Whether or not a Colorado county can ask voters to opt out of a controversial controlled-growth amendment that itself has yet to be voted on was debated yesterday at state and local levels.

And while some counties, including Archuleta, were reportedly told by state election officials they could not legally do so, Montezuma County officials plan to go ahead with the ballot question asking for an exemption if the controlled-growth amendment passes.

"As of now, and unless I get told otherwise, it will be on the ballot," said Carol Tullis, Montezuma County election clerk.

Wednesday was the deadline for certifying questions for the Nov. 7 ballot.

The situation stems from Amendment 24, which basically forces counties to create Growth Area Maps for specific areas deemed appropriate for development. The maps that are then put to a vote of the local electorate for approval.

But under the proposed amendment to the state constitution, counties under 25,000 in population can ask voters for the county to opt out of the new growth criteria if the measure passes. Montezuma County just barely falls into that category, showing a population of 23,800, based on the 1990 census.

The commission believes that local growth issues are being dealt with effectively under the Landowner-Initiated Zoning plan. They want to see if the rest of the county agrees, so they decided to put a resolution on the ballot asking voters to exempt the county from the amendment if it passes.

"Putting the (opt-out) question during November will give us more time to deal with the issue and save us money on holding a special election later to see what people want if the amendment does pass," said Commissioner Kent Lindsay.

The situation of communities trying to opt out of a law that does not yet exist has caused confusion for state and county election officials because it goes against common sense.

"It is like putting the cart before the horse before there is even a horse," quipped Bill Compton, election director for the secretary of state’s office, which officially files ballot questions approved by county election clerks.

"My gut feeling is that it can’t be done, but I do not know what the specific reason is."

Nobody else seems to know for sure either.

The Pagosa Springs Sun reported Sept. 7 that the attorney general’s office, which works closely with the secretary of state’s office on election issues, told the county clerk that both items could not go on the ballot simultaneously. A spokesperson for Colorado Attorney General Ken Salazar’s office could not determine for what reason, though, when contacted Tuesday.

"It’s a mystery. Nobody here recalls telling Archuleta County anything regarding Amendment 24," said Ken Lane, the spokesperson. "The decision is up to county attorneys. We don’t comment on proposed amendments."

Likewise, a spokesperson for Secretary of State Donetta Davidson said she has yet to find out from the secretary what her specific reasoning was for telling the Archuleta County clerk this week that it could not be done.

"The secretary of state told me we were not allowed to because the law had not been enacted yet," said June Madrid, clerk for Archuleta County, adding that Davidson did not cite the specific law or statute preventing it.

Archuleta County commissioners decided to drop the exemption question from the ballot on the advice of their attorney, Mary Weiss, who said the rights for petitions and referendums are reserved for states and towns, but not for counties.

"There are statutory provisions for putting sales-tax questions on the ballot and there is a constitutional provision to de-Bruce from the TABOR amendment on the ballot, but it is my position that we do not have the right to put this on the ballot because the law is not in effect yet," Weiss said.

She also said that proponents of the growth initiative will likely sue the county if it does try to opt out before it is approved by voters.

"I think that if we put it on the ballot, it would be surely challenged and we would lose because right now we do not have the authority," she said. "Ballot issues we certify must go through the secretary of state and if we certify something that Davidson has said isn’t appropriate, then it would be kicked back," and denied.

But unless a court specifically decides it is not allowed, there is no reason a ballot question to opt out of Amendment 24 cannot go forward now, countered Montezuma County attorney Bob Slough.

"It is the commissioners who make the decision on whether to put it on the ballot unless a court says otherwise," Slough said. "This is news to me. Obviously it is an unusual situation."