How The Town Planned the Attack on the Chamber

As you know, you can always contact the Estesparkian at estesparkain@yahoo.com.

Over the past several weeks there has been a consistent flurry of e-mails right from or about the Town. It has taken a good deal of time to sort through and try to verify the information and it is being looked at very carefully, put in order in an attempt to tell the story that is now coming out. The Town has been accused, and the court has found them guilty, of overstepping their bounds in the area of Sales and Marketing. There have been comments that perhaps the Town isn't really guilty of anything, it has just been a pissing contest with a malcontent few people at the Chamber. With the information now being studied, thanks to the loyal followers that seek the truth, we now know the plan by the Town to destroy the Chamber (perhaps illegally) goes back several years. The following is a copy of one of the many documents that have been sent in. It will be interesting to see what the courts will think of this and the documents that will follow. The words are direct quotes, the formatting does not always appear the same as it was presented. That's a technical issue. However, this seems like important stuff and we'll all hear much more about this in the comming months. Therefore, just a taste: [Note the date]

Town of Estes Park
Fulfillment and Fulfillment Committee
Formation/Outline
Preliminary: for meeting on 04-29-03
Revised on 04-30-03

Purpose
If the Chamber rejects the last contract outline of 04-21-03, the Town needs to have an alternate plan for providing the fulfillment portion of our marketing program. This document outlines the method and procedure for creating or transferring those functions now managed and controlled by the Chamber Resort Association.
Direction of Fulfillment Functions
It would be logical that fulfillment functions will be under the direction of the Economic Development Department, with additional employees. Oversight would be provided through a new Fulfillment Committee that would be similar to the Advertising Committee.
Outline for Action
I.
2.
Vacation Planner
a. Presently, the Chamber has a contract with Brochures Plus for production of the next two yearly issues of the Vacation Planner.
b. The Town could assume the contract.
c. The Town pays approximately $36,500 for handling and 1 st class direct mailing.
d. The Town could probably handle this portion without new employees, as the publisher does the work. Committee time not incl.
e. Brochures Plus is already selling the 2004 book.
f. Presently the Vacation Planner is revenue neutral to slightly better.
Website
a. The website, as used here, can be a large site under a domain address or be a distinctive separate part of the main site.
b. Presently the Chamber owns a newly developed website that is part of Town Fulfillment. The $25-30,000 cost of site was paid from EPIC funds.
c. Access and cost of the estesparkresort.com website depends on Chamber membership, (about 380 businesses), and is the sole access for some.
d. The Town advertises the Chamber site through direct links.
e. The Town can continue with direct links until we have our own site developed and managed. Purchasing Chamber site still an option.
f. The Town needs its own fulfillment website, (part of our existing site),
and should develop one as soon as possible. Once that's done, we can cut off our link to the Chamber site.
g. We will need personnel to collect fees and monitor site.
itor 00 .

3. 800 Phone answering
a. Presently the Chamber answers the 800 calls and is reimbursed by the Town on a $1 per call basis. The number of calls is decreasing by 200/olmonth.
b. The Chamber owns the phone equipment at the Visitor Center but may not be allowed to remove it if they vacate the building.
c. The Town owns the 800 number.
d. The Town can 1et this arrangement ride until such time as the Chamber, or we, decides to change.
e. The Town will continue to control this function either with Town employees in the Visitor Center or through the Chamber with performance criteria.
f. A fee would be charged as part of package.

Visitor Center
a. The Chamber currently has no lease for the building, as the last one expired in 2001, despite negotiations.
b. Presently the Chamber mans the Visitor Center with 4 full-time employees working behind the counter and as 800 phone operators.
c. The ambassadors provide seasonal assistance.
d. Brochure racks are rented to area businesses and filled by Chamber employees.
e. Chamber produces maps for restaurants, shops, etc.
f. Town could provide all functions with similar staffing.
g. The Town could occupy the V.C. when we take over the phones.

5. Equalization
a. We recognize the need for out-of-town businesses to pay for services provided to them by the Town.
b. We believe a payment equal to 2% of gross receipts would offset the inequality between in and out-of-town businesses.
c. Because we cannot audit gross receipts, we need another formula.
d. A payment of 0.4% of the appraised value of the property may be a good alternative because the appraised value is a public record and is roughly based on gross revenue.
e. This payment would be made to the Town advertising arm and would allow those businesses to participate in fulfillment services at the same level as those in town.

Costs/Revenue
The Chamber has been able to support itself with member dues, (Approximately $145,OOOyr.), and fees for services. Most, if not all of the members pay their dues in order to receive Chamber fulfillment services. We can assume that the services that the Town would now be offering would be worth at least as much as what exists, and the number and pay scale of current employees would not change appreciably, therefore the bottom line cost to the Town would not change appreciably.

Detailed Estimate of Costs/Revenue
I. One manager at $40-50.000 .
2. Three to four full-time clerical workers at $20-30.000 ea. 3. Part-time seasonal clerks at $25.000 total 4. Misc. costs at $30.000 year

Other Costs, one time
I. Build or purchase new website $10-30,000
2. Purchase estespark.com Domain Name $30,000 (option)
3. Enhance or replace phone equipment Lease
4. Replace and upgrade office equipment $40,000 5. Miscellaneous costs $20,000 6. Total ($70-120,000)

Revenue

1. Vacation Planner; $0-5,000
2. Website: $60.000'to $120.000 3. Leads: ?
4. Brochure racks: $15,000

That Habecker is quite a guy. Looking out for our best interest?

As you know, you can always contact the Estesparkian at estesparkain@yahoo.com.

More from our loyal readers. If you have more information you'd like to share, please send it to the above address. Your personal information will be kept confidential. Again, this posting is a direct quote, the formatting doesn't come out the same - technical stuff.


Memo
04"-30-03
From: David Habecker
To: Jeff, Rich, Tom, Randy, Peter

Re: Meeting of 04-29-03
Post-it' Fax Note 7671

Yesterdays’ meeting was very productive and informative. Attached is the revised outline.
The scenario sounds like a good way to go except for two things. We have to survive the Home Rule process, and the new Marketing District would be left in the same position the Town is in now! There is no guarantee the Home Rule Charter will give us what we want and need and the District would still need to control or replace the Chamber as the fulfillment provider.
One issue we discussed concerned a new marketing district. The scenario was that the Town would become home rule; the Town would appoint most, (or all?), of the District board; the District would impose a 2%+- tax on lodging to raise money for the promotion of the District business; the District would replace the Town as the marketing entity for the area; therefore, the Town would not have to deal with the Chamber.It seems logical that the Town should resolve the Chamber issue now, when we are in a position of strength, and not leave the problem to a new board. This should help the Home Rule process.

MOCKERY

Estes to appeal to Colorado Supreme Court
Leaders seek clarification on statutory rights
By John Cordsen
Estes Park officials will ask the Colorado Supreme Court to rule on a two-year-old lawsuit brought against the Town challenging its authority to conduct tourism-related marketing and advertising.
The appeal is the third chapter in legal action that began in May 2005 between the Town of Estes Park and three plaintiffs. The plaintiffs, Estes Park Chamber of Commerce, Norm and Dee Pritchard (doing business as Black Dog Inn), and Baldpate Inn, Ltd., took the Town of Estes Park to court in May of 2005 contesting the Town’s authority to conduct its marketing program.
Larimer County District Court Judge Dave Williams ruled in October 2005 that the Town had statutory authority to establish a Convention and Visitor’s Bureau (CVB). The Colorado Court of Appeals wrote the second chapter July 12 when it remanded the case back to district court.
Estes Park officials fear the interpretation by the Colorado Court of Appeals could have a far-reaching impact to all statutory towns across Colorado. They worry that it could preclude statutory towns from using any public funds for marketing – even through a third party such as a chamber of commerce. In its July 12 ruling, the court of appeals concluded state law does not authorize a statutory town to conduct marketing activities beyond the narrow scope of advertising, and that the trial court erred in determining otherwise.
“This is a course of action we have to take, not only for Estes Park but for all statutory towns across the state,” said Mayor John Baudek.
Town officials are cautious of the court’s interpretation of marketing and advertising and how it could impact the ability to pay an outside entity to conduct tourism-related marketing.
“To contract for marketing is the same as marketing,” said Trustee Richard Homeier.
The decision to appeal came after an executive session Tuesday night with Town attorney Greg White who advised the board to appeal the July 12 ruling.
“Based on the ruling the Town does not have the right to expend public funds on marketing – even to a third party,” said White.
According to White, the Colorado Supreme Court does not have to accept the appeal.
Town administrator Randy Repola said the Town would continue operating all aspects of the CVB until a final decision is reached, either by the courts or between the plaintiffs and the Town.

We, at the Estes Parkian, are speechless.

Your trustees are now officially making a mockery of our town government. The layers of the onion continue to be pealed back to expose the rotten core. This is and always has been a Home Rule issue as we have educated this community for years now. Now, we implore you; continue to pay attention the town is contributing to your civics education.

As citizens you can start preparing yourselves to legislate our community government.

Your elected trustees swear an oath upon taking office . They swear an oath to follow the laws of the State of Colorado. The oath does not say follow the laws you like and are politically convenient for you and ignore or change the ones that do not service the oligarchy agenda.

Here is a rule they understand covet and use to cloak their corrupt activities; C.R.S. 24-6-402(4)(b), Request To Enter Executive Session.

Your elected officials do not have to express their individual positions publicly, they disappear behind the curtain and plot in private. They love this rule over and over again.

Did Eric Blackhurst recuse himself from these hidden discussion?

No he did not.

Do we have to spell out his personal prejudices that would require him to do so?

Evidently we do because he actively participated.

For everyone’s personal file Susan Blackhurst, is trustee Eric Blackhurst’s wife. Susan is a town employee conducting advertising and marketing activities and her job is directly affected by this court ruling.



Did Dorla Eisenlauer recuse herself from these hidden discussions?

No she did not!

Do we have to spell out her personal prejudices that would require her to do so?

Evidently we do because she actively participated.

For everyone’s personal file Dorla Eisenlauer was the Judist goat that with town staff assistance converted the Chamber of Commerce businesses mans docent program into her own personal non profit. In fact her husband has been a mayoral appointee to several commissions and a very public cheerleader to “join the team” an unlawful and illegal team we have come to find out.

So now your town trustees are spending your money to save all the statutory communities in Colorado. The appeals court of this state and the supreme court of this state are not in the habit of directing the states legislators. “Hey by the way fellas and gals you forgot something for statutory towns”.

The appeals court made clear what the law is and direct the district court to investigate the town activities based on the law as it exists. Exactly the laws your trustees swore to uphold.

The Supreme Court will not hear this case. Your trustees are buying time with our money to weasel a local political cure. Randy Rapola said so, in the very last line of the article.

Just for everyone’s personal files every statutory resort community that would be effected by this law long ago has converted to a Home Rule form of government (except Grand Lake and Granby and we all know how well they are all getting along in Granby) created Marketing Districts controlled by the business community. Seventy one Marketing districts were formed in the last seven years while your trustees monkey around getting a line changes in state law to serve their agenda which became instantly moot with the appeals court ruling.

Why does everyone understand the law except Greg White and your trustees?

Get out of private businesses mayor you suck at it, and your politics are corrupt.

How Can You Heal Until You Are Cured ?

Executive Officer Karna Schofer resigned her position at the Estes Park Medical Center.

Why?

How many staff went with her?

The health of our community is of the highest priority and we demand an accounting!

Estes Park citizens are not good at demanding accountability, it subscribes to the blind eye oversight philosophy. While the local journalists feed peanuts to the chipmunks for photo ops, and wink at elected official’s high jinks - the Estes Parkian never sleeps.

We think we know why or at least we believe we know, since your local rag is as worthless even as fish wrap, this is the information that was emailed to the Estes Parkian.

estesparkian@yahoo.com

Asbestos abatement?

This information was emailed to us a couple of weeks ago and it became impossible for us to confirm, with this defection for no reason effective immediately, some of the pieces seem to fit.

It was reported to the Estes Parkian that during the renovation of parts of the hospital a significant amount of asbestos was discovered in the old section of the hospital (in the form of floor tiles). The contractor supposedly received a letter from the powers that be at the hospital that stated: a necessary inspection was performed and the hospital was clear of asbestos…..but this proved to be false.

If these reports are true, asbestoses abatement being expensive could eat up the entire remaining construction budget, including the additional money raised for the emergency room.

If this information is true and we want to impress on you that we have not seen official documentation, only an email from a concerned individual.

When does the hospital board fess up and ask for more money? Karna evidently didn’t want that task?

The Estes Parkian wants to know the truth, this important to us all. Cut the politics and inform us.

A Reckoning is Due!

What a delightful place is Hermit Park. The park is made up of 1,362 acres and is just east of Estes Park on the west side of Highway 36. Hermit Park, once owned by Hewlett-Packard (then Agilent), is now owned by Larimer County Parks and Open Lands Department. There is a conservation easement on it which has been assigned to the Estes Valley Land Trust.

The land has been through a few hands, the Crocker’s and finally HP before the following groups put up the money for its purchase:
Larimer County- $4,000.00
Estes Valley Land Trust – $700,000
Great Outdoors Colorado - $700,000
Town of Estes Park - $400,000
City of Loveland - $420,000
Various businesses and foundations and individuals - $280,000

If you want to see the park you’ll have to attend the Land Trust breakfast. They’ve received special permission to tour the grounds which are now locked off to visitors.

Now, we have lots of open space nearby that didn’t cost us anything. Roosevelt National Forest, Rocky Mountain National Park and the over 5,000 acres of land trust property within the valley. However, like a child with a box of candy, one piece isn’t enough. We need more and more, and yet more. There seems to never be enough. Forget our future and room for any type of positive expansion or economic development. We can’t have that here. No, everything must be preserved and made into no tax property so we not only don’t collect taxes; we have to pay for future maintenance. This is shear lunacy. There isn’t even enough land left for the lumber yard to move and have a King Supers or other competitive store move here. That is something that could benefit all of us.

What permission did the Town seek prior to giving $400,000 to this project which is out of Town limits? Did it come up for a vote? Do you remember voting on this? The Estesparkian has long said that this Town spends far too much money on out of town enterprises. Such things as out of town trails and now open space which currently isn’t open to the public. How many towns have an extra $400,000? Did they even have the right to spend money this way? Remember, they make the rules and don’t follow state law. The only part of state statute that they support is no bid contracts. They love this one. Remember the $1 million visitor center? Cost was over $2 million. Remember the new Wiest river front project? That was to be about $1.2 million and be done in May. Bets are that it will cost over $2.5 million and won’t be done until at least August. Over and over again we’ve seen our assets squandered.

We now see that the Town clearly broke the law with their marketing and “sales” department and we should all look forward to the outcome of that. If we keep digging deeper, we may see many illegalities that they have performed. One glaring problem could be the mingling of funds between their “planning arm” EPURA, and the Town payroll. A good forensic accounting is certainly due and guilty persons should serve the appropriate punishment. They won’t be missed; in fact we would all be better off. A reckoning is due. It will be fun to see it all crumble out from under the perpetrators. How anxious do you think Doylen and Barker will be to run for Mayor now? They were both instrumental in creating the problem. The guess is that they will run, but they can’t hide. Responsibility goes to them and to other current Trustees and former Trustees. This could also extend to personal responsibility and liability. Other parties, such as Habecker, Newsom and Baudek might catch personal responsibility for their poor judgment. Why would anyone vote for the perpetrators of this fiasco? Finally, the law and the citizens will come down on them now, as they should have done years ago.

JUDGEMENT REVERSED AND CASE REMANDED WITH DIRECTIONS! Lois Smith, Chamber Pres. failed in getting suit dropped and a Hatmaker and B&B Owner prevailed.

COLORADO COURT OF APPEALS
Court of Appeals No.: 06CA0953
Larimer County District Court No. 04CV2069
Honorable Dave Williams, Judge
Estes Park Chamber of Commerce, a Colorado nonprofit corporation; Norm and Dee Pritchard, individually, d/b/a Black Dog Inn, a Colorado sole proprietorship; and Baldpate Inn, Ltd.,
PlaintiffsAppellants,
v.
Town of Estes Park, Colorado, a Colorado municipal corporation,
DefendantAppellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by: CHIEF JUDGE DAVIDSON
Vogt and Ney*, JJ., concur
Announced: July 12, 2007
Hayes, Phillips, Hoffman & Carberry, P.C., John E. Hayes, Hilary Mogue
Graham, Denver, Colorado, for PlaintiffsAppellants
Windholz & Associates, James A. Windholz, Boulder, Colorado; Gregory A. White, Loveland, Colorado, for DefendantAppellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24511105,
C.R.S. 2006.

Plaintiffs, Estes Park Chamber of Commerce, Norm and Dee
Pritchard (doing business as Black Dog Inn), and Baldpate Inn, Ltd., brought a declaratory judgment action against defendant, Town of Estes Park, challenging, inter alia, the Town’s authority to conduct tourism related marketing and advertising. On this claim, the trial court granted summary judgment in favor of the Town, and, on appeal, plaintiffs contend that this judgment was error. We reverse and remand for further proceedings.

Estes Park is a statutory town and has long been a tourist
destination. According to the Town, it has historically been
involved in tourism related advertising, marketing, sales, special events promotion and planning, and providing special events and conference service activities. The Town established three departments to carry out these functions: the Advertising Department, the Special Events Department, and the Conference Services Department.

Since the early 1950s, the Town also contracted with the Estes
Park Chamber of Commerce, a private nonprofit corporation, to staff and operate the Town Visitor Center and, according to the Chamber, to provide marketing, advertising, and promotional activities associated with the commercial enterprise. The Town paid the Chamber $4,000 per month to answer the Town’s 1800 informational phone number, and also permitted the Chamber to lease the Visitor Center for an annual rent of $1.

In 2003, the Town combined and expanded the services
provided by its three tourist focused departments by creating a single new department, the Business Development Department. The Town later changed the name of the Business Development Department to the Estes Park Convention and Visitors Bureau (CVB) and also created a Marketing Advisory Board to implement the Town’s new marketing strategy. In the same time period, the Town decided not to renew its contracts with the Chamber (including the Chamber’s lease of the Visitor Center), and instead decided that the CVB would take over operations of the Visitor Center, which it did in late 2004.

Shortly before the Chamber was forced to vacate the Visitor
Center, the Chamber and several business owners brought this action against the Town, seeking declaratory judgments
determining that: (1) the most recent lease between the Chamber and the Town did not extinguish a previous, longer lease; (2) the Town’s new and expanded tourism promotion
activities exceeded its statutory grant of authority to appropriate moneys for the purpose of “advertising” the Town; and (3) the Town’s collection of Tax Equivalency Fees from “out of town” members was the functional equivalent of a tax and therefore invalid. They also sought a permanent injunction to prevent the Town from forcing the Chamber to vacate the Visitor Center.
The trial court resolved issues involving the Chamber’s lease
and tenancy in favor of the Town. The parties then filed cross motions for summary judgment on the remaining issues. The trial court granted summary judgment in favor of the Town on the issue of the formation and operation of the CVB, but ruled in plaintiffs’ favor on the Tax Equivalency Fees issue. Regarding the CVB, the court determined that the Town’s funding of “advertising and marketing” was authorized by § 3115901(1)(b), C.R.S. 2006, and determined that the Town did so in a properly administrative manner. Only plaintiffs appeal.

I. Standard of Review
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo. 1999). We review a grant of summary judgment de novo. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 29899
(Colo. 2003). II. In Addition to “Advertising,” Does § 3115901(
1)(b) Authorize the Town to Conduct “Marketing” Activities?
Plaintiffs contend that the trial court erred in determining that
the Town’s broad based marketing and referral enterprises,
described by the court as the Town’s “advertising and marketing,” were authorized by § 3115901 (1)(b), the provision that allows statutory towns to appropriate moneys for “advertising.” We agree with plaintiffs that, as a statutory town, the Town was not authorized to appropriate monies for any activities that were not “advertising” or “advertising related.”

Statutory municipalities possess only those powers that are
expressly conferred by statute or exist by necessary implication.
City of Sheridan v. City of Englewood, 199 Colo. 348, 350, 609 P.2d 108, 109 (1980). In this way, statutory municipalities are unlike home rule municipalities, which have plenary legislative authority over local and municipal matters as guaranteed by article XX of the Colorado Constitution. See City of Aurora v. Bogue, 176 Colo. 198, 200, 489 P.2d 1295, 1296 (1971). Thus, statutes granting such powers must be strictly construed, and any doubt as to a statutory municipality’s power must be resolved against it. City of Aurora v. Bogue, supra, 176 Colo. at 20001, 489 P.2d at 1296. Section 3115901(1)(b) provides, in relevant part: “The governing body of each municipality has the power . . . [t]o appropriate moneys for the purpose of advertising the business, social, and educational advantages, the natural resources, and the scenic attractions of such municipality” (emphasis added). The word, “advertising,” as used in § 3115901( 1)(b), is not specifically defined in the statute. However, its common definition is the non personal communication of information to the public to promote a product, service, or idea using a form of media. See William F. Arens & Courtland Bovee, Contemporary Advertising 6 (5th ed. 1994) (“advertising” is the “non personal communication of information usually paid for and usually persuasive in nature, about products, services, or ideas by identified sponsors through various media”); see also Merriam Webster’s Collegiate Dictionary 19 (11th ed. 2004) (advertising is “the action of calling something to the attention of the public especially by paid announcements”); Black’s Law Dictionary 59 (8th ed. 2004) (advertising is “1. The action of drawing the public’s attention to something to promote its sale. 2. The business of producing and circulating advertisements.”).
“Marketing,” however, is a broader term. It is generally
described as the process of planning, promotion, and distribution of products or services to meet customers’ needs. See Boone & Kurtz, Contemporary Marketing Wired 6 (Dryden Press 1998) (“Marketing is the process of planning and executing the conception, pricing, promotion, and distribution of ideas, goods, services, organizations, and events to create and maintain relationships that will satisfy individual and organizational objectives.”); see also Merriam Webster’s, supra, at 760 (marketing is “the process or technique of promoting, selling, and distributing a product or service”); Black’s, supra, at 990 (marketing is “1. The act or process of promoting and selling, leasing, or licensing products or services. 2. The part of a business concerned with meeting customers’ needs.”).
From these definitions, it follows that all advertising the
Nonpersonal communication of information to the public to promote a product, service, or idea using a form of media falls
within the process of promotion and, therefore, is a subset of marketing. But, conversely, not all marketing is advertising. Promoting a product or service is not limited to simply the nonpersonal communication of information to the public.
The Town points out, however, that even if they are discrete
functions, advertising and marketing are not wholly unrelated.
Accordingly, the Town suggests that the General Assembly simply used imprecise terminology, intending to encompass marketing functions when it empowered statutory towns to use taxpayer monies to fund advertising.
However, there are more than twenty Colorado statutes that
contain both the word “advertising” and the word “marketing” several of them predating § 3115901( 1)(b) and none of the statutes use the terms used interchangeably. See § 2449.7104, C.R.S. 2006 (granting board of Colorado Tourism Office power to gather information on tourism marketing effort and to expend moneys on advertising); § 3011107.5( 1), C.R.S. 2006 (granting counties power to levy lodging tax to fund advertising and marketing of local tourism); §§ 3020602 (2.9) & 3020603, C.R.S. 2006 (granting counties power to market the development of business within a local improvement district); § 3529107, C.R.S. 2006 (granting Department of Agriculture power to produce and sell advertising with seal of quality to be used for marketing Colorado agricultural products); see also §§ 61304(1)(g), 61712(1)(a), 107102(1)(j), 1016907(1), 1018101(4), 1019114,1233117(1)(s),1235103(9), 1236125(1)(b), 1241115(10)(j), 2431402(1), 2456102(1)(a) & (d), 3528108(1)(h), 3528113(1), 3529103( 3), 3533301(1), 3921201(2), 3928201(1)(e), 3928202(9)(a)(I)(B),
C.R.S. 2006 (all using “advertising” and “marketing” distinctly).
Thus, contrary to the Town’s contention, prior to as well as
after the enactment of § 3115901(1)(b), the General Assembly was aware of the function of marketing as opposed to advertising, and made distinctions in the use of the terms. See Wolford v. Pinnacol Assurance, 107 P.3d 947, 952 (Colo. 2005) (when General Assembly legislates, it is presumed to be aware of its other enactments).
Accordingly, because we must strictly construe grants of
power to a statutory municipality and resolve any doubts against the municipality, see City of Sheridan v. City of Englewood, supra, 199 Colo. at 350, 609 P.2d at 109, and because of the statute’s plain language, we conclude that the General Assembly did not authorize statutory towns to expend taxpayer monies for “marketing” activities. See State Dep’t of Labor & Employment v. Esser, 30 P.3d 189, 196 (Colo. 2001) (court will not read words into statute beyond those chosen by General Assembly).
III. Is Marketing an Implied or Incidental Power?
The Town argues that, even if its marketing activities do not
fall within the express grant of advertising power in § 3115901( 1)(b), such activities are authorized as “implied or incidental” powers under § 3115101( 2), C.R.S. 2006. Again, we disagree.

Section 3115101(2) states, in relevant part: “All such
municipalities shall have the powers, authority, and privileges
granted by this title and by any other law of this state together with such implied and incidental powers, authority, and privileges as may be reasonably necessary, proper, convenient, or useful to the exercise thereof” (emphasis added).
According to dictionary definition, a thing is “incidental” if it is
“subordinate to something of greater importance” or has “a minor role.” Black’s, supra, 777.

Here, the authority to market cannot be “incidental” to the
authority to advertise because, as discussed, marketing is the
broader category within which advertising is contained.
Accordingly, marketing is not subordinate to, nor does it have a minor role in, advertising. Cf. Adams County Golf, Inc. v. Colo. Dep’t of Revenue, 199 Colo. 423, 42526,
610 P.2d 97, 99 (1980) (operating a golf clubhouse is an incidental implied power of a county’s express power to operate a golf course).

Similarly, marketing is a not an “implied” power of advertising.
As discussed, “advertising” is the nonpersonal communication of information to the public to promote a product, service, or idea using a form of media, see Arens, supra, whereas “marketing” is the process of planning and executing the conception, pricing, promotion, and distribution of ideas, goods, services, organizations, and events to meet customers’ needs. See Boone, supra. One can communicate information to promote a product (that is, advertise the product) without conceiving, pricing, and distributing the product (that is, marketing the product). Accordingly, we conclude, the power to market is not implied in the power to advertise. Cf. Farnik v. Bd. of County Comm’rs, 139 Colo. 481, 491, 341 P.2d
467, 473 (1959) (statute giving counties authority to “purchase and hold real and personal estate for the use of the county” does not give counties implied power to deal in real estate generally); Robbins v. Hoover, 50 Colo. 610, 616, 115 P. 526, 528 (1911) (board of county commissioners does not have implied power to maintain a public hospital).

IV. Remand is Required
We have concluded as a matter of law in parts II and III of this
opinion that neither § 3115901(1)(b) nor § 3115101(2) authorizes a statutory town to conduct marketing activities beyond the narrow scope of advertising, and that the trial court erred in determining otherwise.

Because the court included “marketing” activities within the
scope of the Town’s enabling act, the trial court also rejected
plaintiffs’ challenge to all of the specific activities conducted by the Town. But, some of these challenged activities may fall within the definition of advertising set forth herein and, therefore, on different grounds, may still be within the scope of the Town’s authority.

Because the record does not include sufficient details of the Town’s activities, as a reviewing court we are unable to make these determinations. Although the record suggests certain activities, it does not show whether these activities are simply non personal communications to the public (that is, advertising) or whether they are targeted, personal communications (that is, not advertising).

For example, the record indicates that the Town may be
maintaining a tourism promotion website. Such a website could be simply advertising if it just passively displays promotional information; however, the website could extend beyond advertising if it were to collect information and provide personal interaction with visitors. Likewise, the distribution of promotional materials could move beyond advertising if accompanied by personal contact or collection of data.
Furthermore, because of the limited record, and because
resolution of the issue is contingent on the trial court’s
determination of whether any of the Town’s activities is statutorily authorized as “advertising,” we also do not review plaintiffs’ alternative argument that the Town improperly expanded its tourism activities through administrative rather than legislative means. See Bickel v. City of Boulder, 885 P.2d 215, 234 (Colo.1994) (appellate court not empowered to issue advisory opinions based on hypothetical or uncertain facts); Tippett v. Johnson, 742 P.2d 314, 315 (Colo. 1987) (same). However, the trial court may address the issue on remand, if appropriate.

Accordingly, we remand to the trial court for further proceedings to determine the details and extent of the Town’s tourism promotion activities. See People v. Syrie, 101 P.3d 19,
223 (Colo. 2004) (only trial court can make factual findings). If the material facts are undisputed, the trial court may properly resolve upon summary judgment the legal questions, including which, if any, of the Town’s activities are authorized as “advertising” under § 3115901(1)(b). See C.R.C.P. 56(c); Nordin v. Madden, 148 P.3d 218, 221 (Colo. App. 2006) (summary judgment proper only when there are no disputed issues of material fact). However, if the facts are disputed, the trial court shall conduct such further proceedings as may be necessary to render a declaratory judgment determining whether the Town’s activities exceed its statutory authority.
The summary judgment is reversed, and the case is remanded
to the trial court for further proceedings consistent with this
opinion.
JUDGE VOGT and JUDGE NEY concur.

Kansas City Ad For Keystone

This is the competition folks. They are going after the summer business and are winning.
Cool off with good times in Keystone this summer! We cannot compete with this kind of quality, and the Marsh contingent don't know how to promote it anyway.

Keystone, Colorado is known as a year-round resort with as much to offer in thesummer as we do in the winter. Enjoy whitewater rafting, golf, horseback riding,sailing on Lake Dillon, or check out the stellar line-up of summer events andstart planning your Rocky Mountain vacation today!
July26-29
Mountain Art GatheringA Classic Art Show and Sale featuring some of America's leading artists, as well as Summit County's leading artists. All proceeds to benefit the Summit Foundation. The show, now in its ninth year, is free to the public and features a three-day art show and sale, activities for children and live music. The event also features a Friday night gala, all proceeds to benefit the Summit Foundation.
August4-5
11th Annual Bluegrass & BeerKeystone brings the wonders of Appalachia to the Rockies. Down-home cooking, frothy flavors and mountain-music are just a piece of the pie. In a whirlwind of hillbilly luxuries, folks gather while more than over 30 of the region's finest microbreweries showcase their unique blends of hops and barley.2 Free Tickets!

25-26
10th Annual Wine, Jazz & Art FestivalBrought to you by National Distributing Company. River Run braids hundreds of wines into a picturesque piazza of fine art, wine seminars and deluxe jazz ensembles. Kindle a sashayinto your step with a sophisticated, two-day affair in the heartof Keystone. 2 Free Tickets!

Ongoing
National Repertory Orchestra, Lake Dillon TheaterLake Dillon Marina, Kid's Discovery Days, Children's Theater

An Interesting Dilemma.

See, businesses sell product and collect taxes for the products sold. They give this money to the State, County and little old Estes Park. If they run out of product, they have to get more of it. That’s the problem. Fed/EX, UPS, DHL and other commercial carriers bring the products to the retail stores. That’s the way it works in every community.

Now, here in Estes, the Town hates business, hates delivery trucks and loves busses. They are trying to get rid of delivery vehicles so the EMPTY busses can park, sit for awhile, and move on. It’s busses that they think will solve all of the problems. Busses paid for by our tax dollars; busses that go from neighborhood to neighborhood to spread pollution fairly to everyone. If one were to look behind the scenes, one would see that the real goal is to use the bus idea to try and con the federal government out of money. That will be the next ploy. Pickering, liar that he is, will enhance ridership numbers as he did last year. “Hey folks, we have thousands and thousands of riders every day.”
Repola says that delivery vehicles interfere with busses, a very bad thing, and that the problem exists because of poor planning. However, lest you think differently, WE DO NOT HAVE A PARKING PROBLEM! Whew, that was tough to get out. You locals surely know there is not a parking problem. Easy as pie to get into the post office isn’t it? Kind of like musical chairs, with dozens of drivers trying to zero in on the one spot that turns out to have a motorcycle in what you thought was an empty space.
Summer in Estes Park, isn't it fun?

TIF cont.

A Look At The Books
EPURA Reviews Financial Data
By Mike Hedrick

The Estes Park Urban Renewal Authority (EPURA) received a financial snapshot at its June 20 meeting. Estes Park finance officer Steve McFarland presented a financial report citing about two years worth of running data for EPURA’s general fund, their capital fund and their dept. service fund.

McFarland presented EPURA’s current spendable balance showing how much money EPURA had available for projects. The report also showed the expenses of day-to–day operations.

At the meeting questions were raised about whether the school system and the hospital are involved in the funding of EPURA.

According to EPURA Director Wil Smith, EPURA has been funded by property taxes and sales taxes since 1982. “The taxes that would otherwise go to the various half dozen or so taxing districts, the increments above that from 1982 goes to EPURA,” said Smith. According to Smith, at the end of 25 years that increment goes away for EPURA and goes back to the various districts.

“Personally I think it’s a good way to fund something like EPURA because the increment is created by EPURA. Otherwise, it probably wouldn’t exist” said Smith.

EPURA benefits from the increments over the 25-year period. “At the end of it, all the districts get this windfall that EPURA has created for them” said Smith, “So in the long run, they’re better off. And in the meantime we use that to fund additional improvements that make their property even more valuable and their taxes even more.”

According to EPURA, the increments has no impact whatsoever on the school budget or the hospital budget. In the case of schools, anything that passes through gets made up by the state.

The issue as it stands seems to be the result of miscommunications.

After the discussion, a motion was made to determine what the exact impacts were and that EPURA respond appropriately to the media and to the public.

People who have questions about this issue are welcome to come to any of EPURA’s regular meetings at 8:00 a.m. the third Wednesday of every month in the Town Hall Board Room.


Alright already, we have researched and presented huge amounts of educational material to our readers over the past three years on this very topic, Urban Renewal Authorities and the moral dilemmas involved with TIF funding. The purpose has been and still is to educate the Estes Park masses.

Oh please lord give me strength, the article, copied above, was published in the Trail Gazette and the comments attribute to Wil Smith, reminds one of a third grade Weekly Reader. Smith makes claim that EPURA created a windfall in property valuation throughout the entire valley, entitling EPURA to a cut of your property taxes forevere and a day. Whiner Smith you are full of it, show me the economic cause and affect Whiner Wil. SHOW ME THE MONEY “WIL”, SHOW ME THE MONEY.

Prove it Wil - show us the facts. Show us in detail how the actions of EPURA has increased property values. The days of pulling the wool over the eyes of Estes Park just to keep your job are long gone.

Wil Smith is irrelevant and so is EPURA.

EPURA is irrelevant, doesn’t even control its own funds, must operate in secret, it cannot be effective because EPURA has allowed the town trustees to bastardize it politically so they ( the trustees) can assign authorities to EPURA that they ( the Trustees) do not have. Like the authority to condemn property, the authority to blight your personal property. They (the trustees) use the TIF funds to accomplish public works projects, not on economic development, it has been bastardized beyond repair.

There is a line in this article that is close to being relevant and that is all the miscommunication surrounding EPURA, I could not agree with this more.

The authors of that miscommunication and miss information are none other than town hall, Example: This is a quote by your mayor “EPURA is the planning arm of the town”. That is deliberate misinformation.

Correction: EPURA is a project authority, nothing more. Unfortunately your town government has become addicted to TIF funds. What Wil Smith is trying to impart is simply these things, gee I like my ample salary and if EPURA goes away so does my salary and after the flood (1982) we made some improvements and we intend to reap the blue sky for the rest of eternity.

If you read the articles that we generously provided for all of you to read and if you assimilated the information that was available to you in these articles you should have grasped the difference between how real Urban Renewal Authorities operate legally and how EPURA operates. The difference is night and day.

In Loveland the Urban Renewal Authority invested several million dollars installing and extending infrastructure service out to the “Centerra” development. The developer in turn brought millions of dollars of investment money into the community. The return on this investment brings in untold millions in cash flow and property taxes on new buildings that was unproductive dirt two years ago. They developed wealth for Loveland, Larimer County and Northern Colorado where nothing existed prior to the investment. There is a very real and tangible return on the investment for the community; something where nothing existed, economic development. Larimer Counties piece of that new pie is much lager than the TIF funding that was diverted.

In Estes Park (get used to this, because you are going to hear this a lot in the up coming months from Town Hall and Whinny Wil Smith who is just trying to keep his salary in Estes Park). Look at all the good we did in 1982 after the flood. Look at Elkhorn and Confluence Park. That project was completed in 1985 people. Town Hall has been entertaining themselves with our money since 1985. They built a Convention Center that has sucked money like sand down a rat hole, it sits idol 80% of the time, because it is to small to bring in conferences of any consequence, it is an issue of scale, to small to be relevant.

EPURA has a dubious legacy of sprawl roughly doubling the amount of retail square footage in their life time creating projects for a few chosen local boys, all negotiated under the table. EPURA has not created economy they only cut the pie into thinner and thinner pieces, to the point no one can make a living in the downtown business district. The current project on Weist Drive is a typical EPURA project conceived in secrete - totally mismanaged. Heath Construction has done a very good job given they were handed the job and provided only two, let me repeat TWO drawings with the instructions to complete the job in six weeks spending only 1.5 million dollars. Van Horn engineered the job and barely stayed a half step ahead of the contractor. Lord only knows what the final tally will be to us all. The end result of the investment will (this is a guess) be millions of dollars over what was publicized and thirty fewer parking spaces for the down town businesses.

That my beloved reader is EPURA style economic development.

That is why we urge the end of EPURA. If the building owners down town want improvements they should get together on their own dime and borrow the money and make the improvements to their own property or sell to someone who can afford to do so. Free enterprise.

Look at all the retail spaces created by EPURA, they are small square footages (a thousand square feet or less) intended to be leased to mom and pop seasonal under funded tourist trap operations. That is the exact description your trustees made to excuse the failure of business in Estes Park, Stupid, under funded mom and pop operations.

So why did EPURA build spaces that accommodate only failure?