Colorado’s second-highest court told a collection of Delta County voters on Thursday that they cannot file a referendum to repeal a zoning change, as the state constitution does not allow it.

After Delta County’s commissioners adopted a resolution updating the land-use code in 2024, a group of landowners tried three times to file a referendum petition in an attempt to trigger a popular vote to repeal the change. The county clerk, then the county attorney told them each time that there was no constitutional right for county voters to take such action.

The proponents then sought judicial review. In October 2024, District Court Judge Mary E. Deganhart dismissed their complaint. She noted a Court of Appeals decision from 2000, Dellinger v. Board of County Commissioners, had already settled the legal question.

In Dellinger, the court described that Colorado’s constitution gives voters the power to propose or reject state laws, and the power also extends to voters of “every city, town, and municipality.” Counties are none of those things and, aside from a few exceptions granted by law, “there is no constitutional right of initiative for electors at the county level,” the Court of Appeals concluded.

Deganhart deemed Dellinger “fatal” to the plaintiffs’ claim.

“There is no legal authority to repeal or modify the resolution at issue through a citizen petition,” she wrote. Because Dellinger put the plaintiffs on notice their case would be “frivolous,” Deganhart ordered the plaintiffs to pay the county $8,975 in attorney fees.

Representing themselves, the plaintiffs appealed to argue that Dellinger did not, in fact, determine the outcome. Dellinger involved county voters proposing an initiative for the ballot and not, as was the case in Delta County, a referendum seeking to repeal a law.

They also argued the county was exercising a municipal function in passing land-use legislation.

A three-judge Court of Appeals panel reiterated that nothing establishes a general right of county voters to pursue ballot initiatives or referendums.

To the extent the plaintiffs in Delta County were seeking to do something slightly different than those in Dellinger, “that is a distinction without a difference. Both the power of initiative and the power of referendum derive from the same constitutional provision,” wrote Judge Karl L. Schock in the Aug. 28 opinion. The “analysis in Dellinger applies equally to both.”

However, the panel believed Deganhart was wrong to impose attorney fees on the plaintiffs. Although Dellinger was on the books, noted Schock, the plaintiffs attempted to explain why their circumstances were different. The Court of Appeals did not agree with them, but that did not mean the arguments were frivolous.

“Thus, plaintiffs did not simply ignore Dellinger. Instead, they acknowledged it and sought to distinguish it,” he wrote.

The case is Bajda et al. v. Stephenson.