Darien v. Town of Marble

159 P.3d 761, 2006 Colo. App. LEXIS 1918, 2006 WL 3316281

• Court: Colorado Court of Appeals
• Decided: November 16, 2006
• Docket: 05CA0587
• Status: Published

Opinions

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Opinion by

Judge CARPARELLL

Plaintiffs, Larry Darien, Dana Darien, Tom Williams, and Dan Brumbaugh, appeal the trial court's judgment in favor of defendants, the Town of Marble, the Town Board of Trustees of the Town of Marble, and Hal Sidelinger and Robert Pettijohn in their official capacities as members of the Board (collectively the Town). The Town cross-appeals for an award of attorney fees. We reverse and remand for further proceedings.

Plaintiffs alleged that the Town violated the Open Meetings Laws (OML), § 24-6-401, et seq., C.R.8.2006, and particularly § 24-6-402(2)(c), C.R.S.2006, by not including specific agenda information regarding the Board's January 8, 2004 decision not to undertake a construction project at a town park. The trial court found no violation, and this appeal followed.

I.

The Yule Marble Quarry, near the Town of Marble, is the source of marble that has been used for many well-known monuments, including the Tomb of the Unknowns in Arlington National Cemetery. Representatives for Arlington National Cemetery approached the owner of the quarry to obtain a replacement for the existing Tomb, which has deteriorated beyond long-term repair. The Marble Historical Society decided to oversee efforts to raise funds to quarry a new block for the Tomb. It appears from the record that the Historical Society asked the Town to appoint a committee to advise the Town Board regarding the project.

In October 2008, the quarry owner submitted a formal proposal to the Board that one block of marble be quarried as a replacement for the Tomb, that a second block be quarried as insurance against the possibility of damage to the first block during transport to Arlington, and that both blocks be placed at Mill Site Park for finishing. Mill Site Park is owned by the Town, and is the historic site of the mill at which Yule Marble was milled. The owner also proposed that, if the second block were not needed, it be kept and permanently displayed at the park.

The Town's Board authorized the mayor to appoint members to the Mill Site Committee, and to define the committee's roles and responsibilities to include advising the Board about gathering public opinion on the project and available options. The mayor proposed that the committee comprise two Board members, two Historical Society members, and two at-large members.

On November 1, 2008, the Mill Site Committee held a public meeting, which attendees described as ugly, divisive, and confrontational. The matter was discussed again at the November 6, 2003 Board meeting. The quarry owner presented the question of whether a museum and visitor center memorializing quarrying, carving, and transporting marble for the Tomb should be located in the Town. The Board permitted six citizens to address the issue.

When the committee met on November 19, those in attendance agreed that three additional members should be appointed to the committee. Plaintiff Dana Darien was selected as committee chair, and one of the Board members, defendant Hal Sidelinger, was selected as co-chair. The committee agreed to meet onee in December and twice in January. The mayor informed the committee that its role was to advise the Board regarding ways to gather public opinion on the proposal, to develop options, and to present them to the Board. The mayor told the committee it needed to report back to the Board by February 5, 2004.

The agenda for the Board's regular December 4 meeting included, under the caption "Administrative," "Authorize Town Attorney to contact SBA." It also noted that the committee would meet on December 11.

The Small Business Administration (SBA) had conveyed the park property to the Town with a deed restriction that limited use of the property. The Board's meeting minutes show that the Board authorized the Town attorney to contact the SBA to obtain its opinion about whether a variance to the deed restriction could be obtained to permit the construction of a small nonprofit museum, gift shop, and visitor center at the park.

At the committee's December 11 meeting, the mayor rescinded the February 5 deadline to allow the committee more time to complete its work. The committee discussed options about how to gather valley-wide public opinion, agreed that a survey of property owners and voters was necessary, and agreed that it would be necessary to contact the mayor and the Historical Society about funding. It scheduled additional meetings for January 15 and January 29, 2004.

The Town posted notice that the Board's regular meeting would be held on January 8, 2004, together with the meeting agenda, which included fifteen minutes for the following:

6. Mill Site Committee Update Hal 7:30 to Sidelinger 7:45 PM

e Authorization for Mill Site Committee survey expenditure(s)

e Endorse replacement of MSC member.

The following notices appeared below the agenda.

The next Town Board meeting will be held Thursday, February 5, 2004

The next Mill Site Committee meeting will be held Thursday, January 15 at 7:00 p.m. in the school.

At the January 8, 2004 Board meeting, Sidelinger read a portion of the Town's master plan that stated: "The community does not want to host more visitors by promoting, exploiting or otherwise marketing the Mill Site as an attraction. The historic site should be left in its existing state." Based on this part of the plan, Sidelinger said he could not support the project with a museum at the site. He also said he could support the quarrying of the stone, and perhaps the carving of the stone, but felt there should be no permanent display of the second stone. Acting in his capacity as a member of the Board, he then made a motion that the Board not allow a permanent structure for the Tomb project at the site, nor allow the see-ond block of marble to be on permanent display there. The Board approved and adopted the motion. The Board then appointed two new members to the Mill Site Committee to replace two who resigned. Although many townspeople who favored the project had attended several previous Board meetings on the project, none were present when the Board voted to reject it.

The minutes of the Mill Site Committee's January 15, 2004, meeting state that the committee's focus had changed and that the options that had been under consideration were no longer applicable because the Board had directed it to develop options for development of the site that fit the master plan. The committee cancelled the meeting that had been scheduled for January 29, 2004.

During Board meetings in February and March, plaintiffs and others protested the January vote. Plaintiffs wanted a chance to address the issue at the public meeting before the Board voted, and they asked the Board to rescind the January 8 vote. After the Board declined to do so, plaintiffs filed suit alleging violations of the OML.

IL

Plaintiffs contend that the trial court erred when it concluded that the public notice for the January meeting complied with the OML. We agree.

A.

Because the application of statutory requirements is a question of law, we review the trial court's decision de novo. Charnes v. Central City Opera House Ass'n, 773 P.2d 546 (Colo.1989); People ex rel. Woodard v. Colo. Springs Bd. of Realtors, Inc., 692 P.2d 1055 (Colo.1984); Elrick v. Merrill, 10 P.3d 689 (Colo.App.2000).

In accordance with § 24-6-401, "the formation of public policy is public business and may not be conducted in secret." To this end, a governmental body may hold a meeting at which it adopts, among other things, a policy or position only after "full and timely notice to the public." Section 24-6-402(2)(c). Such notice must be posted in accordance with the statute and include "specific agenda information where possible." Section 24-6-402(2)(c). The adoption of a policy or position without first providing "adequate and fair notice" to the public is contrary to the salutary purpose of the OML. Benson v. McCormick, 195 Colo. 381, 384, 578 P.2d 651, 653 (1978).

Yet the supreme court has also stated that the statute establishes a "flexible standard aimed at providing fair notice to the public." Benson v. McCormick, supra, 195 Colo. at 384, 578 P.2d at 653. When applying this flexible standard, we consider the nature of the governmental action, the importance of ensuring that the public has an opportunity to participate, and the extent to which giving notice would unduly interfere with the ability of public officials to perform their duties in a reasonable manner.

For example, because the nature of a committee meeting differs from that of a monthly board meeting, the requirement of full and timely notice for each also differs. Benson v. McCormick, supra, 195 Colo. at 384, 578 P.2d at 653. To ensure the public has an opportunity to participate, the absence of a measure's proponent or of a witness who has important information may require that consideration of a measure be postponed to a later date. And when there are unforeseen developments, it may be reasonable for a governmental body to consider unexpected measures regarding which no notice was given or to consider a measure out of order. See Benson v. McCormick, supra,

B.

Here, the action was that of a public board, and the Board's action rejected a project in which there was significant public interest. The community had formed a committee, which was investigating alternatives, had conducted meetings, and was scheduled to conduct two meetings in January. The Board had embraced the committee process, and the mayor had instructed the committee to suggest ways to obtain public opinion. Although the mayor first instructed the committee that it was to provide its report on February 5, he had extended that deadline before the Board met on January 8. It was anticipated that the new deadline would be in May.

The Board's approval of the committee process and the mayor's request for guidance on ways to obtain public opinion demonstrated that the community and the Board agreed that the public should be involved in the decision-making process. The Board made its decision regarding the project on January 8 in the absence of the project's proponents. Given the original deadline of February 5, and the mayor's grant of an extension of time beyond that date, it does not appear that giving notice of the Board's intention to make a final decision about the project at a later meeting would have unduly interfered with the Board's ability to conduct its business in a reasonable manner.

These cireumstances inform our determination of whether the Town gave full and fair notice that the Board would make a decision regarding the project at its January 8 meeting.

C.

The notice explicitly stated that there would be a Mill Site Committee update, that the update was scheduled to take fifteen minutes, that it would include authorization of funding for a survey of public opinion, and that it would also include the appointment of an additional committee member.

We perceive no ambiguity in this notice. It explicitly conveyed that the committee would bring the Board up to date regarding its activities. It also said the Board would consider whether to authorize funding for a public opinion survey. This agenda item was consistent with the cireumstances known to the public at the time of the notice. At its previous meeting, the committee agreed to advise the mayor and the Historical Society that funds were needed to conduct such a survey. The notice also stated that the committee would meet again the following week. Thus, the notice did not say that the Board would make a final decision and provided no basis for the public to infer that the Board would vote on whether to accept or reject the project at its January 8 meeting. Nonetheless, the Town asserts that the word "update" constitutes specific agenda information and includes the possibility of a vote during a town meeting.

"Update" means to bring up to date, Webster's Third New International Dictionary 2517 (1986), or, to incorporate new information, Random House Webster's College Dictionary 1464 (1991). Although the trial court stated only that "update" suggested there would be a report and discussion, we conclude that it plainly conveyed that there would be a report and discussion.

Despite the plain meaning of update, the trial court stated that it would not be unusual for a discussion to lead to a consensus regarding the resolution of an issue and, on this basis, concluded that the notice complied with the statutory requirement.

However, the OML requires full and timely notice including specific agenda information. Although in other cireumstances it might not be unusual for a discussion of an agenda item to lead to consensus regarding an issue, under the cireumstances here, the notice did not provide full and fair notice that the Board would make a final decision regarding the project. Instead, the most straightforward meaning of the notice was that the committee would continue its work at a meeting the following week. To conclude otherwise would enable governmental bodies to act without notice regarding matters of broad public interest even when giving notice would not unduly interfere with the bodies' ability to perform their duties in a reasonable manner. This interpretation would defeat the explicit requirements of the OML.

We conclude that the notice here conveyed that the committee's work would continue and, hence, that there would not be a final decision regarding the project. Therefore, we conclude that the notice was not full, adequate, or fair under the cireumstances.

D.

The Town also contends that it complied with the statute in that it was not possible to provide specific agenda information regarding the vote because it did not know there would be a vote. We are not persuaded.

The statute requires that notice include "specific agenda information where possible." Section 24-6-402(2)(c). The Town does not contend that cireumstances beyond the Board's control made it impossible to include notice of the vote. To the contrary, it contends that, upon the motion of Board member Sidelinger, the Board decided to depart from the specific matters stated in the agenda. Nor does the Town contend that urgent cireumstances required an immediate decision. As already noted, the mayor's most recent extension of time to the committee indicates there was no urgency.

We must interpret and apply the phrase "where possible" in a manner that is consistent with the OML's purpose of ensuring that public policy is not formulated in secret. Here, we conclude that the phrase "where possible" does not relieve the Board of the requirement to provide full and fair notice including specific agenda information. Given the Board's awareness of the extensive public interest, the absence of the project's proponents from the meeting, the lack of urgency, and the absence of evidence that postponement of the decision would have unduly interfered with the ability of the Board to perform its duties, application of the statutory phrase "where possible" as urged by the Town would be contrary to the OML's requirement of full notice. To decide otherwise would enable the Town to resolve a matter of known public interest away from the scrutiny of those known to be the most interested.

Therefore, we conclude the trial court erred when it held that the notice complied with the OML.

Under § 24-6-402(9), C.R.8.2006, in any action in which the court finds a violation of the section, the court has the authority to enforce the section by injunction and shall award the prevailing citizen reasonable costs and attorney fees. Accordingly, we remand to the trial court with instructions to issue an order declaring the January 8 vote regarding the project void and enjoining the Town to give public notice in accordance with the OML if it intends to vote on the Mill Site Park project again. We also direct the trial court to award plaintiffs their reasonable costs and attorney fees.

Because we reverse, we need not address the Town's cross-appeal for an award of attorney fees.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Judge J. JONES concurs. Judge CASEBOLT dissents.