From an Existing Caucus Is a Procedure Not Contemplated in The
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September 7, 2016 Delivered by Hand Rachel Richards, Chair Board of County Commissioners of Pitkin County 530 E. Main Aspen CO 81611 Re: Application for Recognition of new Snowmass Creek Caucus: Second Reading and Public Hearing—September 14, 2016 Dear Commissioners: This is a case of first impression under the Pitkin County Home Rule Charter. Secession from an existing Caucus is a procedure not contemplated in the Charter and is a request never before considered in some 42 years of the existence of the Snowmass-Capitol Creek Caucus, the first to be recognized in 1974. At the Public Hearing and Second Reading on September 14, 2016, this Packet will provide useful analysis and additional options for the Board, assembled and submitted by the undersigned Directors on the Board of the existing Snowmass- Capitol Creek Caucus. For your convenience, the materials are organized as follows with all referenced letters attached following the analysis: COMPLIANCE WITH HOME RULE CHARTER Page A. MEMORANDUM ANALYZING COMPLIANCE WITH HRC 4. 5 3 The " Only One Caucus" Rule 3 Letter from Michael Kinsley 7 Letter from Mark Harvey 9 Letter from Dee Malone 12 13 The " Definite Boundary" Requirement B. MEMORANDUM ANALYZING COMPLIANCE WITH HRS 4. 1 AND 4. 2 4 Analyzing the Information Campaign, the Notice, the Meeting 4 and the Vote by Prospective Members 4 Letter from Kevin Michaelson 17 The " Meeting" for the Vote— Experience of Two who Voted 21 Letter from Sue Helm and Letter from Dave Nixa 23& 25 1 II. CONSEQUENCES and TIMING OF RECOGNITION Page MEMORANDUM ANALYZING CONSEQUENCES& TIMING OF 5 BOCC RECOGNITION OF A NEW CAUCUS Letter from Michael Kinsley Letter from Dee Malone, Crystal River Caucus 12 9 Letter from Mark Harvey Letter from Sue Helm 25 Letter from Dave Nixa 23 17 Letter from Kevin Michaelson III. OPTION TO RECOGNIZE, NOT RECOGNIZE, OR CONTINUE HEARING MEMORANDUM ANALYZING BOCC OPTIONS 6 Respectfully submitted by the following Board members of the Snowmass- 7th Capital Creek Caucus this day of September, 2016. Board Members Gary Beck Patsy Batcheldor Chelsea Congdon Brundige Molly Child Martha Ferguson Gib Gardner Mark Harvey Kevin Heinecken Sue Helm, Emeritus John McBride Tim McFlynn Seth Sachson Helene Slansky Kevin Ward Additional Board Members may elect to add their names by September 14, 2016 2 I. COMPLIANCE WITH HOME RULE CHARTER In the over 40-year history of the neighborhood caucus system in Pitkin County, unique in the State of Colorado, all Boards of County Commissioners and landowners and residents have benefitted. Based upon all of the materials submitted to date, the proponents of secession have not complied with the letter or the spirit of the Home Rule Charter. A. Compliance with HRC 4. 5- The " Only One Caucus" Rule A universal rule of construction might be helpful. Whether of statutory provisions, contractual provisions or Home Rule Charter provisions, that rule is to try to give meaning to each provision whenever a court or this quasi-judicial body must make factual findings and issue a decision. As County Attorney John Ely has advised, the Home Rule Charter( HRC) Sections 4. 1 and 4. 2 " set a low bar" for Caucus formation and recognition by the BOCC. However, no advice or discussion in public has addressed the HRC Section 4. 5 requirements that: There shall be only one ( 1) recognized caucus in each geographic area" and: Each caucus shall provide proposed definite boundaries for their caucus area to the Board." As of the date of this application, there was a recognized caucus in the Old Snowmass planning area, one that had existed and operated for over 40 years and one that has had definite boundaries encompassing around 30,000 acres of private lands abutting public lands almost on all sides. This is the mapped Snowmass- Capitol Creek Planning Area that has an adopted Master Plan, an active Board and Membership, a strong history of good works, an occasional rough patch internally, and an upcoming election in the Fall. This Board certainly has the opportunity if not the obligation to read Sections 4. 1, 4.2 and 4.5 together. Doing so should lead to the realization that those seeking recognition of a new caucus within a geographic area where one already exists, there must be steps taken by both the existing and the proposed caucus to meet, to confer and to collaborate on changes to the name, to the definite boundaries and to other Caucus attributes so that this Board can be fully informed and make proper findings at the public hearing for recognition. Such findings will include the appropriate name, the definite boundaries, and compliance with Section 4. 1 and 4.2. No such meeting, no such conversation and no such collaboration have yet occurred, despite several invitations and opportunities for same. If there are to be two recognized caucuses operating in the Planning Area known as Old Snowmass, time must be allowed for the careful development of sufficient information from which the Board can make an informed decision. Please see attached: Letters from Michael Kinsley, Mark Harvey, and Dee Malone The" Definite Boundary" Requirement of the Home Rule Charter 3 B. Compliancep with Sections 4. 1 and 4. 2— Analyzingy g the Information Campaign, the Notice, the Meeting and the by Vote by Prospective Members Another standard rule applicable to judicial or quasi-judicial proceedings is that there is an implied covenant of reasonableness, good faith, and fair dealing. In this context, have the proponents of a new Caucus met that standard as applied to compliance with Sections 4. 1 and 4.2 in the absence of any bright line rules and standards in the Charter? The facts are these: 1. Based upon current information from the Pitkin County Clerk& Recorder, the Pitkin County GIS Department and the Pitkin County Community Development Department, 56 votes were " yes", 38 votes were" no"— a difference of 9 individual voters -- out of 94 votes cast at the meeting. This constitutes approximately 10% of those entitled to vote because they too, on that date, were Members of the proposed Caucus area as qualified electors and either residents ( not just landowners) or non-residents owning land within the proposed new boundaries. There are approximately 241 parcels and plus or minus 400 members in the proposed new Caucus planning area. Please see attached: The" Meeting" for the Vote— Experience of Two who Voted Letter from Kevin Michaelson Letter from Sue Helm Letter from Dave Nixa 2. The reasons for the extremely low level of participation include a private and confidential outreach and information campaign over a short time frame, followed by 4th extremely short notice, on July via email only, announcing the Deaf Camp meeting as an opportunity to vote in person on July 11th. There was no reasonable or meaningful effort to conduct an information campaign to all prospective Members within the proposed boundaries ( qualified electors who are resident landowners, non-resident landowners, and resident caretakers, ranch managers and renters, over 18 and eligible to vote). See attached Letters from Kevin Michaelson, Dave Nixa, Sue Helm and others These facts must be measured against the standards set forth in HRC Section 4. 1 which require at least reasonable or substantial compliance with: Section 4. 1 A caucus may be established by a qualified elector who calls a meeting at a convenient time and place within the proposed caucus area. An information campaign shall be conducted to ensure that all qualified electors and non-resident real property owners in the proposed caucus area know of the date, time, place and purpose of the meeting." 4 3. The rush to conduct a Pre- Emptive Vote, just eight( 8) days prior to the long-scheduled and well-advertised Public Member Meeting on the draft Master Plan on 19th July at the Firehouse, the secrecy surrounding that effort until the 4th of July, and the use of personal contacts rather than email, snail mail, and posted Notices may explain the extremely low voter turnout at the Meeting. The 56 to 38 outcome is a margin of only 9 individual voters out of at least 241 parcel owners and almost certainly 400 to 500 eligible Members who could have voterd at this election. Please see attached The " Meeting" for the Vote— Experience of 2 who Voted II. CONSEQUENCES AND TIMING OF RECOGNITION In any case of first impression, caution is warranted in order to also consider the implications and consequences of the precedent thereby set. Whenever a Court or other quasi-judicial body is bound to determine the facts, make findings and render its decision where there is no precedent and no deadline, rushing can be problematic, later regretted. With the door now open to recognition and a" low bar" to eligibility, might the precedent lead to a splintering off of other neighborhoods within the existing Snowmass, Emma, Woody Creek, Crystal, Maroon and other Caucus Planning Areas? Might this be a propitious time to direct Community Development staff, working with the caucuses, the P Z and this Board, to develop policies and standards for future applications for recognition, especially where another Caucus already exists? Notably, the Home Rule Charter is silent as to the timeline or deadline for a recognition decision, following receipt of an application. The only applicable provision is Section 4.2 that provides that: The Board, after satisfying itself that the provisions of this Article have been met, shall recognize the caucus and establish the caucus area [ definite boundaries) by resolution." This then is an opportunity to develop some basic policies and standards, not applicable to the pending Snowmass Creek Caucus request for recognition that is already before this Board, but adopted, in effect and applicable to new applications for recognition.