-162,944-9.01$1,645,035$1,526,065-118,970-7.23$1,526,065$139,733-1,386,332-90.84 Budget$1,600,000$1,600,00000.00$1,600,000$1,600,00000.00$1,600,000$1,550,000-50,000-3.23 Amt +/-$207,979$45,035$45,035-$73,935-$73,935-$1,410,267 % +/-13.002.812.81-4.62-4.62-90.98 PLANNINGUPDATE (4/6/2011) Planning Commission: Working on code updates. The Planning Commission (PC) held a public hearing on the Planned Development District Plan submittal for Byers Peak Ranchon March 23, 2011. The following is a brief project description submitted by the applicant: “Byers Peak Ranch is a 295 acre neighborhood located south of Mill Ave. and west of the railroad tracks.Fraser Valley Parkway bisects the site. The existing neighborhood to the north of the property includes single family, attached residences and apartments oriented in a traditional grid pattern; community meeting facilities, TownHall, Town maintenance facilities and the Fraser Elementary School. The PDD for Byers Peak Ranch contemplates 498 detached and 938 attached residential units, 350 lodging units, RV sites and 270,000 sf of commercial/industrial units. The residential product types will vary throughout the community and include single family lots, attached units, and lodging integrated into acohesive community linked by open space corridors. The community will includea central open space and park with recreational uses and ponds that will be accessible to all residents. The commercial/industrial uses are located along the railroad tracks and will serve as a transition from the railroad tracks to the residential neighborhoods. There will also be some commercial uses along the Fraser Valley Parkway to serve the residents and visitors.” We had lots of public comment on the proposed annexation and land uses associated within the fourteen planning areas. The PC continued the public hearing until April 27, 2011. Fraser Business/Community Forum: The next forum has been tentativelyscheduledfor April 26, 2011. Municipal Code Updates: Working on code edits to the Subdivision Regulations, Minimum Design Criteria & Construction Standards, Business Zone Regulations,and Sign Code. Medical Marijuana Centerregulations are on hold pendinga decision at the State levelto extendthe moratorium until July 1, 2012. Building Permits: The Building Dept. had just issued a permit to The Creative Learning Center for a remodel and addition. The existing office will be turned into a gross motor room and a new office will be added above the new gross motor room. Town of Fraser PO Box 370, Fraser, CO 80442 office 970-726-5491fax 970-726-5518 www.frasercolorado.com  PUBLIC WORKS BRIEFING (As of 3/31 for 4/06/2011 meeting) WATER~ Continue cross training PW staff to read water meters. Continue with implementation of SEMS program. Making progress with the development of our backflow prevention program. Hillery took her D level Water Operators Certification exam last weekend SANITARY SEWER~ Cure-In-Place-Pipe (CIPP) Slip lining project: Working with the contractor on possible start dates. They need for the frost to be completely out of the ground and for favorable weather conditions! STREETS~ ** See supplemental briefing regarding 2011 CIP recommendation of expenditures for street and drainage projects. FVI - GP Drainage Issue: Update: Sept or Oct hearing pending PW has temporarily switched how they receive our Utility Locate tickets (UNCC) to an email based application. Pending the outcome of this method, we will most likely permanently switch to a web based Ticket Management System (WebTMS). STREETSCAPES~ Lead Gardener has been working on plant orders and has ordered hanging baskets for around town. More to come on that. DEVELOPMENT~ Continue with construction and utility standards updates and consolidation of documents and drawings. ** As I will be out of town for the discussion and possible action of the proposed streets CIP recommendation, if anyone has questions regarding any specifics of these two projects, please rd contact me between now and Sunday, April 3 and I will be happy to answer your questions. Questions or Concerns? Email me: anordin@town.fraser.co.us or 970-531-1844. Town of Fraser PO Box 370, Fraser, CO 80442 office 970-726-5491 fax 970-726-5518 www.frasercolorado.com Request For Proposals 200 Eisenhower Avenue Submittal Deadline: ________________________ SUMMARY Background The Town of Fraser owns 200 Eisenhower, and property located at the southeast corner of Eisenhower Avenue and Railroad Avenue in Fraser. The property currently includes a small (approximately 1000 square foot) structure which most recently served as the administrative offices for the Grand County Housing Authority. While the structure is habitable, it is an old building and merits rehabilitation. The structure has been vacant since early 2007, and currently serves no public purpose. The Town of Fraser is seeking to put the facility back into productive use and is seeking proposals to lease and/or purchase this property. The Property Insert See attached aerial photos Town of Fraser PO Box 370, Fraser CO 80442 office 970-726-5491 fax 970-726-5518 www.frasercolorado.com Request for Proposal Proposal Parameters It is anticipated that there may be a variety of different ways to make use of this property and/or building. The Town is seeking proposals and/or development plans to evaluate the preferred course of action. Proposals may include, but are not necessarily limited to any or all of the following: Purchase at a proposed price. Lease. Lease/purchase. Purchase pursuant to a proposed development plan. All proposals must, however, include a detailed description of the proposed use and/or plans for the property. Submittal Requirements To simplify the review process and to obtain the maximum degree of comparability, the proposal should follow the outline as set forth below and, at a minimum, contain the information as requested. Respondents are encouraged to include additional relevant information.  Information regarding the applicant/proposer  Summary of proposed development plans and any relevant information  Details regarding proposed purchase price or lease arrangements  Any other applicable information An original copy of the proposal, along with three (3) copies must be received by the Town of Fraser no later than 5:00 p.m. on: Friday November 16, 2007. Selection Criteria All proposals will be reviewed and evaluated by the Town Manager. The approval of any proposal is subject to approval by the Town Board of Trustees. The Town reserves full discretion to determine the capability of candidates. Candidates will provide, in a timely manner, any and all information that the Town deems necessary to make such a decision. The proposals submitted, and any further information acquired will become and are to be considered, a part of the final, completed contract. The Town may also reserve the right to retain all proposals submitted and use any idea or concept in a proposal regardless of whether that proposal is selected. The Town may elect not to pursue any of the proposals. Town of Fraser PO Box 370, Fraser CO 80442 office 970-726-5491 fax 970-726-5518 www.frasercolorado.com Request for Proposal For More Information Any questions regarding this Request for Proposals should be directed to Jeff Durbin, Town Manager at 970-726-5491x202 or jdurbin@town.fraser.co.us no later than 3 business days prior to the __________________ deadline. Town of Fraser PO Box 370, Fraser CO 80442 office 970-726-5491 fax 970-726-5518 www.frasercolorado.com Request for Proposal