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Property owner protests petition to reverse BOT decision

Christopher Kelley
Posted 6/22/23

Near the heart of downtown Nederland a 1.2 acre property, for years used as an unofficial parking lot, has been a subject of controversy since the lot’s zoning classification was changed by the

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Property owner protests petition to reverse BOT decision

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Near the heart of downtown Nederland a 1.2 acre property, for years used as an unofficial parking lot, has been a subject of controversy since the lot’s zoning classification was changed by the Nederland Board of Trustees (BOT) from High Density Residential (HDR) to Central Business District (CBD).

A referendum petition to reconsider the BOT’s decision, signed by 98 members of the Nederland electorate, is expected to go to public hearing. However, that petition has now been challenged by Ron Mitchell, the property owner of 100 East 1st Street, the parking lot in question.

Mitchell, representing Nederland Central Business District Redevelopment LLC, expressed to the Nederland Planning Commission on January 25, 2023 that the rezoning to CBD would allow for the lot to be used as a paid parking lot with a “mini-park,” which Mitchell stated was a purpose more in line with the Town’s Comprehensive Plan that East 1st Street businesses were “unanimously” in favor of.

At that meeting, Mitchell explained to the Planning Commission that the parcel, which he acquired in 2016, was zoned incorrectly by Boulder County in 1982, and the mistake has cost him in taxes.

Public comment given during the meeting was generally against Mitchell’s proposal, with concerns raised about the rezoning affecting other town improvement projects such as the Nederland Downtown District Authority’s River Walk project, and the potential of a second bridge for regular traffic across the creek.

Residents close to the parcel who were in opposition to the rezoning expressed frustration at the prospect of the CBD encroaching into their neighborhood, and stated that Mitchell allegedly made promises in relation to building more housing at that location.

The Planning Commission voiced concerns that, if the rezoning were to be approved, Mitchell could potentially change his mind regarding his stated plans for a paid parking lot and mini-park. Ultimately, the Commission denied Mitchell’s proposal to rezone 100 East 1st Street because the request did not have the approval of direct neighbors to the property.

Commission members also agreed that approving a property rezoning without adequate deliberation and public feedback would set a dangerous precedent.

When the BOT meeting on February 21 reached its four-hour deadline without a decision, the discussion of Mitchell’s proposal with Trustees was postponed until April 4, when the item returned to the agenda as an Action Item, which potentially quashed any adequate deliberation and public feedback.

Several options pertaining to ensuring the property would be used for parking were discussed during that April 4 meeting, including zoning the property as Neighborhood Commercial, therefore requiring a Special Review Use process to allow paid parking on the property. Another option would be changing zoning laws to allow for paid parking to be constructed on HDR-zoned property. However, Trustees were unable to find a compromise with Mitchell.

There were some Trustees who felt that the rezoning request did not meet proper criteria, in that Mitchell could not supply proof that the property was zoned in error in 1982; the area has not significantly changed since it was zoned originally; and that it is not necessary to rezone the property in order to provide paid parking. However, a motion to approve Ordinance 837, rezoning 100 East 1st Street from HDR to CBD, was made and passed in a 5-2 vote.

A referendum petition to reconsider this approval of Ordinance 837 was submitted on May 5 and was declared sufficient by Town Clerk Macy Caligaris on May 11. The referendum petition was based on the belief that the proposal did not meet the set criteria, a belief shared by some Trustees during the meeting on April 4.

The BOT briskly discussed the referendum petition during their meeting on May 16. With their choices being to revisit the discussion of Ordinance 837, to repeal the ordinance, to call for a special election with the town’s electorate to reach a decision, or to wait and see if an official protest is filed with the Town before 5 p.m. on June 14, the Board opted to wait for an official protest to be filed.

Once that protest is filed the Town would have had a deadline of July 5 to hold a protest hearing. If the hearing officer were to determine that the petition were sufficient, the BOT would then have to decide whether to repeal the original decision or to hold a public election. A public election, if chosen, would have to take place between July 10 and October 6.

On June 6 the BOT voted to approve Resolution 2023-27, appointing Karen Goldman as the hearing officer for the protest hearing. Goldman has 30 years’ experience as Aurora’s Deputy City Clerk and is considered an expert on elections.

On June 14, a Verified Protest was formally submitted by Mitchell to the Town of Nederland, challenging the referendum petition on several different grounds, including that each section of the official petition submitted to the Town was not properly notarized, not properly numbered, and not properly signed by the petition circulators.

Mitchell’s protest also states that social media comments made by petition signatory Lindsey Danforth in relation to Ordinance 837 were intentionally misleading. Danforth’s comments on the Facebook group “Ned Uncensored” concern her belief that Mitchell’s request to rezone the property of 100 East 1st Street did not meet proper criteria for consideration in that the lot’s current zoning of HDR fits with the goals stated in Nederland’s Comprehensive Plan.

Mitchell’s petition states that Danforth’s comments were misleading due to the BOT deciding that the proposal to change zoning to CBD did conform to the Comprehensive Plan. Trustees had also previously approved, on March 7, a required update to the 2013 Comprehensive Plan to be authored by a third party, paid for by a $100,000 Colorado Department of Local Affairs (DOLA) Energy/Mineral Impact Assistance Fund Grant, for which the Town matched an additional $100,000.

Mitchell’s Verified Protest of the referendum petition included as exhibits of evidence data reports from Court Qualified Document Examiner Laurie Hoeltzel and from Darla McCarley-Celentano of Plum Creek Forensics. The reports were based on the examination of six questioned pages from the petition, circulated by Sarah Bishop, Theresa Bradley, Danforth, Kristopher Larsen, Deborah Smiley, and Teresa Robertson, from May 3 to May 5.

McCarley-Celentano’s observations indicate that “the petitions have been altered by adding materials to the Home Address section.”

Hoeltzel’s official declaration states that “on multiple occasions the name of the city, county, or state was authored by a different person who authored the name and portion of their address on their respective lines.”

The protest hearing was held on Tuesday, June 20, at 9 a.m. at the Nederland Community Center, with Town Attorney Jennifer Madsen present along with Goldman serving as the hearing officer. Mitchell was represented by his legal counsel, Matthew Giacomini and Evan Healey of Springer and Steinberg, P.C.

Larsen was present as the official petitioner, while Danforth, Smiley, and Robertson (as well as Larsen), who all represented themselves, were present as the petition circulators whose actions have been questioned in Mitchell’s affidavit.

Goldman noted that she would not entertain any back-and-forth discourse, and that all statements and arguments are to deal with the matter of the petition only, and are especially not to include mention of Ordinance 837.

Attorney Healey detailed, one at a time, each of the six different grounds for protest stated within Mitchell’s affidavit, as she asked clarifying questions and called upon others for further testimony.

To the question of each section of the petition being improperly notarized, Healey proclaimed that petition circulators were expected to swear an oath when providing their affidavit to the notary public. Healey stated that Peter Cacek, who served as the notary, required only an acknowledgment, not an oath, from petition circulators, which Mitchell’s counsel believes should render the petition insufficient.

Goldman asked Healey if it was his understanding that petition signatories and circulators providing an oath was common practice, to which Healey could not comment. Goldman called upon Town Clerk Macy Caligaris, who accepted the petition and deemed it sufficient, and asked about her process when accepting and reviewing the petition.

Town Administrator Dr. Miranda Fisher was also asked about her process when receiving and reviewing the petition. Fisher noted that she first verified what type of notary was completed; and that with the petition in question, there was no “oath” language, only that of an “acknowledgment.”

The second ground for protest identified in Mitchell’s protest is 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 asked Healey about his opinion on the importance of pre-numbering the sections serially, to which Healey described how the clarity of basic organization is important for recalling exhibits of evidence during hearings.

Larsen indicated that once the one-page document consisting of the petition language was approved, he then made five copies and distributed them to the other petition circulators, which explains how the numbering of “Section 1” was carried through onto each of the six sections of the petition.

Caligaris and Larsen were asked by Goldman to state for the record if they had ever filed an official petition before. Both stated they had no prior experience with filing a petition.

The third ground for protest involved the petition sections appearing to have been separated, as indicated by a mark on the upper left corner that Mitchell’s legal team felt was evidence that staples were removed from the petition, which is a technical violation of CRS section 31-11-106(3)(e)(II).

After asking Healey for any evidence indicating that the petition was stapled, for which there was none, Goldman proceeded to ask Caligaris if she received a stapled copy of the petition. She answered that she had. Larsen hypothesized that the staples were removed by Town staff to scan them, and that Mitchell’s legal team received those scanned copies.

Goldman asked for sworn testimony from each of the petition circulators concerning whether they handled a stapled petition, to which Danforth, Larsen, Smiley, and Robertson all stated that the petition was stapled the entire time it was in their possession. Caligaris and Fisher corroborated Larsen’s claim that when they received three separate CORA requests they sent photocopies to two individual parties, which required the removal of the staples.

To the question of one of the petition sections being improperly signed by petition circulator Robertson, Healey proclaimed that because Robertson signed the petition on May 3, while the petition was not signed by a notary until May 5, that indicates that the date was not signed by the circulator in front of the notary.

Robertson was unsure when she signed the date and assumed that, due to the paperwork process in her career, she may have signed the date on May 3 because that was the date of completion of the petition. Fisher stated that, as notary, she witnessed Robertson sign her name and the date on May 5.

Healey stated that, from a Supreme Court case from 1986, “the discrepancies of the date and month render the relevant petitions invalid and that petitions containing such discrepancies do not provide the necessary safeguards against abuse and fraud of the process,” and that Robertson’s testimony does not provide a satisfactory explanation for that discrepancy.

The fifth ground for protest concerned the statement made by Danforth on “Ned Uncensored” on April 6. The statement is claimed to be intentionally misleading in that it notes that the Planning Commission rejected Mitchell’s proposal for not coinciding with Nederland’s Comprehensive Plan. Mitchell’s legal team stated that Danforth’s comments were also shared on “Nedheads” and “Nederland Area News,” and that the statement was presented as fact, not opinion.

A search on “Nedheads” and “Nederland Area News” for Danforth’s name did not provide the April 6 statement in question, though the statement can be found on “Ned Uncensored.”

The statement begins with: “I find it very interesting that the entire town agrees we need housing, most town boards also agree we need housing, yet on Tuesday the BOT voted to rezone one of our only high density residential parcels to yet another unneeded commercial parcel.”

Danforth noted that she only posted her statement on “Ned Uncensored,” and spoke of basing her Facebook post on the Agenda Information Memorandum (AIM) from the April 4 BOT meeting, which reads: “The PC did not feel the application met the rezone application criteria,” when one of the criteria was for the application to coincide with the Comprehensive Plan.

Nederland’s 2013 Comprehensive Plan lists both housing and parking as priorities for the town, meaning that Danforth’s statements and Mitchell’s claim within his affidavit are both seemingly correct. However, according to the AIM from April 4, the Comprehensive Plan specifies that the goal is “to create parking pods that are on the outskirts of Town which encourages people to get out of their car and explore Nederland’s businesses and amenities.”

The sixth and final ground for protest was based on the handwriting analysis of six sections of the petition from Hoeltzel and McCarley-Celentano, which calls into question several instances where it appears as though the information pertaining to the name of the municipality and the name of the county were filled in by someone other than the signatory.

Goldman asked Healey to specify whether any of the signatures themselves were being brought into question as being fraudulent, to which Mitchell himself took the stand to state that, according to Hoeltzel’s report, there was one supposed instance of a husband and wife’s signatures being signed by only one party.

To the question of when it is permitted by law to require comparison of signatures, Fisher answered that the only time that signatures are verified is in a regular or special municipal election when doing a ballot comparison to ensure the signature of the elector who submitted their ballot is accurate. There is no other situation when signatures are analyzed.

The four petition circulators present all gave testimony stating that they personally observed people signing all parts of the petition and that they were aware of what they were signing. Several signatories whose handwriting was brought into question were present and provided statements that nothing irregular occurred during their signing of the petition.

Healey reiterated in his closing statement that due to the numerous grounds for protest, most notably the requirement of petition circulators to provide a sworn oath in an affidavit to a notary rather than an acknowledgment, strict compliance was not met and therefore the petition should be found to be invalid.

Larsen’s closing statement regarded the aim of the petition to exercise, through “good-faith” efforts, their constitutional right to question the actions of their elected officials. He referred to the protest hearing as a “David versus Goliath-type of situation,” given that the petitioners and petition circulators, according to Larsen, did not have the time or finances to secure legal counsel.

Robertson gave a closing statement which reiterated the perceived lack of time or financial resources to obtain counsel or their own handwriting analyst. Robertson noted her career experience as a registered nurse and that her position requires an expert level of documenting skill; she stated that she found it “appalling, offensive, inaccurate, and misguided” that the authenticity of the signatures she has gathered have been brought into question.

After hearing arguments from both sides and after having her clarifying questions answered sufficiently, Goldman called the hearing to a close. Goldman will have five business days to reach a decision; she indicated that all five days will be required and that her final decision will be delivered to Town Clerk Caligaris, who then will distribute the decision to Mitchell’s legal counsel and to the petitioners, on Monday, June 26.