The Ark Valley Voice recently reported on a cease and desist order sent to Jed Selby, the owner of the Meadows, demanding that he stop renting his property for use as a wedding venue. (arkvalleyvoice.com/chaffee-county-chooses-to-classify-outdoor-weddings-as-outdoor-theater) As a result he has cancelled all wedding bookings for 2019 which impacts dozens of other local businesses, including caterers, musicians, bed and breakfasts and recreation providers, who would otherwise been employed for these events. Of major concern though, to all Chaffee citizens, is whether the county’s actions in this case are even permitted under the United States Constitution.
Under the 10th Amendment, local government is granted the power to establish and enforce laws protecting the welfare, safety, and health of the public within their territory. However, the 14th Amendment also provides citizens the right to make any legitimate use or disposition of their property. Constitutional law is clear that citizens cannot be deprived of any of the use of their property by government unless the restraint is reasonably necessary for the betterment of the general public. Zoning regulations are only justified on the ground that they protect and promote the general welfare relating to health, morals and safety. It would be difficult to argue that renting a property for the purpose of holding a wedding, even in a residential area, would adversely affect the safety, health or morals of Chaffee County citizens!
The county also has a responsibility, under the Fifth and Fourteenth amendment, to assure that regulations are defined sufficiently that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. In a Supreme Court ruling last year Judge Gorsuch warned of vague laws inviting the exercise of arbitrary power and depriving citizens’ of their rights.
In his correspondence responding to the county’s Cease and Desist order, Mr. Selby pointed out correctly that weddings are mentioned in the Land Use Code and exempted from requiring a special event permit. The argument made by the Planning Director and County Attorney to justify the county’s enforcement action (which threatened fines, revocation of permits and even jail time) was that a wedding venue was considered an “Outdoor Theater” which requires a major impact review to be permitted in residential zoning. For the county’s decision to be constitutional an “ordinary person” would have to reasonably associate a wedding venue as an “Outdoor Theater”. I, for one, would never have made this association from reading the County’s Land Use Code.
Although anyone who is affected by an overbroad regulation has standing to challenge that regulation on behalf of all persons affected, due to the significant time and expense involved, it is rare for citizens to sue a county over unconstitutional actions, and most just “take their pain” and move on despite the injustice. In my opinion, all citizens in Chaffee County should be deeply concerned when our county officials take action against local property owners that denies them their constitutional rights to use their property, whether or not they are directly affected. In this instance the county’s actions were initiated in response to a single neighbor’s complaints about wedding music, which could have been otherwise handled through a civil nuisance suit. The impact of the county invoking their police powers to respond to this one individual has now affected the broader local business community through loss of revenue from catering to the (now-cancelled) wedding parties. This Land Use Code interpretation, made by the Planning Director, without any due process being followed such as public review, comment or vote by the commissioners, will now stop many other property owners from renting their property for weddings unless they go through a Major Impact Review as an “Outdoor Theater”.
When taking office, our County Commissioners swore an oath to defend the US Constitution. I hope other citizens will join with me in calling on our commissioners to recognize the harm being caused to the broader community by these unconstitutional actions initiated by the county planning director, and urge them to reserve the use of the punitive police powers granted to the County to cases that affect the general welfare of the public. As stated by Judge Gorsuch in his recent Supreme Court ruling against unconstitutionally vague law interpretation “In my judgment, the Constitution demands more”.