Can voters require CSU to sell Hughes Stadium land? Here's what happens if ballot issue passes

Pat Ferrier Jacy Marmaduke
Fort Collins Coloradoan
A preliminary site plan for Colorado State University's former Hughes Stadium land in west Fort Collins. The plan includes single-family homes, duplexes, townhomes, apartments, day-care center, urgent care, transit center and 70 acres of open space.

Democracy could get messy when it comes to the Hughes ballot measure.

A court order this month added another layer of complexity to the saga of the former Hughes Stadium site, as 8th Judicial District Judge Juan Villaseñor directed the city to retain a contested portion of a citizen-initiated ballot measure.

The measure, which council is set to finalize at its Tuesday meeting, is likely to include both a directive for the city to purchase the former Hughes stadium site and zone it as 100% open lands.

The former part of the ballot measure was up in the air for months as the city sought court direction. The city is “evaluating whether to appeal the decision,” city attorney Carrie Daggett told the Coloradoan, and will have to decide by late March, right before the April 6 election. 

History:President Ellis brought many improvements to Colorado Agricultural College

Representatives of PATHS (Planning Action to Transform Hughes Sustainably), the community group that gathered over 8,300 signatures for the ballot measure, said they felt vindicated by Villaseñor’s ruling.

“People had that expectation going in about what they were signing for,” said Sarah Rossiter, a PATHS representative. “So we really appreciated the ruling in that regard, as an affirmation of the democratic process.”

The ruling also raises some obvious questions about what’s next. The ballot measure, if it passes, can make Fort Collins attempt to purchase the 165-acre property, but it can’t force CSU to sell its land. And the university system remains committed to its plans to use the site primarily for affordable and attainable housing, along with a child care center, emergency care clinic and about 70 acres of open space. If the land is zoned as open lands, CSU wouldn’t be permitted to build any of those things.

More:CSU's vision for Hughes Stadium land at odds with upcoming Fort Collins ballot measure

It’s unclear exactly how the rezoning would take place, Daggett said. Rezoning of this nature would normally go through a series of hearings and require a majority vote from council, but the ordinance language states that Fort Collins “shall rezone the Hughes Stadium property as Public Open Lands … immediately upon passage of this ordinance.”

If the ballot measure passes, the city would “resume efforts to acquire” the land, Daggett said, picking up where it left off last fall with a purchase offer of about $7 million for all but 10 acres of the site. CSU System’s Board of Governors rejected the offer after Chancellor Tony Frank said it was too low. Lennar Homes is under contract to purchase the site for $10 million, and the CSU System expects to make an estimated $4 million in revenue-sharing from Lennar home sales.

Passage of the ballot measure, then, would force the city to revisit negotiations that were unsuccessful last year. It would also present the possibility of a legal challenge contesting the election outcome or the city’s rezoning decision. It wouldn’t be the first time the city’s been sued over a ballot measure – the Colorado Oil and Gas Association sued Fort Collins over its citizen-initiated fracking moratorium, which was ultimately struck down by the Colorado Supreme Court after a costly legal battle. 

The money for that lawsuit would come from city general revenues, Daggett said. It's unclear whether the city would be obligated to exhaust all legal avenues in defending the ballot measure if it went to court.

More:Fort Collins has an affordable housing problem. A sweeping city plan seeks to solve it.

It's also hard to know what to expect for the ballot measure because no measure in Fort Collins has ever directed the city to purchase or rezone land in quite the same way. A 1919 citizen initiative directed the city “to acquire by purchase the railway property of The Denver & Interurban Railroad Company in the City of Fort Collins or connected therewith for the purpose of operating the said railroad for the benefit of the inhabitants of the City of Fort Collins,” Daggett said. And voters approved a preliminary planned unit development for Mulberry-Lemay Crossing in the 1999 election.

The result of the ballot measure could ultimately be a quixotic adventure with no weight of law that forces CSU to turn the site into open space. But it could put the city and state in such untenable positions the only way out is compromise.

"When there are conflicts like this between two really significant stakeholders in the community, like the city and university, most of the time the best solution is for it to be resolved through negotiation and political solution as opposed to litigation,"  said Carolynne White, a Denver land use attorney with Brownstein Hyatt Farber Schreck, which serves as a legal adviser to CSU. 

The firm is not representing the university in the Hughes matter yet, White said, because there isn't an active case. 

There is one more option if the measure passes, PATHS leaders say: CSU could do what the voters want.

"I think sometimes there's a perception that CSU, as an organization serving the state population, somehow has more say," Rossiter said. "But the truth of the matter is, CSU works at our service."

The PATHS group collected over 8,300 signatures in favor of its ballot measure, a volume equal to about a quarter of the turnout in the last municipal election. They say they could easily have gotten more, and they point to that support as a sign that the group’s vision for the Hughes site is more than just a long-shot request from a special interest group.

“This is not a small group of activists who are attempting something that no one wants,” Rossiter said. “This is, frankly, a very large group of community members who are pulling together to advance something that the community as a whole wishes.”

More:Fort Collins church plans to donate land for affordable housing development

The land “would be an amazing gift to the community,” Rossiter added. “I think there's an opportunity for CSU to look like the hero we hope they will be in this and just step back and regroup and realize that this is genuinely what this community wants. And it’s also responsible from a community standpoint, from a neighbor standpoint, from a business standpoint.”

PATHS members contend the Hughes land should remain largely undeveloped so it can serve as a buffer between Fort Collins urban areas and the popular natural areas that abut the site. The site’s proximity to other natural areas, which convinced staff of its lower preservation potential, is precisely the reason PATHS wants it left open. A larger, continuous open space would have ecological benefits and provide more uninterrupted habitat for wildlife, Rossiter said.

PATHS also supports the site becoming home to a rehabilitation center for the Northern Colorado Wildlife Center, which has been seeking land so it can expand its work caring for and releasing injured and orphaned wildlife.

More:Nonprofit wants to fill the gap for wildlife rehabilitation in Northern Colorado

Leaving the land as open space would honor CSU's land grant foundations, said Elena Lopez, one of PATHS’ leaders. She added that preserving the land would represent restorative land justice for the indigenous people of Colorado.

“People ask me all the time why I started this fight,” Lopez said. “(Some people) think PATHS is a bunch of rich white people on the west side of town, but three board members who started this are indigenous Chicanas. We have extremely strong ties to North American lands, and we want to see it under proper stewardship for the entire community.”

PATHS characterized the plan they previously supported for the land – all residential foothills zoning, which would mean a smaller number of multi-acre residential lots on the property – as a “pretty darn good compromise,” Lopez said. But City Council ultimately deadlocked on the zoning vote for the property before CSU’s Board of Governors voted to proceed with its own plan for the land.

“There have been compromises on the table, and they've been shot down,” Lopez said. “So at this point, we want 100% open space.”

CSU: 'We would like to see the project go forward'

CSU's Board of Governors approved the site plan, the goals, uses and public purposes for the Hughes site in October, and, as property owner, CSU is under no obligation to sell the land even if the ballot measure passes, CSU spokesman Mike Hooker said.

That said, the university will "entertain discussions with the city in good faith" if the initiative passes, he said. 

The ultimate fate of the project and the property rests with CSU's Board of Governors, who are appointed by the governor and confirmed by elected senators, Hooker said. As such, "a decision to sell the Hughes property rests with the voters of Colorado." 

The project ticks off a list of priorities for CSU employees, including affordable and attainable housing, child care and health care, and a strong commitment to sustainability, said Brett Anderson, special adviser to CSU Chancellor Tony Frank.

After remaining largely silent on the redevelopment of Hughes Stadium for two years, CSU is now trying to get the word out, perhaps as a result of the Fort Collins ballot initiative that will loom large in two months. Anderson and Hooker explained the project to the Downtown Development Authority's board of directors Thursday morning, hoping to win their support. 

CSU presented a letter of support they asked the DDA to sign, but the board directed Executive Director Matt Robenalt, two board members and board chair to draft a letter that will be voted on in at its March meeting. The board is expected to invite PATHS to present their side of the issue after it heard from CSU this week. 

Hughes Stadium is outside the DDA's boundaries. 

City Manager Darin Atteberry, a nonvoting member of the DDA, told the board there were still legal questions the city hopes to answer. 

"The bottom, bottom line is (PATHS) believes the property ought to be restored to its natural state and protected as natural areas and open space," Atteberry said. "Specific language we are trying to get clarity on is: What happens if CSU is not willing to sell or at a price that is out of range of market value."

In addition to the cost of land, the city estimates it would take an estimated $1.5 million to $2 million to return the land to a state of natural vegetation and about another $2 million to build a trail loop, bathrooms, parking lot and other things needed for a city-owned open space. The money for the prospective land purchase wouldn't have to come from any one particular source because Villaseñor struck the portions of the ballot measure that specified how the purchase should be funded.

The city of Fort Collins could not pay more than fair market value nor could CSU sell for less than that and remain true to their stakeholders, White said. 

Just like the city has an obligation to taxpayers not to pay an inflated price, the university as an obligation, a fiduciary duty and constitutional charge to be responsible with its property, White said. "CSU could no less sell for below market value than the city could pay beyond market value."

When a DDA board member asked what the Board of Governors would do if the results of the ballot initiative are not binding, Anderson said CSU is committed to the project. 

"At the moment, that is our plan and we would like to see the project go forward," Anderson said. 

Editor's note: This story was updated on Tuesday, Feb. 16, to include an explanation provided by the CSU System of how they calculated a $14 million value for Lennar's offer. Lennar's offer includes a $10 million purchase price and an estimated $4 million of revenue-sharing.

Tentative ballot language

Here's the court-ordered ballot language for the Hughes measure:

"Shall the City enact an ordinance requiring the City Council of the City of Fort Collins to immediately rezone upon passage of the ordinance a 164.56-acre parcel of real property formerly home to the Hughes Stadium from the Transition District to the Public Open Lands District, and requiring the City to acquire the property at fair market value to use said property for parks, recreation, and open lands, natural areas, and wildlife rescue and restoration, and further prohibiting the City from de-annexing, ceasing acquisition efforts or subsequently rezoning the property without voter approval of a separate initiative referred to the voters by City Council, and granting legal standing to any registered elector in the City to seek injunctive and/or declaratory relief in the courts related to City noncompliance with said ordinance."

Jacy Marmaduke covers government accountability for the Coloradoan. Follow her on Twitter @jacymarmaduke.

Pat Ferrier is a senior reporter covering business, health care and growth issues in Northern Colorado. Contact her at patferrier@coloradoan.com. Please support her work and that of other Coloradoan journalists by purchasing a subscription today.