Witcher v. Canon City

LOHR, Justice,

concurring in part and dissenting in part:

I respectfully dissent to the majority’s holding concerning the issue of referendum.1 In my opinion, the city council’s approval of the eighth amendment to the lease was a legislative action and, as such, is subject to a referendum by the people under article V, section 1, of the Colorado Constitution. The judgment of the district court should be reversed and the case should be remanded for further proceedings.2

The people’s reservation of the power of referendum in the constitution must be liberally construed in favor of the right of the people to exercise that power. Margolis v. District Court, 638 P.2d 297, 302 (Colo.1981); Aurora v. Zwerdlinger, 194 Colo. 192, 195, 571 P.2d 1074, 1076 (1977). The majority correctly notes that article V, section 1, of the Colorado Constitution reserved the power of referendum only with respect to acts that are legislative in character. Majority op. at 449; Margolis v. *458District Court, 638 P.2d at 302; Aurora v. Zwerdlinger, 194 Colo, at 194-95, 571 P.2d at 1075-76. I believe, however, that the standards governing the characterization of a governmental action as either legislative or administrative have been improperly applied to the facts by the majority, with the consequence that the result reached is incorrect.

At the outset, the majority fundamentally misconceives the nature of the action taken by the city council. By approving the amendment, the council did more than amend a lease. It decided to undertake a significant capital improvement at a cost to the city of $1.5 million. The capital improvement involves a structure that generates at present approximately $0.5 million dollars of revenue per year for the city, an amount that constitutes approximately fifteen percent of the city’s budget.3 The amount of revenue derived by the city from the bridge is projected to increase to approximately $1.5 million dollars per year by the year 2000. Moreover, the improvements are calculated to extend the life of the bridge for at least thirty-one years beyond the expiration of the lease in 2001. Approval of the lease amendment was simply the vehicle through which the city council expressed its decision to undertake this improvement and provided the mechanism by which the city will finance the improvement. The decision by the city to undertake something of such significance can only be characterized as a legislative policy decision, not merely administrative action.

As noted by the majority, one of the “tests” for determining whether an act is legislative or administrative is whether the act constitutes a declaration of public policy or whether passage of the act simply carries out existing legislative policies. Majority op. at 449; Margolis v. District Court, 638 P.2d at 303; Aurora v. Zwerdlinger, 194 Colo. at 196, 571 P.2d at 1077; 5 E. McQuillin, Municipal Corporations, § 16.55 at 194-95 (3d ed. revised 1981). In applying this standard, the plaintiffs argue that the council’s action was legislative because it reversed a purported policy expressed in the lease that the city would not bear any of the costs of maintenance or modification of the bridge. The city responds, and the district court and the majority agree, that there is no merit to this argument because the lease did not require the lessee to make capital improvements to the bridge of the nature contemplated here. See majority op. at 451. But, this is precisely the reason why this action is legislative. Accepting the district court’s reasonable construction of the lease as not requiring the lessee to make capital improvements means that the city has made a new policy decision — not expressed by the city in the lease or elsewhere before the passage of the eighth amendment — to undertake the substantial capital improvement of an important city asset. The fact that the plaintiffs do not pursue this line of reasoning — for the obvious reason that the plaintiffs object to this action by the council on the grounds that the existing lease obligated the company to undertake the improvements contemplated without contribution from the city — does not obscure the true nature of the city’s action. Cf. Citizens Against A New Jail v. Board of Supervisors, 63 Cal.App.3d 559, 134 Cal.Rptr. 36 (1976) (proposed ordinance that would require renovation of existing county jail rather than construction of new jail was a legislative matter and therefore subject to the people’s power of initiative).

Another of the “tests” for determining whether an action is legislative or administrative is whether the action relates to a subject of a permanent or general character or a subject of a temporary or special nature. Majority op. at 449-450; Margolis v. District Court, 638 P.2d at 303-04; Aurora v. Zwerdlinger, 194 Colo, at 196, 571 P.2d at 1077; 5 McQuillin, Municipal *459Corporations, § 16.55 at 194.4 Applying this standard to the facts, the majority concludes that the passage of the lease amendment at issue is “clearly an administrative act,” majority op. at 450, because it relates to the amendment of a lease with a fixed termination date and because it limits the reduction in tolls to a period during the existing lease term necessary for the lessee to recoup the portion of the improvement costs to be borne by the city, majority op. at 450. The majority's analysis is unpersuasive. This is not simply a lease amendment with little effect beyond the life of a relatively short leasehold. Instead, the lease amendment is a financing mechanism by which the city has committed itself to acquire and pay for a capital improvement of vast significance to the affairs of the city, its people and its government — an improvement that will have a life and an effect for at least thirty years beyond the life of the existing lease. This is not an action of a temporary or special character, and the duration of its impact should not be measured solely by the time in which the bridge will generate sufficient income to cover the costs of the improvements. It is a legislative act of a substantial and general nature, having a long-term impact on city finances. This is hardly comparable to a decision concerning “a contract for professional services or for a roof on a police station.” See majority op. at 450.5

Whether a city’s decision to construct, modify or purchase any particular improvement is legislative or administrative is a difficult question, and the courts of this nation have not always taken consistent or reconcilable positions when confronted with these situations. See 5 McQuillin, Municipal Corporations, §§ 16.55 to 16.59; 13 E. McQuillin, Municipal Corporations, §§ 37.56, 37.80 (3d ed. revised 1971). Because the proper characterization of each such decision is so dependent upon facts concerning the characteristics of each improvement and the context in which the improvement is to be made, it would be unwise to hold as a matter of law that every governmental decision to undertake a capital improvement is a legislative act. However, under the circumstances presented here, it must be concluded that the decision by the City Council of Canon City to undertake the contemplated improvements to the Royal Gorge Bridge was a declaration of public policy that will have an impact for years to come and therefore was a legislative act, subject to referendum under article Y, section 1, of the Colorado Constitution. Accordingly, it is not necessary to consider whether the council’s decision is also subject to referendum under article IX, section 1, of the City Charter of Canon City or whether the referendum power under the city charter is more expansive than that reserved to the people under the Colorado Constitution. See City of Aurora v. Zwerdlinger, 194 Colo. at 195, 571 P.2d at 1076.

The judgment of the district court should be reversed and the case remanded.

*460I am authorized to say that ERICKSON and DUBOFSKY, JJ., join in this concurrence and dissent.

. I concur in parts III and IV of the majority opinion.

. The district court granted the motions for summary judgment filed by defendants Canon City and the Royal Gorge Company. The plaintiffs did not file a cross motion for summary judgment.

. In an affidavit attached to their response to the defendants' motions for summary judgment and at oral argument on the summary judgment motions, the plaintiffs represented that the amount of revenue derived by the city from the lease payments totalled approximately fifteen to seventeen percent of the city's budget. This is not otherwise corroborated. However, the city did not protest this representation, and it is accepted for the purposes of this dissent.

. If an act is deemed to be legislative under one of the first two "tests" outlined in the majority | opinion and in Margolis and Zwerdlinger, it is unclear whether that act must be examined under the other “test” and what the consequences would be if, under this second “test,” a contrary conclusion is reached. The interrelation between the first two tests has never been explained in our decisions. This uncertainty need not be addressed here, for the city’s action is legislative when measured against either of the first two tests.

. Because the council’s action is legislative when measured against the first two “tests,” there is no reason to apply the majority’s third “test,” which provides that if an original act is legislative, an amendment to that act is also legislative. See majority op. at 450, 451. In articulating this third “test,” the majority may have overstated our holding in Margolis v. District Court, see 638 P.2d at 304, which was simply that "rezoning decisions — no matter what the size of the parcel of land involved — are legislative in character and subject to [referendum under the Colorado Constitution].’’ Id. at 304. There is much in Margolis to suggest that this conclusion in the rezoning context may not be read expansively as a ruling that any amendment to a legislative act is also necessarily legislative. As there is no need to apply the third test, there is no reason to explore this issue further.