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06/27/2007: "CC To Court On Referendum? Knapp Vote May Decide"

(Alex Gavora asks Council to allow the citizens right to vote on stormwater fees)

At the Tuesday council meeting, Councilman Lichter, Ranker and Myhr voted to go to court to stop an election on stormwater fees, Councilman Peterson voted against filing a lawsuit, and Rosenfeld expressed misgivings, stating “We don’t need to rush into it, and a lot of people supported the Referendum…I don’t know, I could go either way”, then abstained from voting. Councilman Gene Knapp was absent from the proceedings.

Failing to get the necessary votes, the Council decided to wait for Councilman Gene Knapp to return to cast the potentially deciding vote. One problem, there is no meeting next week, so it will be at least two weeks before they can take up the matter again.

The question to, or not to, challenge the legally of the Referendum had been discussed by the Council at their Monday staff meeting, and based on comments made by Knapp, it is expected he will vote to authorize the Prosecutor to file a lawsuit.

Alexandra Gavora started the petition drive to place a referendum on the ballot, and she expressed her concern that, even if the court ruled against the County and allowed the election, it might then be too late to have a full exchange of opinions in a public forum, and prepare the arguments for and against, that are necessary to conduct a fair and informed election. She told the Council that they will “cut the legs” from under the referendum process by going to court.



Deputy Prosecutor Karen Vedder reminded the Council that at any time they could go back and re-do how they finance the stormwater ordinance; that there were four methods available to them. With respect to the referendum, she said there are rules that say when people have the right to speak on legislative matters, and that in some GMA issues, the public does not have the right to question the decisions of the legislators (e.g. the County Council). The question is: Is the Referendum about fees (allowed to question), or is it about land use (not allowed).

Former Freeholder Charley Bodenstab told the council that it was the past actions of the Board of County Commissioners that resulted in a Charter form of government, which included the right of the people to question the actions of the Council by allowing a vote on a referendum, and that if “the first referendum is to be challenged by you, or for you to second guess it, is to damage your image, and will be a set-back for the County Council”:

After the close of the public hearing, and some discussion, Lichter said “we need to clarify the powers of the referendum”, and made a motion to authorize the Prosecutor to go to court. The motion failed to get a second.

Myhr said the matter before them had “little to with the Charter, it is a GMA (Growth Management Act) matter”, and that to not go to court “will only delay the pain”.

Councilman Peterson said that if they go to court, ”We will be standing in the way of the Referendum; and were going to ‘wear it’” Peterson also appeared to have had enough of Ranker twice telling him he had an obligation to uphold the law because he had taken an oath of office, and told Ranker “I am not breaking a law by voting against a motion” to go to court.

If the final vote is to go to court, the judge will decide if County Prosecutor Gaylord’s office is correct that the court may find the stormwater fee ordinance is a land use issue, and therefore not subject to the referendum process. If the court decides Gaylord is correct, the voters would be denied the right to vote against the stormwater fees.

Gaylord told the Council he does not know how the court will rule; but it is also unclear who will speak “for the people” who signed the petition. Presumably the County is going to arguing against allowing the referendum to proceed to a vote. But who would argue the other side of the question, that how stormwater fees are collected is not a land use issue, only a financial question, and is subject to a vote of the people. It is only one of a number of questions left unanswered by Tuesday’s meeting.