HomeMy WebLinkAbout20121127.tiff RESOLUTION
RE: ACKNOWLEDGMENT OF THE BOARD OF COUNTY COMMISSIONERS' PRIOR
APPROVAL OF THE TODD CREEK VILLAGE METROPOLITAN DISTRICT SERVICE
AREA EXTENSION INTO CERTAIN PORTIONS OF WELD COUNTY FOR THE
PURPOSES OF SHOWING COMPLIANCE WITH THE REQUIREMENTS OF
PROPOSED AMENDED C.R.S. § 32-1-207(2)(D)(IV) OF PROPOSED H.B. 12-1239
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, by e-mail addressed to Bruce T. Barker, Weld County Attorney, dated
September 28, 2007, from George Rowley, on behalf of the Todd Creek Village Metropolitan
District No. 1 (the "District"), with an attached copy of a Proof of Publication in the Brighton
Standard Blade for October 10, 2007 (the "Notice") (a copy of said e-mail and Notice being
attached hereto as Exhibit "A"), the Board of County Commissioners was informed, pursuant to
C.R.S. § 32-1-207(3)(b), that the District intends to extend its service area to include the
following property:
Township 1 North, Range 67 West of the 6th Principle Meridian:
the southern one-half of Sections 21, 22, 23, and 24; all of
Sections 25, 26, 27, 28, 34, 35, and 36; and the eastern one-half
of Section 33, and
WHEREAS, the Notice stated that, "Any action to enjoin such activity as a material
departure from the Service Plan of the District must be brought within forty-five (45) days of the
publication of this Notice," and
WHEREAS, if approved by the General Assembly and signed by the Governor, in its
current form, proposed H.B. 12-1239 ("H.B. 1239") would provide a notice and approval process
for special districts proposing to extend their service areas into counties where they have not
previously served, and includes a proposed amended C.R.S. § 32-1-207(2)(d)(IV), which states:
"(2)(d) The requirements detailed in paragraphs (b) and (c) of this Subsection(2) do not
apply in the following circumstances:
(IV) Domestic water service and sanitary sewer service is being provided, or a water or
sanitary sewer service area extension has been approved by the county into which the service
area is to be expanded, within unincorporated territory located in the county as of the effective
date of this Subparagraph (IV)," and
WHEREAS, through a memorandum authored by Icenogle Seaver Pogue, PC, on behalf
of the District (a copy of said Memorandum being attached hereto as Exhibit "B"), the District
requests that the Board acknowledge that the lack of response by the Board to the District
regarding the Notice acted as an approval, in accordance with proposed amended C.R.S.
§ 32-1-207(2)(d)(IV) of proposed H.B. 1239, of the District's service area expansion into the
area of Weld County described in the Notice.
Ct- • Cii\ -Law
2012-1127
5- 3 -1.; BC0043
ACKNOWLEDGMENT OF THE BOARD OF COUNTY COMMISSIONERS' PRIOR APPROVAL
OF THE TODD CREEK VILLAGE METROPOLITAN DISTRICT SERVICE AREA EXTENSION
INTO CERTAIN PORTIONS OF WELD COUNTY FOR THE PURPOSES OF SHOWING
COMPLIANCE WITH THE REQUIREMENTS OF PROPOSED AMENDED C.R.S. § 32-1-
207(2)(D)(IV) OF PROPOSED H.B. 12-1239
PAGE 2
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Board hereby acknowledges that the lack of response by the
Board to the District regarding the Notice acted as an approval, in accordance with proposed
amended C.R.S. § 32-1-207(2)(d)(IV) of proposed H.B. 1239, of the District's service area
expansion into the area of Weld County described in the Notice.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 30th day of April, A.D., 2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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Sean P. Co air y
Weld County Clerk to the Board
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Date of signature: t 3- I a-
2012-1127
BC0043
EXHIBIT Page 1 of 1
George Rowley
From: George Rowley
Sent: Friday, September 28, 2007 3:46 PM
To: 'bbarker@co.weld.co.us'
Cc: Karyn Weller-Coffman; 'George Hanlon'
Subject: Todd Creek Farms Metropolitan District No. 1 -45 day notice
Follow Up Flag: Follow up
Flag Status: Completed
Attachments: PUBLIC NOTICE.DOC
You may recall that you met with Gary White from our office, Gene Osborn and George Hanlon several weeks
ago to discuss issues related to Todd Creek Farms. At that time the extension of the district's service area was
discussed. I was asked to forward the attached notice for your information, It is the proposed 45 day notice to
allow Todd Creek Farms Metropolitan District No. 1 to extend its service area into Weld County. If you see any
issues with the notice please let me know as soon as possible. If you would also like us to publish it in another
newspaper in Weld County please let me know. It is scheduled to be published on October 10th.
Sincerely,
George M. Rowley, Esq.
White, Bear&Ankele Professional Corporation
1805 Shea Center Drive, Suite 100
Highlands Ranch, CO 80129
Phone: 303-858-1800
Fax: 303-858-1801
Licensed in Colorado and Utah
THE INFORMATION CONTAINED IN THIS EMAIL MESSAGE IS ATTORNEY PRIVILEGED
AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF THE INDIVIDUAL
OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED
RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE TO DELIVER IT TO THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,
DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF
YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY
NOTIFY US BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE
ABOVE EMAIL ADDRESS. THANK YOU.
2012-1127
10/21/2008
PUBLIC NOTICE
PROOF OF PUBLICATION TODD CREEK FARMS
METROPOLITAN DISTRICT NO.
1
BRIGHTON STANDARD BLADE Notice s hereby given pursuant to
§32-11207(3)(b). C,R.S.,that the
STATE OF COLORADO Board of Directors of the Todd
Creek Farms Metropolitan District
COUNTY OF ADAMS SS. No.1 Intends to expand its service
area to include the property
described below:
Township 1 north, range 67 west
of the 6th principal meridian:
southern one half of sections 21,
22,23 and 24;
all of sections 25,26,27,28, 34,
I, Allen Messick, do solemnly swear that I am 35,and 36;and
eastern one half of section 33.
the Publisher of the Brighton Standard Blade; Any action to enjoin such activity
that the same is a weekly newspaper printed as a material depparture from the
Service Plan of the District must
and published in the County of Adams, State be brought within forty-five (45)
days from publication of this
of Colorado, and has a general circulation Notice,
therein; that said newspaper has been BY ORDER OF THE BOARD OF
DIRECTORS OF TODD CREEK
published continuously and uninterruptedly in FARMS METROPOLITAN
DISTRICT NO.1,
said county of Adams for a period of more By:Is/Mara Grannelf
than fifty-two consecutive weeks prior to the Secretary to the Board
first publication of the annexed legal notice or Adamscdms Conty ntyalloi t our
advertisement; that said newspaper has been Commissioners
Weld County Board of County
admitted to the United States mails as second- Commissioners
class matter under the provisions of the act of Published one time in the Brighton
Standard Blade on October 10,
March 3, 1879, or any amendments thereof, 2007.
and that said newspaper is a weekly
newspaper duly qualified for publishing legal
notices and advertisements within the
meaning of the laws of the State of Colorado.
That the annexed legal notice or
advertisement was published in the regular
and entire issue of every number of said
weekly newspaper for the period of 1
consecutive insertion(s); and that the first
publication of said notice was in the issue of
newspaper, dated 10th day of October, 2007,
and the last on the 10th day of October, 2007.
Publisher. Subscribed and sworn before me,this
the 21st day of October, 2008. 0Oct,\LOPe.
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A Professional Corporation
Attorneys at Law
4725 South Monaco Street,Suite 225
Denver,Colorado 80237
Telephone: 303.292.9100
Facsimile: 303.292.9101
MEMORANDUM
TO: Board of County Commissioners, Weld County
Bruce Barker, Weld County Attorney
FROM: Icenogle Seaver Pogue, PC
on behalf of Todd Creek Village Metropolitan District
DATE: April 6, 2012
RE: Todd Creek Village Metropolitan District - history of service area approval by
Weld County and request for resolution evidencing same in light of House Bill
1239
INTRODUCTION
Todd Creek Village Metropolitan District (the "District") requests that the Board of
County Commissioners (the "BOCC") approve the attached resolution formally recognizing the
2007 process the District followed to extend its service area into Weld County, with County
approval. This request for written recognition of the District's service area extension is
necessitated by recent legislation, House Bill 1239 ("HB1239").
Some of the Commissioners may be unaware of the HB1239's intricacies, and its peculiar
impact on the District and its customers and rate paying public. That impact will be explained in
this memorandum. This memorandum will also explain the statutorily allowed process the
District followed in 2007, the County's involvement in that process and the District's subsequent
orderly planning, design and funding of water and wastewater infrastructure to serve the entire
Weld County service area.
DISCUSSION
I. Weld County Service Area Extension Process.
A. District history leading to the 2007 process for service area extension into Weld
Coun .
The District was organized in accordance with the Special District Act, 32-1-101 et seq.,
C.R.S., pursuant to an order from the Adams County District Court on November 19, 2006. In
the formation of the District, the Adams County Commissioners specifically required that the
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District be a control district via formation of a small district and the establishment of a service
area which would not be subject to any mill levy or related taxation authority for property
situated within the service area. Thereafter, on August 23, 2000 the District's service plan was
amended by Adams County to increase its service area within Adams County and to increase its
debt limitation accordingly. Again, the additional property annexed into the service area was not
subject to payment of property taxes to support the District's operations or to retire District debt
obligations.
In the years leading up to 2007, the District engaged in numerous discussions with
developers seeking water and wastewater service and with the various municipal entities in Weld
County. On October 18, 2006, as a result of these discussions, the District and the City of Ft.
Lupton (the "City") entered into an intergovernmental agreement (the "IGA") whereby the City
and the District agreed that the District would provide water and sanitary sewer collection
services for properties located within a designated "growth area" within Weld County. Ft.
Lupton would be responsible for sanitary sewer treatment and disposal for collections generated
from the growth area.
Thereafter, in April of 2007 Ft. Lupton's Regional Water Quality Management Plan
("208 Plan") was modified by the North Front Range Water Quality Planning Association to
include a significant portion of the IGA's growth area.
During this process, the District kept Weld County advised and informed of all
developments, discussions and approvals being undertaken to provide water and sanitary sewer
service in this portion of unincorporated Weld County.
B. Use of then-existing Special District Act provisions to process 2007 extension.
Section 32-1-207, C.R.S., is the provision of the Special District Act which addresses
modifications of special district service plans or changes to powers granted pursuant thereto.
This section contains 2 different means of processing a modification to the original service plan
authority. Section 32-1-207(2), C.R.S., allows a district to process changes, such as the service
area extension, by seeking the approval of the governing jurisdiction for the original service plan.
In this case, that was Adams County. The District deemed it illogical and indeed disrespectful to
Weld County to ask Adams County to approve a service plan extension into another county.
Indeed, when advised, Adams County found the notion equally inappropriate.
Section 32-1-207(3)(b), C.R.S., provides an alternative process for activities such as the
service area extension. This section provides for publication of a 45-day notice of the activity to
be undertaken in a newspaper of general circulation in the special district's service area. The
section further requires that the district court be provided the notice, as well as the governing
jurisdiction's BOCC.
The District engaged in discussions with Weld County and Adams County staff and
elected officials before following the process set forth in Section 32-1-207(3)(b), C.R.S., to
achieve service area extension into Weld County as contemplated under the IGA. The requisite
2
notices were sent to Adams and Weld Counties, published as required and filed with the district
court which organized the District.
Section 32-1-207(3)(b), C.R.S., states expressly that no action may be brought to enjoin,
inter alia, any activity of a special district unless the action is commenced within 45 days of the
notice publication date. In this case, that date was October 10, 2007 and no action was brought
within the 45-day challenge period. It should be noted that the court may enjoin any proposed
action on its own motion and the Adams County District Court decided not to enjoin in this
matter.
11. House Bill 1239, also known as the "Todd Creek" bill.
HB 1239 was sponsored by Representative Vaad in Colorado's House of Representatives
and Senator Morgan Carroll in Colorado's Senate. The bill has passed Colorado's House of
Representatives and is presently pending final Senate approval. HB1239 has been described in
public forums, including the Special District Association's legislative briefings, as the "Todd
Creek Bill," being aimed at the District by admission of those in pursuit of the bill's passage.
Unfortunately, the bill's initial sponsor, Representative Vaad, only belatedly understood the
genesis and implications of the bill and proposed revised language which was not incorporated
following the Senate's hearings. That language would have rendered the District's current
request unnecessary.
HB1239 amends the very statute used by the District to process its service area extension
by adding new sub-sections (2)(b) and (2)(c). These new sub-sections expressly prohibit a
special district from furnishing domestic water or sanitary sewer service to properties in
unincorporated areas of counties which didn't approve the district's service plan, unless that
county gets a 45-day notice, holds a hearing and notifies all property owners that they have the
right to exclude from the proposed area to be served.
HB1239 does contain some "grandfathering" type provisions, including the notion that
the newly added requirements don't apply if:
(IV) domestic water service and sanitary sewer service is being provided, or a
water or sanitary sewer service area extension has been approved by the county
into which the service area is to be expanded, within unincorporated territory
located in the county as of the effective date of this subparagraph (IV). [emphasis
added]
111. Shortcoming of Section 32-1-207(3)(b), C.R.S., process.
While the District followed the 2007 process required in the Special District Act to the
letter; that process has a fundamental flaw. The process does not afford special districts with a
final document which would verify that the activity they are noticing was approved by the
county. This final document evidencing the County's prior approval is what the District now
seeks from the Commissioners. The resolution will allow the District's service area extension to
be properly grandfathered in order to avoid any challenge once HB1239 is enacted.
3
Additionally, it will allow the District to continue the orderly planning of water and wastewater
services and infrastructure for the service area in Weld County.
IV. How water and sanitary sewer infrastructure and service is extended to
development in an orderly fashion and the potential lack of equity in application of
HB1239 to the District.
Water and sanitary sewer facilities planning cannot be accomplished as a piecemeal
process. Major trunk line infrastructure, treatment and collection facilities must be designed
and sized based on the area to be served. Water rights must be processed in water court and
planned according to the size of the area to be served.
The District has spent years of planning, acquiring water resources and developing
strategic infrastructure designs for the expanded service area in reliance on directions given to
the District by elected officials and representatives of Weld County and the process it followed
in accordance with State statutes in 2007. The District entered into the IGA with Ft. Lupton,
and paid them $200,000 to fund the expansion of their 208 boundary and initial evaluations of
their sanitary sewer facilities, capacity and future demand analysis. The District has also
expended over $2,850,000 for the purchase of water resources and reservoirs in reliance on the
process it followed in 2007. Currently, the District is engaged in a strategic infrastructure
design effort with its engineers to support development plans that are being process through
Weld County's planning department based on the approved Dry Creek RUA and reliance on the
process it followed in 2007. Finally, the District has filed its initial change of use decree for its
Brantner Ditch shares in the water court to ensure that it is able to provide adequate and orderly
service to its service area customers in Adams and Weld County, again in reliance on the
process it followed in 2007.
Without a resolution recognizing the County's prior approval of the District's service
area extension, the District is vulnerable to arguments that it should follow HB1239's new
process in the added sub-sections. There is a fundament flaw with this logic. The new process,
allows for random exclusions of property from the service area. How can the District and its
rate paying citizens suffer a Swiss cheese of exclusions when it is already in the middle of
planning, sizing and funding facilities and expending funds to ensure adequacy of water in order
to provide reasonably priced water and sanitary sewer services?
It is one matter to allow property owners to exclude their properties in the formation of a
new special district, as the Special District Act has always contemplated. At the time of
organization, no money has been spent designing, planning and funding public infrastructure or
securing and maintaining water rights and negotiating intergovernmental agreements. At the
time a special district is organized, property can be excluded and all of the foregoing activities
undertaken follow that exclusion. Here, that is impossible; the District has incurred costs and
spent a considerable amount of time in negotiating an IGA, designing and planning
infrastructure and maintaining and acquiring water rights and resources, all in reliance on its
service area.
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The impact of requiring the District to follow a new process through HB1239, after it
followed the existing statutory process is to punish the District's present rate payers and
residential customers. It is their rates which will necessarily increase with exclusions, it is the
fees which must be imposed upon new development in Weld County which will increase. To
require the District to follow HB1239's process flies in the face of orderly water and sanitary
sewer facilities planning to the detriment of residents and developers, both of whom have
struggled in recent economic times.
CONCLUSION
The District greatly appreciates the BOCC's consideration of the attached resolution
recognizing that the District's service area is approved in Weld County, such that the District
meets the criteria in HB1239 once it is enacted. Without this approval, the District and its rate
paying citizens would be subject to a new and different process than that which it faithfully and
earnestly followed, with County endorsement, in 2007.
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M'.\TcvMD\Weld County\Memo
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