David Abelson: ‘Neighborhood’ ballot issue likely unconstitutional

Over the past 25 years, Coloradans have voted on myriad citizen initiatives; some good, some bad, some legal, and some, like the anti-gay rights Amendment 2 of the early 1990s, unconstitutional. Boulder has mirrored the statewide trend.

This fall, Boulder will vote on two municipal growth-related initiatives aimed at divesting our city council of its authority to manage growth. I don’t always agree with council’s decisions, and I have some concern about the recent pace of development in town. However, I strongly oppose these initiatives as they will disenfranchise most of the Boulder electorate. I also believe one is unconstitutional.

The group sponsoring these initiatives calls itself “Livable Boulder,” an upbeat name along the lines of “Americans for Prosperity.” It is hard to oppose the message being conveyed by either group through their chosen names. After all, most of us are seeking a livable community and prosperous life.

In Boulder, the many debates over growth, transportation (think “right-sizing”), open space acquisition, arts funding and other related issues go to the core of what it means for our community to be “livable.” We might disagree on how we define “livable,” but under our political and constitutional framework, each of us has an equal right to engage in the political process. In contrast, under the “neighborhood right to vote” initiative, that fundamental right would be limited. As a result, that initiative is likely unconstitutional, as the right to vote on land-use changes would be limited to a select group of voters.

Specifically, Article V, Section 1 (9) of Colorado’s Constitution provides that the initiative and referendum power is reserved to “the registered electors of every city, town, or municipality.” A plain reading suggests that, as applied at the local level, all voters, not just a select few living in the adjacent neighborhood, have the right to vote on any land-use change council might adopt. The power to overturn the decision of council likely cannot be limited to a subset of the whole electorate, but that’s exactly what the backers have proposed.

The ironic part is that Livable Boulder states on its website that the initiatives were “born out of a concern for democracy.” Yet, the “neighborhood right to vote” initiative limits the thing it purports to support — community engagement. Only a small fraction of the city electorate would effectively be granted a veto power over a valid council action. That approach does not foster greater democracy; instead, it disenfranchises the rest of the voters.

The initiatives also raise the question of for whom Boulder would be livable. Those of us who own our houses would certainly benefit financially as the initiatives would stymie new development and raise current prices even higher. But how about the children who grew up in Boulder? Would the initiatives make Boulder livable for them if they hope to live in Boulder and pursue a career here? How livable would the initiatives make Boulder for people who need to move their parents here to care for them, or renters, teachers, the police and service workers? The initiatives will not make life better for them, but will push people further into Boulder County and beyond, thereby increasing the number of in-bound commuters.

Under these initiatives, appropriate, welcomed changes will be squelched. We can do better.

Let’s continue to debate growth and other related issues. It is part of Boulder’s history and DNA, and will be for generations. Let’s not support initiatives that threaten our ability to address the future proactively — and let’s certainly not support changes to our laws that would limit community engagement and divest most voters of the right to weigh in on these critical issues.

David M. Abelson is an environmental attorney and 25-year resident of Boulder.

Article originally published in the Daily Camera on 08/29/2015