BY FREDA MIKLIN
On February 7, Pam Schell-Varcony, a Greenwood Village resident who lives three-tenths of a mile from Tomcat Tactical, a retail business that sells firearms and ammunition out of a home on Powers Drive off Dayton Street in Greenwood Village that the business owner rents (he is not the homeowner), presented her city council with petitions that she said contained 250 signatures from GV residents and 25 more from other concerned citizens, asking the city council to close down the business because it violated GV’s municipal code in multiple ways listed on the petition. The petition also asked the council to stop licensing gun-selling businesses in GV residential areas. Approximately six other neighbors addressed the council about Tomcat Tactical, including its owner, a supporter of his, and four GV residents, including a former city council member, who said they felt it was highly inappropriate to sell guns and bullets out of a residential home and the council should put a stop to it.
Six weeks later, on March 21, the GV City Council held a study session on the subject. Although a number of concerned GV residents attended, none were allowed to speak because it is the GV council’s practice not to permit public input at its study sessions, though there is no law that prevents it. In nearby Cherry Hills Village, residents’ input is welcomed and often heard at city council study sessions.
The council discussed a staff report prepared by City Attorney Tonya Haas Davidson, including an 11-page memorandum from outside attorney Geoff Wilson, who GV retained to consult on the issues raised in the petitions it received on February 7, due to his long experience and recognized expertise in municipal law. Wilson was asked to advise the council on whether Tomcat Tactical was in violation of GV’s municipal code and, “the legal considerations, should Council elect to prohibit the sale of firearms in residential areas within the City,” on a going-forward basis.
Wilson, in his memo and in testimony presented to the city council in the March 21 study session, concluded that Tomcat Tactical was not in violation of the city’s municipal code because 1) having a website with multiple photographs of weapons did not constitute the guns being “on display from outside the dwelling,” which is prohibited. He also noted in his testimony that 2) for the business to constitute a “nuisance,” it must create a substantial annoyance to citizens in their enjoyment of (their) property.” A nuisance is typically exemplified by an operation being offensive to the senses, i.e., unsightly, noisy, or malodorous. Wilson reported that his information was that guns for sale at the home business are kept unloaded and ammunition was “stored in a secure manner,” not loaded into guns. GV’s police chief told the council that there have been no substantive police calls for service at Tomcat Tactical since it began operating. For all those reasons, Wilson’s opinion was that Tomcat Tactical was not in violation of GV’s municipal code thus not subject to being closed down by the city.
Wilson next addressed whether there were “constitutional or other legal considerations” that would prevent GV from changing its zoning code to prevent allowing additional retail firearm and ammunition sellers, going forward, the second request of the 275 people who were reported to have signed the petitions presented to city council six weeks earlier. His answer was no. Wilson cited recent U.S. Supreme Court decisions, as well as a Colorado law passed last June, SB21-256 Local Regulation of Firearms, that, “broadened the authority of local governments to legislate with respect to firearms.” Later on, City Attorney Haas Davidson bolstered that argument further, noting that, “There is a Ninth Circuit decision that says the Second Amendment does not provide you with a right to sell,” and that residential gun sellers “are a high target for burglaries,” which would make prohibiting additional retail gun sellers in the city a reasonable decision by the council.
In response to a question from City Council Member Anne Ingebretsen, Wilson said that no cities in Colorado that have passed ordinances prohibiting retail sales of firearms in residential areas prospectively have been sued for doing so.
Council Member Dave Bullock said, “We all know that there’s passionate people on both sides of this issue.” When he asked Wilson to opine again on the petitioners’ request to prevent new retail gun sellers in residential areas, Wilson said, “In terms of what they have requested additionally in their petition, going forward, that’s lawful. That’s within your authority to deliver to the citizens.”
There was discussion about a pending case in Boulder on firearm sales but Wilson made it clear that it was a business regulation case regarding what types of ammunition and magazines could be sold, whereas GV’s issue was a land use question based on its zoning code, and the issues were unrelated.
In response to questions from Council Member Paul Wiesner and Ingebretsen, Wilson said, “My disposition is to be fairly conservative in my advice. I try to keep people from getting sued. I don’t think you’re going to get sued if you try and limit prospectively commercial sales of firearms in residential areas,” adding that anyone could sue, but, “You wouldn’t get sued successfully.”
Nearly an hour into the discussion, Ingebretsen put the question. Did the council, going forward, wish to “look into possibly limiting residential gun sales?” She noted that she did not support this type of activity because it should be conducted in a commercial area, not a residential neighborhood.
Council Member Libby Barnacle called for public input so that “people could have their day in court..” Ingebretsen agreed that public input was needed.
Mayor Pro Tem Dave Kerber disagreed, asking, “Is there an appetite for council to entertain an ordinance that would ban commercial sales in residential areas? If there isn’t, then there’s really no need for a public meeting.” He said, “I don’t look at this as a gun issue. I look at it as…What right does the government have to impose burdens on citizens to live their lives .If someone is inside their home and doing something that doesn’t physically offend the senses, I don’t think that we as a governmental body has (sic) the right to compel anyone to do anything… I think that people should be allowed to… do what they want and make themselves happy, as long as they’re not, you know, do any type of nuisance situations… It’s a philosophical thing… The fact that it’s guns doesn’t matter to me. I just think that it’s not a problem that needs to be solved… You say, all right, we’re going to ban commercial sales of guns. We’re going to let 5,000 other guns go back and forth and be traded and sold and all that kind of stuff. So, what are we doing? All we’re doing is killing the profit motive… It doesn’t matter to me whether it’s for-profit gun sales or whether it’s a nonprofit or whether you are selling it yourself…. It seems to me that we would want licensed gun dealers selling their guns in accordance with the rules that they sell it and that would be more safe than if we had unlicensed gun dealers selling their own stuff… On those two reasons, I think it would be a bad regulation in any event and the fact that that’s not what we do in zoning. I think it’s a violation of people’s right to live their lives as they see fit. I would not support any regulation like this.”
Johnston responded, “I respect Commissioner Kerber’s comments but having heard from District Three residents for months now, I would support the zoning change that Anne (Ingebretsen) recommends…
Council Member Judith Hilton said, “I really go back and forth with this…I don’t like guns. I was a high school principal during Columbine…But we are thinking about regulating something that has a concern but no valid complaint behind that concern.”
Bullock said that if an ordinance were proposed, “It would be a vehicle to have public input, adding that, “I would like to see it widely publicized more so than just our normal posting because there’s a lot of people that don’t pay close attention to the postings.” Bullock also added, “Intuitively, I’m in Mr. Kerber’s camp.”
Notwithstanding both the city attorney and consulting counsel’s opinions that prohibiting new gun dealers in residential areas was not a Second Amendment issue, Council Member Paul Wiesner said, “This is sacred ground. This is in the U.S. Constitution. It has been a point that has been upheld and really emphasized since 1776. This is sacred,” adding, “Getting 200 people in here and another 1,000 petitions, I don’t think is going to arrive at a clear answer because it is a divisive issue…I think it is this council’s job to make the decision because that’s our job…” Soon after that, he told the other council members that it was his opinion that “us passing a regulation is not going to make anyone safer,” thus his opinion was, “We do not go forward.”
Ingebretsen asked to be heard, “Because I think a couple of my comments are being misinterpreted.” She continued, “I don’t think that us banning residential sales is going to solve or do anything to improve the gun situation that we have in this country… This is a very sophisticated commercial business… It’s not just about guns. It’s about this kind of commercial operation in a residential area,” adding, “I’d like a mechanism for us to take public input.” She told Wiesner that she disagreed with him on whether getting public input would be helpful, noting,
Ingebretsen concluded by asking her fellow council members how they would feel about having a retail gun seller next door to their homes, adding, “I know how I would feel. I wouldn’t like it.” Wiesner responded, “I agree. I wouldn’t like it either…I will retract my comment on not having a public hearing…The citizens, they need to be heard.” Ingebretsen then minded Wiesner that consulting attorney Wilson had said, “If we decide that we don’t want to permit residential gun sales, that’s not a Second Amendment issue.” Wilson was still at the table and joined the conversation, adding, “That’s right. It’s lawful for you to proceed in this manner.”
Council Member Libby Barnacle noted that this subject was very familiar to her and Johnston because it was brought up to her as far back as 2019 when she first ran for city council, but she didn’t think it would be appropriate “to have an ordinance proposed tonight,” and that, “In the spirit of allowing voices to be heard, we have a few members from districts three and four here today (though they were not allowed to speak) but…Mr. Pratt (the owner of Tomcat Tactical) is not here and I’m certain we’re going to have representatives from the NRA (National Rifle Association) who are going to be very interested…” Haas Davidson reminded Barnacle that, “It wouldn’t be tonight. It would be you directing me to do an ordinance that would go on an upcoming agenda, at which there would be a public hearing on the first reading of the ordinance.” That is longstanding standard procedure in GV for any new ordinance.
Kerber said, “I have been paying attention…We had a good public comment and the challenge was, people were saying the same thing. So we’ve heard just about every argument or discussion or theory or option or everything from the community.”
Since there has been no public hearing on this issue, Kerber was likely referring to the six citizens who were allowed three minutes each to address the city council on this issue six weeks earlier. That small group of citizens included the owner of Tomcat Tactical and one neighbor who supported him, plus four who felt that a retail gun seller was inappropriate in a GV neighborhood zoned as residential.
Kerber continued, “Unless there are five people (on the city council of eight) who are willing to entertain an ordinance to ban residential sales, I think it’s disrespectful to have people come in on a Monday night with the illusion that what they say matters… I don’t think we should ask for someone’s opinion when we’re not willing to listen to it or act on it…. There is nothing new that anyone could say to me that would make me change my view that we should have a ban on residential sales… But if there’s five of us who say, my mind is still open, then I would suggest we ask (the city attorney) to draft an ordinance and we set it for a study session or a public hearing.”
In a letter sent to Kerber the day after the study session, a GV resident of district three where Tomcat Tactical is located and who attended the study session, said to him, “I was frankly appalled at your cavalier attitude in attempting to prevent further consideration of the sale of firearms from a private home. You are entitled to your opinions, of course, as any private citizen. However, your expressed belief in less (or no) government action, and what you clearly regard as impermissible intrusion on business matters, should have no effect on your role as an elected official. You were anxious to abort further public input on whether the Village should prohibit firearms sales from a private residence within the Village, and unconcerned about the expanded ability, under current Colorado law, to do so. You were dismissive of any opportunity for residents on both sides to weigh in on the issue, as if nothing could be gained or learned. You made it obvious that your position is intractable. I don’t believe you considered the position of residents of District 2 (that Kerber represents) who signed the petition, and neither know nor care whether 5 or 50 of them signed it.” He continued, “You are responsible to the will of your constituents, but also to all the residents of the City. You are a representative, not a petty god, who can unilaterally impose your own attitudes and opinions without regard to the wishes of the GV residents you have volunteered to govern. I’m gratified that you did not prevail and that there will be further consideration, discussion, and (perhaps) action, on this important concern.”
Kerber reminded the council about the last time he successfully proposed cutting off all consideration of a request from citizens that was accompanied by a petition with several hundred signatures of GV residents. It was on January 13, after over 150 residents of the Landmark Towers petitioned to be included in the city’s trash collection program, as are other single and multi-family homeowners. Kerber pointed out, “Five of us said no…so it (consideration of their request) just stopped. We decided not to put it on the agenda.”
Similarly, on the question of residential gun sales, Kerber asked the council, “Are five people willing to consider an ordinance to ban these things or not?” Bullock had already said he would support “not moving forward” on an ordinance to ban residential gun sales but there were not three other council members who were willing to say that they, like Kerber, would not consider the ban, regardless of public input.
The discussion ended with the plan being that Johnston and Barnacle would work with the city attorney to craft an ordinance that would change the zoning code to prohibit new retail gun businesses. The purpose of proposing this ordinance will be to elicit public input on the idea before the council makes a decision. Although Johnston had expressed support for the ban, Barnacle was noncommittal. No date was given as to when the ordinance would appear on the council’s agenda.