Ordinance 2095 to put a charter amendment on the City and County of Broomfield (CCOB) Nov. 5 ballot to prevent extraction of minerals from open space failed on first reading, but the circumstances left open the possibility of the ordinance being brought up for another vote at a later date. Currently, Charter Section 18.3(b)(3)(B) has a “carve out” to allow for open space to be used for mineral extraction without requiring a “change of use” for open space.
In order to pass the first reading to move towards putting the ordinance on the Nov. 5 ballot, it would have required the majority of Council, or 6 votes. Council Members Groom and Jezerski were absent, leaving only 8 Council members to vote. The ordinance also faces a compressed timeline as it would need to pass through two readings by September for inclusion on the Nov. 5 ballot.
The first vote on the first reading was 4-4 as follows:
Yes- Council Members Castriotta, Kreeger, Shaff, Tessier
No – Council Members Beacom, Erickson, Law-Evans, Shelton
Not voting – Mayor Ahrens
Absent – Council Members Groom, Jezerski
The ordinance failed because it needed 6 votes. There was a question if the ordinance could be brought back for a vote when more members were present and the reply was only if one of the 4 Council Members on the “winning side” who voted “no” chose to bring it back.
Later, Council Member Shaff pointed out that the rules of procedure stated that the mayor had to break a tie vote. After some discussion, Attorney Sullivan stated that there had to be revote since Mayor Ahrens did not vote in the case of the tie.
The second vote on first reading was 4-5 as follows:
Yes- Council Members Beacom, Castriotta, Kreeger, Tessier
No – Council Members Erickson, Law-Evans, Shaff, Shelton
No – Mayor Ahrens breaking the tie.
The ordinance failed again, but if a Council Member who voted “no” wants to bring it back up for a vote, that Council Member is allowed to do so. The time constraint to get it on the Nov. 5 ballot would continue to be an issue.
Council Member Castriotta, who brought forward the ordinance, pointed to the current damage to the Nordstrom and Davis Open Spaces by the Extraction project as evidence of why this charter amendment was needed. She also pointed out that residents pay taxes to fund the purchase of open spaces and that she had only received letters of support from the community. Council Member Shaff stated he was perplexed why CCOB would spend $60,000 to make only Broomfield County Commons a Designated Outdoor Activity Area (DOAA) and then someone would not support this amendment to protect all open spaces. Council Member Kreeger stated the citizens felt duped regarding the current siting of oil and gas development on open space and the people should vote on this.
Council Member Law-Evans stated that, although she felt passionate about open space, it was the wrong time to bring forth this charter amendment since SB 181 gave Council new powers to develop a comprehensive strategy. She added she would extend the moratorium a year if she had to. Council Member Beacom said it made more sense to bring this forward in 2020 when COGCC rulemaking was complete. Council Member Erickson stated that there was no urgency for this ordinance since there was a moratorium until December during which there would be planning sessions to implement revised regulations in line with SB 181, including land use authority. Council Member Shelton stated that, since CCOB could not ban fracking, the current existing wording was meant to give CCOB the flexibility to push oil and gas into open space rather than near homes. He stated that putting it on the ballot would be “asking for a war” over possible liability.
Mayor Ahrens stated that he might have supported it if the bill did not allow surface drilling on open space, but that as written it would be considered “taking” of property rights and CCOB would be sued and lose. Council Member Kreeger reminded Council that SB 181 stated that leaving minerals in the ground was no longer considered waste. Attorney Sullivan stated that the waste “carve out” was for the State and that “you have clearer authority to do that in zoning.”