HomeMy WebLinkAbout20090404.tiffBEFORE THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY
IN RE: APPEAL OF DECISION OF THE BOARD OF DIRECTORS OF BEEBE DRAW FARMS
METROPOLITAN DISTRICT NO. 1 REGARDING THE GRANTING OF A PETITION FOR EXCLUSION OF
CERTAIN PROPERTY
APPELLANTS' BRIEF
Pursuant to §32-1-501(5) ((b) (I), C.R.S., Appellants Jeff Hare, Mike Welch, Rod Gantenbein
and Angie Powell, as taxpaying residents of the Beebe Draw Metropolitan District No. 1, by their
attorneys, Bernard Lyons Gaddis & Kahn, P.C., adopt by reference the issues and arguments set
forth in their Appeal previously filed with the Weld County Board of Commissioners, and hereby
submit the following Brief in additional support of their Appeal.
THE ROLE OF THE BOARD OF COMMISSIONERS.
Section 32-1-501(5)(b)(II), C.R.S., provides that upon appeal, this Board of County
Commissioners ("BOCC") shall consider the factors set forth in the statute and shall make a
determination whether to exclude the properties mentioned "based upon the record developed"
before the district. Although another hearing is not conducted, the BOCC is free to substitute its
judgment (a "determination") for that of the District's Board. The rationale for allowing the BOCC to
make a separate determination is consistent with the BOCC's responsibilities to insure compliance
with the service plan and with those factors listed that involve land use planning and other factors of
interest to the BOCC.
In contrast, inclusion appeals bypass the BOCC and are filed directly with the court for Rule
106(a)(4) review, and, therefore, the legislature must have intended that the BOCC review exclusions
from a planning, service area, and land use perspective to make sure that properties are receiving
services or are within designated service areas. If the BOCC could not substitute its judgment for
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that of a local district board, then there would be no need to have this extra step for an appeal, and,
like inclusions,. the appeal would go straight to court for judicial review. Under 32-1-401(2)(d), the
statute uses the "arbitrary, capricious, or unreasonable" standard in appellate review of an
inclusion, but in exclusions, that standard of review is NOT mentioned. Clearly, then, appeals of
exclusions to the county involve separate, independent decisions to make sure that a county's
overall comprehensive plan, service area assignments, and other long range planning and land use
issues are being met in a coordinated fashion.
This independent determination is similar to the review by other boards and commissions,
such as a board of education reviewing a hearing officer's findings of fact in a teacher dismissal
proceeding. In those proceedings, the board of education is bound by the factual findings but is not
bound by the ultimate findings as to whether those facts constitute grounds for a dismissal. See,
§22-63-302(9), C.R.S. As explained in West Yuma v. Flaming, 938 P.2d 151 at 158 (Cob. 1997),
"ultimate facts involve a conclusion of law, or at least mixed questions of law and fact, and settle the
rights and liabilities of the parties." Here, the application of the evidentiary facts to the eight
statutory criteria set forth in §32-1-501(3), C.R.S., are ultimate findings which the BOCC is free to
make irrespective of the District Board's resolution. See also, State Board of Medical Examiners v.
Mc Croskey, 880 P.2d 1188 (Cob. 1994) for discussion on distinction between evidentiary and
ultimate findings.
For these reasons, the BOCC may make an independent decision and ultimate findings
based upon the factual record presented.
II. THE PETITION WAS LEGALLY DEFECTIVE AND SHOULD HAVE BEEN REJECTED.
Section 32-1-501(1), C.R.S., establishes the legal requirements for a petition for exclusion.
The petition must: (a) be signed by 100% of the fee owners of the property that is subject of the
exclusion order; (b) contain a legal description of the property to be excluded; (c) state the assent
of the property owners to the exclusion; (d) be acknowledged in the same manner as a deed; and
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(e) be "accompanied by a deposit of money sufficient to pay all costs of the exclusion
proceedings." Here, the petition was defective ab initio because it was not signed by the fee
owners of approximately 39 acres of land, the legal description of which was contained within
the legal description attached to the Petition, and because it was not "accompanied by a deposit
of money sufficient to pay all costs of the exclusion proceedings." Accordingly, because the
Petition was legally insufficient, the BOCC should make an ultimate finding that the Petition was
void from the inception based upon the following.
A. The Petition's Legal Description Included Property Not Owned by Petitioners.
Regarding the sufficiency of the legal description, Ms. McGeady, attorney for the Petitioner,
admitted at the hearing that the Petition, as submitted, was defective because it contained property
owned by individuals who did not sign the Petition and that therefore the legal description had to be
corrected. Mr. Cockrel, attorney for the District, advised the District Board that it could chose to
approve the Petition by simply excluding the 39 acres from the exhibit that contained the legal
description. [Record; Minutes of November 3, 2008 District No. 1 Meeting, Section 10, pages 5-7]
Contrary to Mr. Cockrel's legal assertion, a Petition that is not signed by 100% of the property
owners is not legally sufficient for all purposes, is legally defective, and its illegality can not be later
cured by District Board action. It is true, as he advised his client, that a special district board may
grant the petition "or any portion thereof" (§32-1-501(2)), C.R.S.; however, that phrase of the statute
presupposes that the Petition was legally sufficient and signed by 100% of the fee owners of the
properties described in the Petition.
In other words, a property owner of 100 acres may petition for exclusion of all 100 acres
and the excluding board may grant the request for exclusion to all 100 acres or for less than the
entire 100 because the petition is legally sufficient as to the 100 acres. However, if the petitioners
do not own the entire 100 acres, yet the petition seeks exclusion of all 100 of those acres, the board
must reject the petition and a new petition must be filed because it is legally insufficient if it contains
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property that is not owned by the petitioners. The statutory language is clear and unambiguous:
"the boundaries ... may be altered by the exclusion of real property by the fee owner or owners of
one -hundred percent of any property situate in the special district filing with the board a petition
requesting that such real property of the fee owner or owners be excluded." Here, not all of the
owners signed the Petition in question.
To hold otherwise would allow a defective petition to confer jurisdiction on the excluding
board and allowing it to act favorably upon it if no one discovers the error. However, legal jurisdiction
is not dependent upon discovery of mistakes. Under Mr. Cockrel's over -inclusive theory, any person
could exclude property owned by another by using an over -inclusive legal description. And if later
discovered, the excluding board could simply amend its order. However, this over -inclusive theory is
dependent upon the discovery being made. If the petition is invalid as being over inclusive, then the
excluding board lacks jurisdiction to process that petition. Its jurisdiction is not dependent upon any
errors being found and corrected after the fact.
As explained in Johnston v. City Council, 540 P.2d 1081,1082 (Colo. 1975), with respect to
the sufficiency of an annexation petition's legal description, the Supreme Court stated that
annexation statutes are "more than mere formalities" and "either annexation proceedings are
conducted with strict compliance or they become a complete nullity? The Court explained that if the
annexation proceedings were not in compliance with the statute, the city council could not breathe
life into it by "ex post facto patchwork."
Here, the Board properly granted the NEW petition submitted by the owners of the 39 acres
but it should have rejected the petition of REI and required it to be resubmitted with the correct legal
description. It was legally improper for this District Board to attempt to breathe life into a defective
petition by patch -working the original Petition. Simply put, the District Board could not act upon a
legally defective Petition.
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B. The Petition Was Not Accompanied by the Statutorily Required Deposit.
Again, the statute is clear and unambiguous and requires that "the petition shall be
accompanied by a deposit of money sufficient to pay all costs of the exclusion proceedings." Here,
the Petition simply recited that the Petitioners promised that they would, in the future, pay the fees
incurred by the District. However, it is important to note that the statement in the Petition is also
legally insufficient because the promise to pay the exclusion costs/expenses is conditional —that the
costs/expenses would be paid but only if the Petition were accepted.
Obviously, this statutory requirement is intended for the benefit of the taxpayers. The
legislature clearly intended that petitioners pay a deposit up front by requiring such deposit to
accompany the Petition. The statute does not say "or with a promise to pay the bills when later
submitted" nor does it say "the taxpayers can lend the petitioners the money to pay the costs of
exclusion by allowing the payment to come later." It says the petition "shall be accompanied by a
deposit." Nowhere in the record is their any evidence that these costs and expenses were paid by
way of a deposit as required by the statute. Because this Petition was not accompanied by such a
deposit, the Petition was not legally acceptable, and the Board should have rejected it.
III. The Exclusion Order Was Conditioned Upon Execution of an Amended IGA
Which Does Not Assure Compliance with the Service Plan.
This exclusion, and the Exclusion Order in particular, were based upon the erroneous
assumption and assertion that such exclusion was in compliance with the approved Service Plan. In
the hearing, numerous statements were made by the Petitioner's representatives that the exclusion
was consistent with the approved Service Plan. The Resolution of the Board of Directors [Record,
November 3, 2008 District No. 1 Meeting, Section 12, page 2] states in the resolution portion that
the exclusion was approved subject to the execution of the Amended IGA "which sets forth those
amendments necessitated by the exclusion of the Property to assure the implementation of the
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Service Plan." To the contrary, this exclusion is in violation of the Service Plan for the reasons set
forth in greater detail in the Appeal, Grounds For Appeal, Section A.
The Service Plan establishes two distinct districts: a constituent district (District No. 1) that
contains all property, and thus can be governed by those directors who qualify by virtue of property
ownership or residency within the District, and a developer district (District No. 2) that is initially
coterminous but is controlled by the developer by excluding property that is sold, excluding the
owners/residents from voting and thus ensuring developer control over the timing, financing,
construction, and operation of the future improvements. .
The Service Plan contemplates that all properties lie within both districts until the parcels are
platted, developed, and sold. At that time, the developer/seller would petition for exclusion of the
sold lot from District No. 2 (developer district) and the property remains in District No. 1 (constituent
district). With this massive exclusion, however, the undeveloped properties are removed prior to
development/sale and there is no requirement imposed upon the developer/owners to re -petition for
re -inclusion into District No. 1. Without being re -included into District No. 1, the existing properties in
District No. 1 will bear the full brunt of the costs of operations of the facilities built, administered,
and operated by District No. 2. Such re -inclusion is simply assumed by the IGA.
However, the developer/owner is not a party to the IGA and therefore there is no requirement
in any legally operative document for the owner to re -petition for inclusion of the excluded property in
the future. There is nothing in the record that indicates that there are any legal obligations to do so.
The record is devoid of any recorded covenant or other instrument that would run with the land that
would so obligate the owner. Thus, the future inclusion back into District No. 1 is now at the
-discretion -of the landowner/developer, whereas -under the Service Plan, that property remains in
District No. 1 for all purposes, thus assuring that all developed properties remain within the
constituent District.
Accordingly, this massive exclusion is not in conformity with the Service Plan and therefore
will require plan modification prior to exclusion. Normally, boundary changes do not constitute a
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material modification of a service plan under §32-1-207(2), C.R.S. However, here, the exclusion of
this huge amount of acreage from District No. 1 so alters the fundamental structure of the two
districts that such change cannot be made by way of an IGA but can only be made by way of a
service plan modification.
The orderly development, administration, and taxation within the two districts are set forth in
the Service Plan which was self-executing: all property lay within both districts, and as property was
developed, it was excluded from District No. 2 but remained in District No. 1. Now, by this massive
exclusion, the property can only be re -included by the future vote of the future boards of directors of
District No. 1. The developer attempts to finesse this re -inclusion by inserting terms into the new
amended IGA that requires the future boards of District No. 1 to vote favorably on those petitions.
In addition, this "substitute" for plan modification is also dependent upon the successful election
within District No. 2 in November 2009 to authorize the needed mill levy. The Appellants concede
that the required ballot authorizations under TABOR should easily be approved due to the limited
number of voters in District No. 2, but such practical conclusion does not excuse the substitution of
this contingency for the certainty of the Service Plan. Such a modification requires adherence to the
statutory procedures for service plan modification and not an IGA which hopes for a successful
election to ensure the success of this new scheme. Simply put, the Service Plan's current provisions
cannot be replaced by an IGA that expects the developer to include its property in the future and an
expectation of a successful election next fall. These concepts need to be embodied into an
amended service plan, and not used as justifications for a massive exclusion that upsets the
delicate scheme and balance between the constituent and developer districts.
IV. THE AMENDED IGA ASSUMES THAT IT CAN BIND FUTURE BOARDS
IN THE EXERCISE OF DISCRETION.
As explained in Keeling v. City of Grand Junction, 689 P.2d 679, at 680 (Colo. App. 1984), an
elected city council "cannot enter into a contract which will bind succeeding city councils and thereby
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deprive them of the unrestricted exercise of their legislative power" (citing to City of Denver v.
Hubbard, 68 P. 993 (Colo. App. 1902), and holding that one city council could not bind a future
council in the methodology to be used in determining future city employee salaries and pay
increases).
Here, both (a) the IGA's requirement that both districts establish future identical mill levies, -
(now required because of this massive exclusion of property from District No. 2), and (b) the IGA's
requirement that future District No. 1 boards will vote in favor of future re -inclusion of the excluded
property2, are illegal intrusions upon the exercise of future boards' discretion in the exercise of their
legislative powers (determining the level of taxes3) and in the exercise of its quasi-judicial capacity
(inclusions4). Any exclusion that is totally dependent upon an IGA that illegally binds future elected
boards in order for the exclusion to satisfy the Service Plan is not in the best interests of either
district.
V. IN THE ALTERNATIVE, THE BOCC MAY MAKE INDEPENDENT FINDINGS
ON THE STATUTORY FACTORS BASED UPON THE RECORD.
In the alternative, if the BOCC determines that the Petition was legally sufficient, and that the
Board of. Directors did have jurisdiction to act upon it despite the lack of signatures of all property
owners; and if the BOCC determines that this massive exclusion does not constitute a material
modification of the Service Plan (even though it requires an illegal IGA and hoped -for successful
election to bring it into compliance with the Service Plan) then the BOCC may, at its discretion, make
an independent determination on each of the statutory criteria regarding exclusion.
Appellants incorporate by reference and restate herein their Appeal of Decisions of the Board
of Directors of Beebe Draw Farms Metropolitan District No. 1 Regarding the Granting of a Petition
Record, District No. 1 November 3, 2008 meeting; Section 11, IGA Sections 4.1 and 5.1.
2 Record, District No.1 November 3, 2008 meeting; Section 11, IGA Section 4.4.
3 §32-1-1101(1)(a), C.R.S.
4 §32-1-401, C.R.S.
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for Exclusion of Certain Property, particularly including Section III (Grounds for Appeal) and Section IV
(Independent Determination).
VI. CONCLUSION.
For the above stated reasons, Appellants request that the BOCC deny the exclusion and
direct that any such exclusion be considered only after approval, if any, of a modification of the
Service Plan which would re-establish the relationships between the two districts.
Dated: January 15, 2009.
BERNARD LYONS GADDIS & KAHN, PC
Attorneys for Appellants
P.O. Box 978
Longm. , 0 =O5O2-O978
By
Richard N. Lyons, II
tivons@bigiew.com
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CERTIFICATE OF SERVICE
This is to certify that on the y ry,copy foregoing
%S day of Janua 2009, a true and correct of the fore oin
APPELLANTS' BRIEF was served via U.S. Mail and e-mail upon:
Paul R. Cockrel, Esq.
Collins Cockrel and Cole, LLC
390 Union Boulevard, Suite 400
Denver, CO 80228-1556
pcockrel@cccfirm.com
MaryAnn McGeady
McGeady Sisneros PC
450 E. 17th Ave., Suite 400
Denver, CO 80203-1214
mmcgeady@mcgeadysisneros.com
Bruce Barker, Esq.
Weld County Attorney
P.O. Box 758
Greeley, CO 80632
bbarker@co.weld.co.us
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