Two law review articles, one from the University of Chicago (2002) and a second from the University of California (2003) provide an in-depth analysis of “legislative entrenchment” which provides the common law and constitutional law founding principle that one legislature cannot bind a future legislature.
As summarized in the opening paragraph of the first article:
“In a democracy, governments are not allowed to bind future governments.’ Ordinary legislation cannot be made unrepealable, and future governments are free to revisit the policy choices of their predecessors.2 The prohibition against entrenchment, as it is called in the academic literature, is meant to ensure that each government can be democratically responsive to its own electorate and is not bound by the preferences of the past.! In fact, however, exceptions are widespread.! This Article identifies and examines an increasingly important mechanism for propelling policy into the future, anti- entrenchment rules notwithstanding: governments’ use of private law and private rights to make binding intertemporal precommitments.”
Here are the two law review articles:
https://core.ac.uk/download/pdf/234131607.pdf
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1587&context=faculty_scholarship
What is clear from both are two points which apply to the CDN/Big Sky demand to create a new vesting obligation to guarantee the RATE of building in addition to the total number of units allowed.
First, the common law and constitutional law do not favor legislative entrenchment – for example in our case, the common law and constitution law do not favor an older city council restricting the ability of a citizen initiative to limit the RATE of growth.
See also, Margolis v District Court, 638 P2d 297, 306 (Colo 1981) (upholding the power of Colorado’s citizens to review rezoning decisions of municipal governments through referenda elections).
Second, to the extent local government, like cities, try to get around this fundamental rule, efforts such as vested rights agreements will be strictly construed against the developer.
In this case of the CDN/Big Sky claim to a vested right for the RATE of building, that alleged vested right must be expressly, clearly and unequivocally spelled out in the agreement. Otherwise it does not exist.
See, CharlesRiver Bridge v Warren Bridge,36 US (11 Pet) 420,465 (1837). (government promises of exclusivity must be clear and unambiguous.). (University of Chicago Article, p. 921)
Conclusion: The vested right that CDN/Big Sky claims exists in the vested rights agreement created in 2016 does not exist because it is not in the agreement. If it was there, written in clear language, CDN/Big Sky would not be asking the City to say its there.
Since the vested right as to the RATE of building does not exist, the fundamental rule that says one past city council cannot restrict the ability of the citizen initiative to limit the rate of growth passed last year must prevail.
The citizen initiative, passed by a majority of the Lakewood City voters is the most recent and dominant statement of public policy for the City of Lakewood.
CDN/Big Sky is therefore asking the City Council to make a special exception from the Growth Initiative and that request should be denied because, quite simply, it violates the terms and the spirit of the citizens voice on this issue expressed in the Growth Initiative.
CDN/Big Sky can build their units, but the Growth Initiative controls the RATE of that growth.
And if CDN/Big Sky are agreeing to that RATE of growth anyway, why are we wasting our time even discussing the matter.
John Henderson