This content was originally published by the Longmont Observer and is licensed under a Creative Commons license.
On August 3, 2018, the Times-Call had an unusual Section C. Unlike the other sections, laid out in the conventional newspaper style, the text was of almost uniform, minuscule size. There were no headlines, the pictures were grainy and it was 24 pages long -- about the length of the entire rest of the newspaper combined.
Rather than a misprint, Section C, in this case, was serving as single public notice for the update to Longmont's Land Development Code. Printed at conventional size, and with readable text, the code is over 350 pages long.
Public notices are ads funded with taxpayer money, legally mandated to be placed in media outlets by state law. When initially created, public notices were a good government reform to ensure that city governments could not change laws without the input and supervision of residents. They are now also crucial in the execution of many kinds of contracts, like estate sales, lawsuits, the execution of a deceased person's will, where it is the public's interest to be made aware of certain events.
While public notices are usually included in the Classified section of the Times-Call, the length of this particular public notice merited an entire section.
Longmont's Land Development code is quite detailed, and as a result quite lengthy. It provides the sorts of rules which are critical to ensuring the healthy growth and orderly management of the city, but many of which are invisible despite the fact that they drastically improve resident quality of life. The code is required to be comprehensive and cover all concerns including the size of residential lots, the need to protect certain species and the size of publicly displayed signs on businesses.
Public notices are also enshrined in the city's charter, which specifies that the notices must be placed in a "newspaper of general circulation." There's similar language, along with much more specific requirements, in state law. For example, state law includes the maximum rate that the city can be charged by the newspaper for the placing of public notices. State law also requires that the newspaper publisher have the rights to use second class mail from the U.S. Postal Service.
The City of Longmont has interpreted these rules as requiring that notices be placed in a literal, physical, printed newspaper. The only venue meeting these requirements in Longmont is the Times-Call, which no longer has offices in the city limits, instead sharing an office (and many reporters and staff) with the Boulder Daily-Camera. In fact, the city's interpretation of these rules is so rigid that the city does not consider the Longmont Observer a "newspaper of general circulation."
It's this last point which is especially confusing to Professor Richard Collins of the University of Colorado - Boulder. Collins specializes in constitutional law, with a specific interest in the details of local governance. He also teaches the law school's course on local government. He explained that Longmont is a home rule municipality, which means that the city can override state law on matters where local concern outweighs state authority. In fact, he says, "I assume the city could authorize [changing the rules on public notices] at any time," though he cautioned that an attempt to change the rules would inevitably wind up in court. Colorado law does not explicitly spell out which matters home rule municipalities can overrule state law on, but it is clear that there are issues on which state law always supersedes local law (but again without any specificity).
For example in 2016 when the City of Longmont banned fracking within city limits, the ban was overturned because the State Supreme Court ruled that issues of oil and gas production were one where state concern was more important than local concern. In the jargon of the law, it was not "a matter of home rule."
This is the sort of long-ago-drafted law which has never been updated to keep up with the technology of the time. Perhaps the largest fig leaf toward reform in the state's laws on public notice is PublicNoticeColorado.com.
A 2014 effort to update public notice laws in Colorado was stymied by aggressive lobbying by far away corporate interests like Alden Global Capital, the New York City-based owner of the Times-Call, the Daily Camera and the Denver Post. Alden has been open in its view that newspapers exist to enrich so-called vulture capital funds like them rather than serve the communities in which they are based.
This resulted in PublicNoticeColorado.com, where as a concession to kill more sweeping reforms to how cities give public notice to their residents, for-profit newspaper publishers offered to post all public notices in the state to a single website, accessible and searchable by the public for free. This helped support the for-profit publishers assertion that they wanted to keep forcing cities to pay them to print public notices because of the publishers' belief that the notices served real utility. Despite the fact that scholarly legal literature has referred to public notices as a subsidy to the newspaper industry.
And while state law requires newspapers to "place the notice on a statewide website established and maintained by an organization representing a majority of Colorado newspapers," rather than being an unbiased foundation or professional organization of journalists, it turns out that the website is operated by the newspaper industry's lobbying front.
Brien Schumacher in the City of Longmont Planning and Development Services served as Project Manager for the update of the Land Development Code. He described a substantial effort to engage the public at large and also commercial users of the code such as land developers and realtors.
The process of updating the Land Development Code began in earnest in 2016, following shortly after an update to the city's comprehensive plan, Envision Longmont, with the focus of updating the code to agree with the new comprehensive plan but also to make it more user-friendly.
A document provided by Schumacher which was presented to the Longmont City Council on July 24, 2018 lists 14 specific community groups, and 5 sets of stakeholders. When asked to ballpark the number of meetings, Schumacher rattled off just a few he had off the top of his head, "I know we had 13 meetings with Plan and Zoning Commission, we had 10 meetings with City Council, and we probably had 4 or 5 meetings with Downtown Development Authority Board. And then on top of that, there were preliminary meetings we had in the fall of 2016, probably at least a dozen with stakeholders. After that, we had a number of meetings with other community organizations."
All of which is how you wind up with a city whose publicly owned utility provides the fastest residential internet in the country paying $14,447 to print its land development code in a newspaper. City rules and state law require that, after the first reading of the law at a city council meeting (which is also open to the public) the entire text of any law to be passed must be printed in its entirety in a newspaper of general circulation. In the land development code's case, this resulted in the city having to pay to add an entire section to the newspaper. Two weeks later, at the second reading, the city again has to notify residents that the law is going to be passed though as long as there are no textual changes it need only print the name of the ordinance. This cost a relatively modest $12.18.
The public notice containing the full text of the land development code is absent from PublicNoticeColorado.com, in violation of state law.
Asked about the value of the legally mandated public notice in the Times-Call, Schumacher said, "I mean, it checked one of the boxes of what we are required to do by the charter...I guess, for those that receive the printed version of the newspaper, if they hadn't been involved that might've been an opportunity for them to look through and go 'Oh, okay.' And if they wanted to they could've come to City Council if they had any concerns or questions. Nobody did."
By the time the public notice was being filed, all the feedback that was going to come had already been incorporated. The law was set in stone. Asked about the relative timing of the filing of the public notice, Schumacher said of the version printed in the newspaper, "That's the final draft." When asked to clarify, Schumacher made it clear that no textual changes from the printed version would've taken place. City council members had stated their intent to vote for it. It was going to pass. Not much of a notice to the public.
Special thanks to Johannes Loetz of the Longmont Public Library for providing a copy of the August 3, 2018 Times-Call.