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By Mike McKibbin

Should the City of Wheat Ridge spend more than $450,000 on four specific projects or send $14.72 checks to every city resident?

City voters will decide that question in the Nov. 6 general election, along with a question giving the city permission to pursue the installation of broadband services for residents and businesses at some point in the future.

City Council approved both ballot issues by 7-0 votes at its Aug. 13 meeting, after discussions in July and early August.

The refund question follows city voter approval of a November 2016 ballot question to increase debt by up to $33 million and increase the city’s sales and use tax rate by a half cent for 12 years, or when $38.5 million is raised, for the “Investing 4 the Future” infrastructure projects.

At that time, a required Taxpayers Bill of Rights, or TABOR, election notice to voters included an estimate the tax hike would raise $3.7 million in 2017. However, the city received nearly $4.2 million, $457,931 more than the allowed amount.

A memo to council explaining TABOR’s “underestimate clause” stated if a new tax brings in more revenue in its first year than projected in an election notice, the taxing entity must refund the excess money and change the tax rate to match the actual revenue amount. Instead, a government may seek voter approval to keep the excess revenue and maintain the tax rate.

City voters will see this language on the Nov. 6 ballot:

“Shall the City of Wheat Ridge be entitled to retain all revenues from the 2016 voter-approved ballot question 2E, 'Investing 4 the Future' 1/2 cent per dollar sales and use tax rate increase, and to continue to collect the tax at the 1/2 cent per dollar rate and expend said revenues including any interest and investment income therefrom, until revenues from such tax increase reach $38.5 million or Dec. 31, 2028, whichever occurs first, in the following ways directed by the voters in 2016:

• Anderson Park improvements;

• Wadsworth Boulevard reconstruction – 35th Avenue to Interstate 70;

• Wheat Ridge – Ward commuter rail station area;

• Clear Creek Crossing – mixed-use development site on the west side of I-70 at 38th and Youngfield;

without refunding any amount for exceeding the revenue estimates in the election notice mailed to voters in 2016?”

City Manager Patrick Goff told the council he created a percentage breakdown of how much excess revenue could be directed to each project identified in the 2016 question.

“But a TABOR expert we talked to advised against that because they’ve found it’s very difficult to enforce and comply with,” Goff added.

Councilman Larry Matthews said he would rather the city be able to cover over-budget expenses on each project instead of potentially “adding more work just to spend the money” in the 2016 ballot question.

City Attorney Gerald Dahl explained if city voters decline the ballot question, things like free days at the city recreation center or a “tax forgiveness day” could be used as refund measures.

“Almost any effort, if it’s an earnest and honest effort, has been accepted by the courts,” he said.

Councilwoman Monica Duran noted the average refund to each Wheat Ridge taxpayer is an estimated $14.72.

“It’s not like anyone is getting two grand back,” she said.

Councilman Zachary Urban supported designating 25 percent of the excess revenue to each of the four projects to help voters understand where the money would be spent.

City Clerk Janelle Shaver, a former city councilwoman, noted Wheat Ridge voters had historically “easily passed” similar TABOR measures, “if the city was specific about the uses for the money.”

Dahl told council an El Paso County District Court ruling in March found ballot language to allow the county to keep and spend excess revenue overrides the TABOR amendment. That legal challenge was filed by the author of the amendment, Douglas Bruce, Dahl added, and Bruce has appealed the ruling.

Dahl said the city could wait until that issue is finally resolved through the appeals process. However, putting the excess revenue in escrow until that time would violate the TABOR refund requirement, he added.

Councilman George Pond favored waiting until the challenge was settled, while Councilman Tim Fitzgerald worried the city could also be sued if it waited, leading to late fines or attorney fees, which he said could add up to significant costs.

“I think it’s silly for us to spend $1 or $2 to mail $14 checks to everyone in the city,” he added. “We need the money.”

Broadband question needed due to state law

The broadband issue stems from a bill passed by state lawmakers in 2005 that prohibits local governments from providing cable television, telecommunication or high-speed Internet services, directly or indirectly, unless local voters approve.

City voters will see this language on the Nov. 6 ballot:

“Shall the City of Wheat Ridge, without increasing taxes by this measure, and to restore local authority that was denied to local governments by the Colorado General Assembly and foster a more competitive marketplace, be authorized to provide high-speed internet, including improved high bandwidth services, telecommunications services, and/or cable television services to residents, businesses, schools, libraries, non-profit entities and other users of such services either directly or indirectly with public or private sector partners, as expressly permitted by article 27, title 29 of the Colorado Revised Statutes?”

Goff noted the broadband question does not compel the city to do anything, it just gives the city the option to provide high-speed Internet access.

“We don’t really know the role of local government in this today,” he told the council. “We could provide the service directly or indirectly through a public/private partnership. But right now, it’s just way too soon to give a detailed plan about how these services will be provided.”

Fitzgerald noted all the cities surrounding Wheat Ridge – except Denver – already passed similar resolutions to ask voters for the exemption. Across Colorado, more than 90 municipalities have done the same, he added.

“This is simply a technicality that returns our rights to us,” Fitzgerald said.

Wheat Ridge will participate in a coordinated election with Jefferson County and the approximate cost to include each question on the ballot is between $10,000 and $20,000, according to a city memo.