A petition prohibiting the use and operation of off-highway vehicles within the Town of Lake City was submitted by initiators John Coy and Larry Iiams on January 3, 2019; a protest of the petition was filed by two different individuals, Jesse Kendall and Ron Bruce, on February 6, and the public hearing for these protests was held at 5 p.m. February 19 in the Armory.
Trustee Richard Moore was nominated by his fellow trustees and Mayor Bruce Vierheller to serve as hearing officer leading the proceedings. Trustees
Dave Roberts, Jeff Heaton, and Jud Hollingsworth, as well as Vierheller were seated in the audience.
Positioned at the back of the room was Deputy Jordan Kaminski. Seated at the table in front of the moderate-sized crowd were Moore, Town Manager Caroline Mitchell, Town Clerk Jamie Turrentine, and Town Attorney Carol Viner.
Moore began by reading the rules: the only individuals allowed to speak were those who initiated the petition or those who brought the protest, and either party’s attorneys. No public comment was allowed. ‘Cross talk’ between audience members was also precluded; disruptive behavior would not be tolerated, Moore said, and he warned that should this rule be broken, the offender would be removed from the Armory.
First to speak was protest initiator Jesse Kendall, who offered three objections to the petition. First, he said, he believed the second paragraph of the petition, stating, “no off-highway vehicle, as the same is defined by CRS 33-14.5-101 et seq., shall be used or operated upon or within any street, highway, alleyway, sidewalk, pathway or other public thoroughfare within the territorial limits of the Town of Lake City” to be unconstitutional, as it binds future trustees from overturning the ordinance.
“It is neither fair nor constitutional to bind future trustees’ hands if they feel something is bad for the town. It sets forever a bad precedent for issues or ordinances that might need to be changed or revised in the future,” said Kendall.
Kendall said that he was also concerned about the language of the petition, that he was unable to locate Section 20-76 of Article IV of the municipal code and that nowhere on the petition appeared a question of yes or no to voters, all of which made the petition confusing.
Fellow protester Ron Bruce had submitted a letter to the town outlining his reasons for protesting and stated that he had nothing to add. In his letter, Bruce says the stated goal of the petition is to prohibit the use and operation of off-highway vehicles within the Town of Lake City, intending the town government to move forward with a ballot measure, not in the regularly scheduled sequence of balloting.
Bruce referenced a 2002 ruling by 7th Judicial Judge Steven Patrick regarding an appeal filed by then Deputy District Attorney Jeffrey Nims which referenced a case heard by then County Judge Larry Vickers in regards to a case of four Arizona OHV drivers who were cited by Hinsdale County Sheriff Denison for illegally operating OHVs on the streets of Lake City.
The machines they were riding were licensed and registered with the state of Arizona, and their attorney argued that under the interstate reciprocity agreement, such machines must be recognized as motor vehicles in the state of Colorado. Judge Vickers concurred and the parties were found to be not guilty. In turn, Bruce states, this ruling impacted all six counties within the 7th Judicial District.
A similar case arose in the town of Ouray in 2018, in which a town ordinance prohibited OHVs on town streets, and a Louisiana visitor — a seasonal resident of Lake City — was cited for similar circumstances as the 2002 local case. The OHV was licensed and titled in the state of Montana and the defendant pled not guilty. The case was initially dismissed by the town’s attorneys, who felt the ordinance was unenforceable as written.
The case did, however, appear before District Judge Keri Yoder, who ruled in favor of the town of Ouray, a ruling that Bruce contends “flies in the face of her [Yoder’s] senior, Judge Patrick,” and thus only impacts the town of Ouray.
Bruce’s letter, as quoted verbatim, says “Judge Patrick’s ruling would then be believed to remain sacrosanct until a new case might come to light and run through an appeal process taking it to the state Appellate Court. That then being a higher court than Judge Patrick’s, whatever ruling was handed down would then take precedent for the entire State of Colorado. It would either change the status quo in this District, or keep it as it is now.”
In the end, the petition seeks to ban all OHVs, yet Judge Patrick’s ruling will continue to allow machines from Arizona, Utah, Wyoming, Idaho, Montana, South Dakota and Ohio. I would beg in my protest that the wording in the petition is such that it does not take that into consideration and would need to be re-submitted with those exceptions,” Bruce’s letter concluded.
Next to speak was attorney Terry Camp, counsel for the petitioners, from the law firm Brown & Camp, from Delta, Colorado.
Camp said he had submitted a brief to the Lake City Town Clerk stating that their position is that “neither protests provide valid protest under Colorado law. For example, Mr. Kendall has the opinion that the second paragraph may be unconstitutional because it binds future trustees. To put it bluntly, that’s not really relevant today. The town can’t consider whether or not the petition is unconstitutional. That is a decision ultimately left up to the courts.”
Camp explained that just as congress or a town council or a state legislature can pass a law that turns out to be unconstitutional, as ruled such by the courts, it is the same thing in the form of a petition. “The petition is the people’s ability to petition for legislation,” he said. “In effect, the people are putting forth the law. And as happens on occasion, laws can be unconstitutional, whether propagated by legislature, a town council or a petition. Whether or not the petition is unconstitutional is irrelevant for whether or not it belongs on the ballot. We are here to determine if the petition is within the bounds of Colorado law, if it is proper and if it can be passed along to the voters.”
Moore said, “Just to be clear, what you’re saying is that these protests are jumping ahead of the time schedule. It’s not that their protests are not valid, it’s that it is not, in your assumption, the correct time to do so. It has to go to a vote, and be passed, and then the unconstitutional relevance can be determined. And if it doesn’t pass, obviously it doesn’t matter. The protests at this point can only contest if there is a problem with a signature, or written in the wrong form or those sorts of things.”
Camp concurred, saying Moore was correct.
Moore closed out the meeting, “Pursuant to CRS 31-11-1103, the hearing officer will issue a written determination of whether the petition is sufficient or not on February 25, 2019.” Moore has five days to review the materials, potentially seek legal counsel from either side, and he will then issue a written statement at that time.
Town Manager Mitchell reminded audience members that there would be a regular Board of Trustees meeting the following night, February 20, which included in workshop the OHV Working Group’s recommendations for the trustees.
At the February 20 workshop, all Trustees were present except for Alan Rae, as well as Vierheller and Mitchell. Representatives for the OHV Working Group were Danielle Worthen and Doug Hamel.
The OHV Working Group began meeting at the end of 2018 and committee members who have taken part at varying degrees based on availability include trustee representatives Richard Moore and Marty Priest, County Commissioner representative Susan Thompson and community members Nancy Chambers, Sara Gutterman, Doug Hamel, Lyn Lampert, Peter Nesbitt, Phil Virden and Danielle Worthen.
After months of gathering information and discussion options for OHV use in Lake City, the group put together a handout featuring two possible options. The packet begins with an overview that states, “The purpose of the OHV working group was to propose a possible compromise to the current Town of Lake City OHV ordinance. We are not advocating for a specific side and have worked to find a balanced solution that will hopefully gain support from a majority of the community. We feel that it is a privilege to ride OHVs into Lake City and on Hinsdale County roads, but it is not a right. We
feel we are a welcoming community, but will not
tolerate a lack of respect for our treasured environment and the absence of common courtesy.”
Topics that were discussed at the OHV Work Group meetings included economic benefits of OHVs and
non-motorized activities and events, economic hindrances on businesses if OHVs are not allowed at all, a proposed pilot project to complete the Alpine Loop, the Alpine Loop Visitor Use Study written by Kendall Cox (see page 4 this week’s issue), the Patrick vs. Yoder ruling, OHV enforcement, reduction of speed limits, the idea of a ‘locals OHV’ sticker for residents and property owners, designated parking areas, dust, noise and safety concerns in residential areas, limited route possibilities, review of OHV ordinance annually and the importance of OHV ordinance public education.
Worthen began the presentation by saying that the group was formed to try and propose a compromise in response to the petition that opposed the current ordinance allowing OHV access to all town streets.
“We met every week in December and up until January 10.” Worthen said. “What we were trying to determine was, can we figure this out without having to go to special election?”
The Working Group proposed two options: option one – OHV Multi-Day events where OHV use is limited to event days only. Option two – a limited town/resource access route to use all year long.
Worthen reiterated that the Working Group was not advocating for any specific option, that they were only presenting ideas for consideration.
Hamel took the floor, presenting the two options. He explained that option one, OHV multi-day events, would need to be planned and executed by event organizers. There would be limited access to town and county roads and Highway 149 that would be limited to the special event only. Scheduling, routes and event operation would have to be coordinated with the Chamber of Commerce and approved by the Board of Trustees. Special use permits would have to be obtained from governing bodies having jurisdiction over roads in any proposed routes.
The positive aspects of option one include a reduction of OHVs in town residential neighborhoods, which would potentially lead to the reduction of complaints, along with the reduction of dust, traffic, noise and parking complaints. This option would allow OHV tourists to understand that they are still welcome to visit, and may still trailer their OHVs to Lake City, trailer to staging areas in the county and enjoy the backcountry without driving on town streets.
Negative aspects to option one include the fact that it will be hard to inform tourists, as people are already booking for summer of 2019, and education, as getting the public “dialed-in” on OHV event dates would be difficult and potentially frustrating to visitors. Additionally, business owners, the town and the county are concerned about loss of business; OHV riders would not be able to travel from their Lake City accommodations to the Alpine Loop without trailering; Owners of OHVs (excluding licensed and out-of-state) would not be able to drive on town roads outside of OHV weekends; there would be potential trailer and OHV parking issues with trailers and OHVs parked on town streets, possible staging congestion on County Roads 20 and 30, and a possible effect on tourism from Silverton and Ouray.
Option two would require a modified ordinance, which would allow OHVs year-round access to certain Lake City roads on designated routes. OHVs would have access to most Lake City businesses and campgrounds, the Sheriff’s Office, the Medical Center and other government facilities. OHVs would be able to complete the Alpine Loop, dependant on approval of the Highway 149 pilot program. This option would allow the most direct access from accommodations to the resource access route.
A potential route has been proposed, (see map, page 9) which would include County Road 20 on Henson Creek via Bluff Street to Second Street, with Bluff Street access not allowed north of Second, Second Street to Highway 149, Silver Street between Second Street and Fourth Street, Third Street from Silver Street to Highway 149, Fourth Street from Silver Street to Highway 149, then across Highway 149 at Second Street to access Henson Street. The three crossing points would help reduce traffic congestion. Full-length access of Henson Street between Highway 149 and River Fork RV Park would provide access to Lake City Auto and is within one to two blocks walking distance to the Country Store and Lake City Bakery on Highway 149.
The crossing at Highway 149 at Seventh Street would allow access to Alpine Village and a right turn onto Bluff Street would provide access to Elkhorn RV Park. Going North on Bluff Street would allow access to Elkhorn RV Park and a right turn on Eighth Street, allowing access to the Post Office and Visitor’s Center.
The positive aspects of this idea, according to the Working Group, include maintaining current OHV policies and already planned OHV trips would not be affected. There would be year-round OHV access from businesses straight to the Alpine Loop, and it would make it easier for the Sheriff’s Office to enforce the OHV ordinance. It would reduce the number of OHVs in town residential neighborhoods because OHVs would be restricted to the resource access route, and there would be direct access from the resource route to accommodations.
The negative aspects of this option include the fact that parking of OHVs and trailers would be an issue that would still have to be addressed, there would be OHV congestion along the limited access route, and not all Lake City businesses are located along the limited access route.
With the presentation concluded, Worthen asked trustees if there were any questions, and trustee Hollingsworth took the opportunity to thank the members of the Working Group for their time and efforts.
Mayor Vierheller concurred, saying that the information presented would be considered, and that the Town would be conferring with their lawyers in regards to the matter.
Trustee Richard Moore also thanked the group and said, “I just want to say that it is discouraging that the individuals who have raised so much consternation are not in the audience. I would like to say that on record. It’s pretty disappointing that they wouldn’t be here to hear what the compromise group came up with.”
Following the Working Group’s presentation, Sheriff Justin Casey and Deputy Jordan Kaminski addressed trustees in regards to enforcement of OHV traffic, a full report of which will appear in the March 1 issue of SILVER WORLD.
Vierheller reminded audience members that a special OHV meeting will be held in the Armory February 27 at 5 pm so the public can make comments regarding the Working Group’s presentation and ideas.