Questions surround enforcement of trail funding cap
A piece of the county resolution that led to the creation of the widely-supported Open Lands, Rivers and Trails fund is at the center of discussions regarding how the money should be used.
At a county workshop on Tuesday, scheduled to discuss how Open Lands, Rivers and Trails money should be distributed, the Grand County Board of Commissioners and attendees briefly discussed the fund’s 15 percent cap for trail projects.
The cap has come under question because the 15 percent limit was not included in the ballot language or the Blue Book, meaning voters may have been unaware of the restriction on trails funding, but it continues to be enforced when distributing money.
“The reason it keeps coming up is because there’s such uncertainty about it,” said Meara McQuain, executive director of Headwaters Trails Alliance. “From our organization’s perspective and from the public perspective, I think it would be helpful to have an answer, whether that’s a third opinion or a (declaratory judgement), that would just put the matter to rest. We just want to do what’s right.”
The Open Lands, Rivers and Trails fund, which was created through the passage of ballot measure 1A in 2016, generates money through a .3 percent county sales tax for the protection, conservation and acquisition of lands and rivers, as well as trail maintenance.
According to the county resolution language, entities can request funding for trail maintenance, “though no more than 15 percent of the funds for the competitive grant awards may be utilized for this purpose.”
Grand County Commissioner Rich Cimino said that language was included in the resolution based on surveying done by the Headwaters Land Trust that showed county resident support for limiting funds to trails.
“The two reasons is that polling showed the cap was favored by a portion of the county and also the rationale that all of the money would go to trails somehow if not capped somehow, so I think that’s why the cap was there,” he explained.
However, the ballot measure voters saw in November 2016 did not include any language regarding a limit on trail funding. Because of this, the legality of enforcing the cap remains unclear.
Cimino said that county attorneys, present and former, believe that because of election law and Colorado’s Taxpayer Bill of Rights, or TABOR, the county must enforce the cap or risk threatening a lawsuit.
“Our attorney said the district attorney can bring charges against us if we (ignore the cap) and that may be a stretch, but I think he’s right,” he said.
Maxine LaBarre-Krostue, interim attorney for the county, declined to comment on the county’s legal opinion regarding the 15 percent cap.
Others disagree with the county’s interpretation.
The town of Fraser sought a legal opinion on the 15 percent cap to get clarity on the situation since it partners closely with both the county and the Headwaters Trails Alliance, the county’s only trail maintenance organization, according to town manager Jeff Durbin.
“There were a lot of people talking about their personal opinions and philosophical goals and differences, but really it comes down to what does the law provide as far as what’s right or wrong on this so that’s why we sought the legal opinion,” Durbin said.
The legal opinion sought by Fraser, which was given by Paul Wisor, a lawyer with expertise in public finance and municipal law, argues that the enforcement of the cap renders the ballot measure misleading because it wasn’t included in the ballot language. It also argues that the County Commissioners could legally amend or ignore the cap when distributing funds.
Durbin said the town doesn’t have a formal position on the cap, but just hoped that having a legal opinion would help move conversations along.
“We’ll continue to engage in the conversations, but where it goes and what the town’s ultimate position is, remains to be determined,” he said.
Unfortunately, one of the potential consequences of legal questions is they could invalidate the tax and lead to the elimination of the fund, which would be detrimental to the organizations it supports, as well as the county, which benefits from the projects done with the money.
McQuain said the Headwaters Trails Alliance has benefitted from the access to extra funding through the tax, but the cap and the differing legal opinions on it have caused confusion.
Regardless of whether the cap changes, is removed or remains, Maire Sullivan, a Headwaters Trails Alliance employee, explained that getting clarity on the cap will help the organization have a better understanding of how much money is available and how much time they should dedicate to going after funds.
“It seems to me like if there was some sort of (declaratory judgement) of the opinions by a neutral third party or however the process works, it would benefit everybody,” Sullivan said. “It would allow all of us to move on from there.”
Cimino said it would likely take another ballot measure to change or remove the cap since, with the current legal advice given to the county commissioners, the board plans to continue enforcing the 15 percent cap.
“I do not see this board trying to be radical and just ignore the cap anytime in the next two years,” he said. “I think the only way for that cap to be moved or adjusted or removed is with a new ballot question that has to pass by the voters.”
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