When Mark Kaiser heard a Wal-Mart might be moving into his Westminster neighborhood, he decided to do something about it.
He rallied his neighbors and organized petitions against the store. He staged pickets at the proposed site. And when the key public hearing before the City Council came up last week, he wrangled 500 people to attend, dozens of whom told the council they absolutely did not want Wal-Mart moving in next door.
The council, however, couldn’t take any of that into consideration.
That’s because a little-known requirement governing city land-use hearings restricts what council members can consider when deciding whether to allow development.
If people want to argue against the development’s site plan – for example, that it might have an inadequate drainage system – the council can weigh that information. But if residents argue that they don’t want the development in their neighborhood – no matter how many people say it or how loudly – that doesn’t make the cut.
It’s called a quasi-judicial system – council members acting as judges in a trial-like setting. It’s designed to guard against backroom deals, but it frustrates residents and elected officials alike.
“It is not a good thing,” Kaiser said. “It seems to take the citizens out of the process.”
The Westminster council, after the five-hour public hearing last week, voted 6-1 to approve the Wal-Mart.
Just before the vote, several council members said they understood residents’ concerns but, because of the quasi-judicial limitations, they could only consider arguments about the proposed plan and how it measured up to the city’s development criteria.
“It truly is following the law at that point,” Councilwoman Sam Dixion said of the council’s actions. “That’s a hard place to be. I don’t know that any of us like it, or like that law.”
Council decisions fall into two basic groups: legislative decisions, which are usually about policy items such as raising water rates; and quasi-judicial decisions, such as deciding on liquor licenses and development and zoning cases.
The quasi-judicial requirements spring from state law, case law and constitutional protections of due process.
Council members cannot talk to anyone about proposed developments prior to a quasi-judicial public hearing. And they face the threat of lawsuits if they violate the rules.
In these cases, city council members must consider only evidence presented at a public hearing and make their decisions by applying that evidence to existing city codes.
Tami Tanoue, the claims manager for the Colorado Intergovernmental Risk Sharing Agency, said when residents simply complain that they don’t like a particular business or don’t want a development built next to them, they aren’t making an argument the council can consider.
“These are not criteria that can validly be considered because they don’t appear in the city’s own codes and ordinances,” she said. “The citizens have to play by the rules of the game.”
Nancy McNally, Westminster’s mayor, said council members must weigh the rights of the developer and their private property with the rights of residents to have a say over what gets built. Quasi-judicial proceedings, she said, bring fairness to decisions: everybody gets a say before the council and everybody abides by the same rules.
“To me, that’s how people should want us to do business,” she said.
Thornton Mayor Noel Busck said quasi-judicial restrictions don’t have to stop councils from considering residents’ opinions when making their decisions. Many cities have codes that proposed developments be “harmonious” and “compatible” with the surrounding area.
If residents are so outraged by a proposed development, then the development doesn’t meet the city’s requirements for harmony and compatibility, Busck said.
Last year, when residents in northern Thornton fought a proposed Wal-Mart, that city’s council killed the proposal. Busck said at the time that he didn’t want to divide the community.
Still, Busck is no fan of the quasi-judicial process.
“I think it’s a terrible system when elected officials can’t converse with citizens prior to a public hearing,” he said. “I think it’s difficult for citizens to understand why I, as their elected mayor, can’t talk to them.”
He suggested legislators do away with the system.
That’s something Kaiser, the Wal-Mart opponent, would have no problem with.
“The citizens know what they want to see in their community, how they think their community should look and feel,” Kaiser said. “If they get their input taken out of the equation, then it’s just not a good thing.”
Staff writer John Ingold can be reached at 720-929-0898 or jingold@denverpost.com.
