Lawsuit Accuses Erie of Passing “Unconstitutional” Town Charter

updated 1/5/2023 To include Brandon Bell’s term was set to end in April 2024

The lawsuit was filed at a time when Erie is trying to navigate several competing challenges related to its growth such as increasing affordable housing requirements and reducing local oil and gas developments. 

The Town of Erie’s new home rule charter may violate Colorado’s constitution because it extended the current Board of Trustees term by seven months until the next election in November 2024, a new lawsuit alleges. 

featured from left to right: Jeff Haverkate (a former candidate for the BOT) and wife, Miguel and Kelly Zuniga (center), Trustee Andrew Sawusch and wife

The lawsuit was filed by Miguel Zuniga, the husband of ousted Erie Planning Commission Chair Kelly Zuniga. In June 2023, the Erie Board of Trustees voted 4-2 to remove Kelly Zuniga from the Planning Commission. Miguel Zuniga filed in Boulder County District Court on Dec. 26. Zuniga was also the campaign manager for his wife’s unsuccessful bid to become Mayor of Erie in 2022. Jonathan Slie, a lawyer from the law firm Thomas N. Scheffel & Associates in Denver, is representing him. 

Erie Mayor Justin Brooks, Mayor Pro Tem Sara Loflin, and town councilors Ari Harrison, Brandon Bell, and Dan Hoback are all named as defendants in the lawsuit. All of their terms are set to expire in November when Erie holds its first election under its new charter. Before the Home Rule Charter was passed, they would have been up for reelection in April 2024.

Specifically, the lawsuit takes aim at the transition provisions contained in Article 16 of Erie’s town charter. Article 16 essentially states that Erie’s previous governing body assumed the powers given to them under the new charter and clarified that all elected officials will need to be re-elected in November. Board of Trustee terms that would have expired in April 2026 were also shortened to coincide with the November election, while terms that would have expired in April 2024 were extended. 

The terms for Brooks, Loflin, Harrison, Bell, and Hoback were all slated to expire in April 2024, according to the lawsuit. Zuniga contended that extending the terms of these officials both violated his “constitutionally protected interest” as a Town of Erie voter and Article 7, Section 11 of the Colorado constitution, which states in part that “No law shall extend the term of any elected public officer after his election or appointment nor shall the salary of any elected public officer be increased or decreased during the term of office for which he was elected.”

“The foregoing Section 11 expressly creates a constitutionally protected interest in ensuring that elected officials serve fixed terms of office that are not extended in a manner that circumvents the electoral process,” the lawsuit reads. 

The lawsuit asks the court to grant two claims for relief. The first claim asks the court to require Erie to terminate the terms of Brooks, Loflin, Harrison, Bell, and Hoback on their original date in April 2024. The second claim asks the court to require Erie to uphold its charter’s vacancy process, which could result in Emily Baer and Andrew Sawusch being the only town council members until the November election. 

Yellow Scene Magazine reached out to the Town of Erie for comment about the lawsuit but did not receive a reply by press time. It is unclear how these claims would impact succession for the Mayor’s office. 

The lawsuit was filed at a time when Erie is undertaking a massive redevelopment effort. Not only is the town government moving forward with plans to become a home rule municipality, but the town itself is getting a facelift from several new development projects like Erie Town Center, a 390-acre mixed-use development that includes luxury home builders like Toll Brothers, and real estate developers such as Forum Real Estate Partners. 

Erie has also faced challenges related to its new affordable housing requirements and oil and gas regulations. In 2021, Erie adopted an ordinance requiring the town to set aside at least 12% of its housing stock as permanently affordable housing. Other Boulder County jurisdictions like Longmont have also passed similar laws. 

The town has also increased its setback requirements for oil and gas developments to require wells to be at least 2,000 feet away from homes and businesses and also increased its air quality requirements. 

These issues were a main part of the 2022 election cycle in Erie. A dark money group headed by a Republican lobbying firm set up shop in Erie to support candidates like Kelly Zuniga, Jeff Haverkate, and Ryan Kenward. All of the candidates who were interviewed told YS in their 2022 Election Guide interviews that Erie does not need more oil and gas regulations.