On June 20, 2023, a protest hearing concerning property owner Ron Mitchell’s challenge of the referendum petition to repeal the Board of Trustee’s decision to approve Ordinance 837, rezoning 100
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On June 20, 2023, a protest hearing concerning property owner Ron Mitchell’s challenge of the referendum petition to repeal the Board of Trustee’s decision to approve Ordinance 837, rezoning 100 1st Street from High Density Residential (HDR) to Central Business District (CBD), was held at the Nederland Community Center at 9 a.m.
Hearing Officer Karen Goldman heard from Evan Healey, legal counsel for Mitchell, about the six grounds for protest listed in Mitchell’s affidavit. She also asked clarifying questions and heard testimony from petition circulators Lindsey Danforth, Kristopher Larsen, Teresa Robertson, and Deborah Smiley.
The hearing lasted for just over two hours, after which Goldman stated that she would use all of the allotted five calendar days to make her decision.
Goldman delivered her final determination to Town Clerk Macy Caligaris on the morning of Monday, June 26, 2023.
In relation to the protest that the petition sections are not properly numbered in compliance with Colorado Revised Statute (CRS) section 31-11-106(4), which states that all sections within a petition should be pre-numbered serially, Goldman determined that the petition circulators had failed to properly pre-number out of technical error, and that that was not a sufficient enough reason to invalidate the petitions.
The second protest concerned the six petition sections appearing to have been separated by the removal of staples, which is a technical violation of CRS section 31-11-106(3)(e)(II). Goldman found that though the petition sections did show indications of having been stapled and then separated, testimony from Caligaris, Fisher, and Larsen during the hearing indicated that the separation of petition sections did not occur when the petition was being circulated, and therefore did not violate the state statute.
The validity of the petition section circulated by Robertson was also questioned in Mitchell’s protest as a result of Robertson allegedly not signing the completion date of the petition in front of the notary, and for Robertson apparently failing to include the name of the town where she resided when signing the petition section as an official circulator. Goldman came to the conclusion that the omission of the name of the town was not reason enough to invalidate Robertson’s petition section as there were no specific instructions on the approved petition to do so.
In relation to the ground for protest that petition circulator Danforth’s social media post made to “Ned Uncensored” on April 6, 2023 was intentionally misleading to potential signatories of the petition, Goldman determined that, with no evidence or testimony presented to prove otherwise, Danforth’s post did not violate CRS 31-11-114(1)(g) and therefore Danforth’s petition section will not be disqualified.
The next protest was based on the handwriting analysis of all six sections of the petition from Court Qualified Document Examiner Laurie Hoeltzeland and from Darla McCarley-Celentano of Plum Creek Forensics, which indicate several occurrences where it appears that the lines pertaining to the signatories’ home municipality and county were filled in by someone other than the signatory.
It was specified during the hearing that signatures are only subject to handwriting analysis during municipal elections and that no authorization exists where a protestor is permitted to use handwriting analysis to either qualify or disqualify signatures. Goldman stated in her final determination that no evidence or testimony was presented to prove that any of the signatures on the petition were those of unqualified registered electors.
The sufficiency of the entire petition was also questioned in Mitchell’s protest due to petition circulators providing the notary public with only an “acknowledgment” as opposed to an oath, which Healey stated was a requirement of CRS section 31-11-106. Goldman found that the petition circulators did ensure that signatories were registered electors and residents of Nederland and that appropriate effort was made to follow state statute regarding referendum petitions.
Goldman concluded in her final determination that, despite “minor technical errors,” the referendum petition of Ordinance 837 is sufficient. The Nederland Board of Trustees will now have to decide whether to repeal the ordinance or to hold a public election, which would have to take place between July 10 and October 6.