By 9 a.m. Tuesday, several residents of Lone Tree, Colorado's brand-spanking-newest city, were already lined up at the tidy, tiny civic center, barely an Elway-armed throw from Park Meadows. They were there to do their civic duty, to vote early and avoid the crush of procrastinators who'll still be puzzling out Colorado's initiative-stuffed ballot next Tuesday. But these Lone Tree residents were spared one of the metro area's more heated issues: Their ballots did not include Referendum 4A, the proposed metropolitan football stadium district tax that, if passed, would help build a brand-spanking-new stadium for the Broncos and their owner, Pat Bowlen.

Park Meadows and all of its shops are included in the district that would collect a .01 percent sales tax for the home team. So are the nearby "Eatertainment Zone" and the superstores and the commercial area of Lone Tree, just to the west of Park Meadows. Back in May, when Bronco boosters were amending the 1996 legislation that had created a stadium district roughly overlapping the six-county Regional Transportation District, they took one look at this booming, retail-packed area that hadn't even been open for business two years before, and quicker than you can say ca-ching!, it was added to the law that's made this November 3 vote possible.

"The only reason was to pick up some extra income," says state senator Dick Mutzebaugh, who represents the area and spoke out against the amendment. "It was pure greed."

It was more than that, says Jack O'Boyle, the first--and so far, the only--mayor of Lone Tree, which incorporated in November 1995. Making the commercial area liable for the tax without including the town's residential area in the district amounted to taxation without representation, he worried. If the legislature was going to have Lone Tree businesses charge the tax, Lone Tree residents should be able to vote on it.

O'Boyle called the governor, but Romer signed the bill before he could argue the town's position. So O'Boyle asked that the Lone Tree split be discussed at the legislature's special session in September. But Romer--who last week referred to the stadium issue as a "pimple on someone's rear end" compared to issues such as education--replied that there was no time to deal with matters other than the state surplus during that three-day session.

In ignoring Lone Tree, though, backers of the new stadium may have fumbled badly. Because the town's now on the offensive--and it's running with the ball.

In May, Lone Tree filed suit in Douglas County, asking that the football-stadium district either be expanded to include all of the city or that the district boundaries be revised to the original 1996 lines, which excluded Lone Tree entirely. The suit was inspired not by the penny-per-ten-dollar surcharge, but by the principle. "The reason we originally filed," explains O'Boyle, "is that the commercial area of the city was put in the new district, and yet we had no opportunity to vote on whether or not we wanted to impose the tax."

Since the case was filed, the motions from both the Lone Tree attorney and the stadium-district lawyers have been piling up--often simultaneously, given the short time period before the election. The last round landed in court October 7. The district's most recent filing asked that Lone Tree's suit be dismissed. Lone Tree's filing asked for summary judgment on the case--but added a surprise twist.

While preparing its final legal game plan, Lone Tree had asked an engineering firm to do a survey map of the district. "And to everyone's surprise," says Lone Tree attorney Charles Norton, "there's a substantial part of Douglas County that is within the stadium district unless they opt out." Although the northern tier of the county has always been part of the district, this new discovery would also throw in not just Lone Tree, but Castle Rock, too.

Which means that all of those early birds have been robbed of a vote.
The district's lawyers got the bad news in the October 7 filing. Lone Tree had found it buried in 1994 legislation that made additional parts of the metropolitan area eligible for RTD service, including much of Douglas County. In order to be served by RTD, voters have to opt into the district--and because of this legislation, Castle Rock got to vote that November. "The elected officials wanted to be in the district," Mutzebaugh recalls. "Turns out no one else did."

Although Castle Rock declined RTD service, the language that expanded the eligible RTD area remained on the books. And in 1996, when the legislature passed the bill creating the metropolitan football-stadium district, it included the RTD area as defined in that 1994 law, sections 32-9-106.3, "unless rejected by the eligible electors." That troublesome language also appeared in the final 1998 legislation that specifically added Lone Tree's commercial area. Redundantly, it may turn out.

Because while voters have to opt in for RTD service, according to that wording, they must opt out of inclusion in the stadium district. And residents of the area described in 32-9-106.3 have never been given the chance to reject being part of the district. As Lone Tree's attorney sees it, that means the town is in--no matter how the judge decides Lone Tree's suit.

And if Lone Tree's attorney sees it right, not only are the town's 3,115 registered voters eligible to vote on Referendum 4A, but so are tens of thousands of other Douglas County voters.

On Monday, O'Boyle shared his town's discovery at a joint council meeting of Lone Tree, Parker, Castle Rock and the Douglas County commissioners. On Tuesday, the Douglas County attorney was just beginning to research the issue.

He doesn't have much time. Neither does the Douglas County judge currently considering Lone Tree's original suit, along with the stadium's response.

In less than a week, voters across the metro area will have their say on Bowlen's stadium. And if Lone Tree residents aren't included in their number, "it seems to me that the election itself could be at risk," O'Boyle says.

Bye-bye, brand-spanking-new stadium.
The district plans to argue that the general assembly didn't intend to include those areas in the stadium district. While that may not be how the law appears on its face, letting those residents vote was not the lawmakers' "intent." And so, the district says, the fact that those residents are not allowed to vote on Referendum 4A should not affect the election's validity.

Of course, if lawmakers' "intent" were all that mattered, would any voters have a choice of whether or not they want to build a new stadium? Hell, by now voters would probably have paid for the whole thing. If "intent" were all that mattered, Pat Bowlen would already be sitting in a super-duper new skybox.

If the legislature had truly intended to have this vote go smoothly, it should have put all of Lone Tree into the district last May. Instead, it went for the cold, hard cash of the commercial area--and cut out the residential heart, with its threat of perhaps a few hundred negative votes. If legislators had specifically included all of Lone Tree, the city wouldn't have sued. And if Lone Tree hadn't sued, it wouldn't have discovered that it may have been part of the district all along.

There's a penalty on the play.
If little Lone Tree continues to gain ground, could the results of next Tuesday's vote be ruled invalid? Stranger things have happened.

Just ask Jason Elam if he thought he was going to make that 63-yard field goal last Sunday.

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