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Council rejects second Big Box referendum

In a reversal of support for an ordinance that would have brought additional matters of Big Box regulations to town voters, the Pagosa Springs Town Council allowed a second reading of that ordinance to fail due to lack of support on Tuesday.

The first reading of the ordinance (751) was passed unanimously by council on Feb. 18 and Tuesday’s meeting had been scheduled for the express purpose of hearing the second reading of the ordinance. Furthermore, Ordinance 751 was also presented as an emergency ordinance at Tuesday’s meeting. It was the rejection of that emergency ordinance that led to the subsequent rejection of the second reading.

Ordinance 751 would have removed portions of the Land Use and Development Code (LUDC) related to Big Box development regulations, most of them addressing large-format retail development over 100,000 square feet, and asked Pagosa Springs voters to approve those deletions.

When town voters go to the polls on April 6, they will be asked to decide whether or not to repeal section 2.4.5 of the LUDC, a section dealing specifically with Big Box development. Last August, council voted to repeal section 2.4.5 on the recommendation of Pagosa Springs Town Manager David Mitchem. At that time, Mitchem reported to council that he had been approached by developers interested in putting a Big Box store in Pagosa Springs, but the developer had been reluctant to develop locally due to restrictions in the LUDC.

At that time, local attorney Matt Roane addressed council, pointing out that section 2.4.5 was not the only portion of the LUDC dealing with Big Box development regulation and that repealing that one section would expose various loose ends.

At that time, Roane said to council, “Your code says you have to have a variance for buildings over 100,000 square feet,” adding that variances stipulated in section 2.4.11 of the LUDC (which addresses development over 100,000 square feet) refer directly to section 2.4.5 of the LUDC, saying, “If you get rid of 2.4.5, you gut the variance ... let’s clean up those details. Don’t vote on this today.”

Council member Shari Pierce was not convinced that repealing 2.4.5 of the LUDC was the correct course in entertaining the development of large-format retailers. “What I’m not OK with is repealing this,” she said. “We didn’t accept the User’s Manual. Let’s not throw it out, let’s modify it.”

During that meeting, every local resident speaking at the meeting voiced opposition to repeal of the code, with several residents imploring council to put the matter before the voters. Nonetheless, council voted to repeal section 2.4.5 (with Pierce as the lone dissenting vote) of the LUDC and ignored portions of the code referred to by Roane and Pierce.

However, the issue was far from over as Roane and several other local residents launched a petition to force a referendum on the matter. After settling a lawsuit (due to the town’s initial rejection of the petitioner’s attempt to force a referendum), the town agreed in January to allow the matter of Big Box regulations — as far as council’s decision to repeal section 2.4.5 of the LUDC — to go to the voters.

The other five sections of the LUDC that regulated Big Box development were left unaddressed until mid-February of this year. At the Feb. 18 council meeting, Mitchem presented Ordinance 751 for a first reading. That ordinance would have created a second referendum, asking town voters whether or not to repeal the five sections in the LUDC related to Big Box regulations but not covered in section 2.4.5.

With council approving the first reading of Ordinance 751, Mitchem asked to schedule a special meeting to accommodate a second reading of the ordinance; due to time requirements for noticing an ordinance to the public (as stipulated in the town’s charter), council’s March 2 meeting would be too soon for meeting those requirements.

It was at the March 2 meeting, however, where Roane alleged that the town had not followed the dictates of its own charter in noticing Ordinance 751.

“I don’t think there’s been a proper reading (of the ordinance),” he said, adding that, due to council violating its own charter, the vote passing the first reading would be invalid.

“If I’m correct,” Roane went on to say, “there is no need for a March 9 meeting.”

Although Mitchem disagreed with Roane, stating that he felt the ordinance had been properly noticed, council directed Mitchem to consult with Bob Cole, the town’s attorney, as to the propriety of the procedures in noticing the ordinance.

On Tuesday, Mitchem told council that he had consulted with Cole, saying, “The way we’ve been handling it is appropriate.”

Cole also recommended that a redundant ordinance be presented as an emergency ordinance — an ordinance that (per town charter section 3.10.A) takes effect immediately after being passed and is “immediately necessary for the preservation of public peace, health or safety.”

“This is political gamesmanship,” Roane said. “In July, I pointed out there were other provisions relating to Big Box development. This does not qualify as an emergency ordinance.”

Pointing out the possibility that one referendum could pass with the other referendum failing, Roane painted a picture of a confused and potentially irrelevant LUDC. “We are getting ready to create a real Pandora’s Box if we move forward,” he said.

Initially, council members appeared prepared to move forward with approval of the emergency ordinance: council member Jerry Jackson made a motion to approve the ordinance, with trustee Don Volger offering a second. However, as Roane continued his argument, council appeared to waiver.

A comment by Mayor Ross Aragon could arguably be identified as the tipping point in the discussion.

“I have to agree with Mr. Roane on that,” the mayor said, “a two-part referendum is very confusing ... we’re going to stir up a hornet’s nest.”

“I would ask the board to reconsider,” Aragon continued, “and if we have to wait and reconsider ... I don’t think it can hurt us any worse than where we’re at now.”

For his part, Roane said that, if the voters agree April 6 to repeal select Big Box regulations in the LUDC, he would accept that decision and would gladly work with staff to tweak the related provisions in the code.

“Referendum A will be a great litmus test,” Roane said. “If the voters agree with bringing in a Big Box, I’m willing to accept that. I’m willing to sit down and talk about an alternate procedure.”

Volger asked Roane, “You’re telling us that if we hear the will of the voters, that takes the wind out of your sails for further opposition?”

Roane affirmed he would accept the vote, whichever way it went.

Given a timeline from Mitchem on how long it will take to revise or repeal the sections addressed in ordinance 751, Volger suggested that council wait for the election results, then, if the voters approved the repeal of Big Box regulations in section 2.4.5, council proceed with the related sections.

“It seems to me,” Jackson said, “that if we go ahead and vote on my motion, we’re stepping into legal proceedings. We’ll see if Mr. Roane is a man of his word or not, which in this town is do or die.”

At that point, Jackson withdrew his motion. Although trustee Darrell Cotton immediately presented the same motion, no council member would second it and the motion died for lack of interest.

Signaling an unwillingness to proceed with a second referendum issue, the second reading of ordinance 751 was also scrapped.

On April 6, town voters will decide if they agree with council’s decision to repeal regulations for Big Box development. For its part, council decided on Tuesday to not further muddy the waters with another referendum but instead wait, along with Roane, on what the will of the voters might be.

jim@pagosasun.com