HomeMy WebLinkAbout20090488.tiffHEARING CERTIFICATION
DOCKET NO. 2009-11.A
RE: HEARING TO CONSIDER 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 (2,266.118 ACRES OWNED
BY REI, LLC)
A public hearing was conducted on February 23, 2009, at 10:00 a.m., with the following present:
Commissioner William F. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem
Commissioner Sean P. Conway - EXCUSED
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Also present:
Acting Clerk to the Board, Esther E. Gesick
County Attorney, Bruce Barker
The following business was transacted:
I hereby certify that pursuant to a notice dated January 30, 2009, and duly published February 6,
2009, in the Greeley Tribune, a public hearing was conducted on February 18, 2009, to consider
the 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 (2,266.118 acres owned by
REI, LLC). At said hearing, the Board deemed it advisable to continue the matter to February 23,
2009, to allow additional time for the Board members to take the matter under advisement. Bruce
Barker, County Attorney, made this a matter of record. He stated the appeal is being considered
pursuant to the provisions in Section 32-1-501, C.R.S., and the Board has also been provided with
two Draft Resolutions submitted by the appellees and appellants. He stated the Board received
a number of e -mails over the weekend regarding this matter; however, he instructed the
Commissioners to disregard their content, as they were not a part of the formal record considered
by the District Board during its proceedings. He further stated the burden of persuasion is upon
the appellant, which is why the appellant was granted the opportunity of rebuttal at the hearing on
February 18, 2009. In response to Chair Garcia, Mr. Barker stated the issue of a burden of
persuasion was shared with the attorney's for both sides of the issue. Responding to
Commissioner Kirkmeyer, Mr. Barker stated the public testimony portion is closed and today's
proceeding is limited to making a determination based upon the official record.
Commissioner Kirkmeyer stated she read the record of the meeting of the District Board and came
to her conclusion based upon three findings regarding whether the exclusion is in the best interest
of the subject property, the District, and Weld County. She stated the exclusion may be in the best
interest of District #2, since it would provide the developer with complete control of the
development. However, the Consolidated Service Plan was established with two overlapping
districts, with all of the properties in District #1 being taxed, and District #2 being responsible for
the operational and administrative services. She stated, if the exclusion is allowed, there will be
two separate taxing districts, with two separate assessed valuations. Commissioner Kirkmeyer
stated upon review of the record, it is unclear where the oil and gas interests are; however, if the
2009-0488
SD0001
HEARING CERTIFICATION - 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 OWNED BY REI, LLC
PAGE 2
assessed valuations are not the same, there will no longer be a uniform tax for all of the properties.
She stated she understands that an excluded property still has the responsibility of paying its debt
from District #1; however, any future bond indebtedness would not result in uniform taxing because
the property no longer has a uniform assessed valuation. She further stated the exclusion will also
result in a change to what was approved under the 1999 Financing Plan. Commissioner Kirkmeyer
stated she feels this is a material modification, which is not in the best interest of District #2, or
District #1. She stated the record only states this will be in the best interest of the Districts, since
the money will all flow through District #2, where the developer has control over how the funds are
spent. She stated that arrangement appears to weaken the accountability to the taxpayers in
District #1, although the District #1 Board voted in favor of the exclusion. She further stated the
record contains no evidence or analysis of how the exclusion will be a benefit to either district, with
the exception of eliminating the threat of litigation. Commissioner Kirkmeyer stated the record
indicates Filing #1 is the platted portion of the development, and Filing #2 consists of District #2;
however, she expressed concern with properties petitioning for inclusion into District #1 once the
homes are built, rather than including the platted filing in its entirety. She expressed concern with
piecemeal development, the lack of uniform taxing and assessed valuations, and the lack of a cost
benefit analysis for the District Board's consideration. She further stated she does not believe
there was sufficient evidence in the record to support that it is in the best interest of Weld County,
since it will result in additional resource demands on the Assessor's Office in comparing assessed
valuations.
Section 32-1-501(3) lists additional factors for the Board's consideration, and subparagraph (b)
deals with the relative cost and benefit to the property to be excluded from the provision of the
special district's services. Commissioner Kirkmeyer stated the only benefit mentioned by the
developer in the record is that the exclusion will reduce friction and limit the potential for litigation;
however, there is no mention that it is not efficient now. She stated subparagraph (c) does not
appear to be addressed in the record. She stated District #1 would be required to transfer title of
several amenities and parcels of land to District #2, which does not appear to be beneficial to
District #1, since it will have less property, there would be a decrease in assessed valuation, and
it would lose control and an asset to District #2. Commissioner Kirkmeyer stated it does not appear
subparagraph (d) is applicable, since the record does not indicate District #2 would be taking over
the Library District or Fire Protection District, which have associated costs. Regarding
subparagraphs (e) and (f), she stated there will be no effect on employment or other economic
conditions in the special district, the surrounding area, or the state as a whole by denying the
petition, since development will be allowed to continue as approved under the Consolidated Service
Plan from 1999. She stated the only economic impact may be from the change in assessed
valuation and the taxing potential when there are two separate taxing districts. She stated the
reduced size of the districts may also impact their ability to bond for the necessary infrastructure
in District #2. Commissioner Kirkmeyer stated under subparagraph (h) she feels that there may
be additional costs to be levied on the other properties within the special district; however, she has
no way of making that determination because a cost analysis was not provided. She stated the
Financial Plan was attached to one of the submitted documents which addressed the number of
lots to be platted and developed at full buildout in 2018; however, the record also indicates Filing #2
is not platted and the developer states there are no plans for filing currently under process. She
stated, upon a thorough review of the record and the statute, she could not find that the exclusion
is in the best interest of the property, Districts, or Weld County. She stated the potential for conflict
2009-0488
SD0001
HEARING CERTIFICATION - 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 OWNED BY REI, LLC
PAGE 3
is not reason enough for an exclusion, nor is it a reason identified by the statute. Commissioner
Kirkmeyer express concern that the exclusion of 2,266 acres from District #1 is a material
modification to the Consolidated Service Plan, since it substantially changes the Financing Plan.
She stated although all of the properties may get taxed, the modification may not result in uniform
taxing. She also expressed concern with the potential for limited bonding abilities for District #2
which may prevent the District from providing some of the originally anticipated services. She
stated the property owners currently have the certainty of what is in the Service Plan, the Financial
Plan, and the priorities for the amenities that are to be completed. She stated if the property is
excluded, and the IGA is amended, the constituents no longer have any certainty and there is no
accountability to the taxpayers or to Weld County. She also referenced the discussion regarding
the guiding principals and the structure that was established in 1999. She stated the 1999
Consolidated Service Plan was intended to have overlapping districts; District #1 was to be the
taxing entity and District #2 would be the service provider, and this exclusion makes fundamental
changes to that guiding principal by allowing District #2 to also be a taxing district. She further
stated the record does not provide any evidence of the need for alternative financing, since there
is no growth in the area.
Commissioner Rademacher stated he came to same conclusion. He stated the Metropolitan
District Board has the authority to do what it did; however, after reading the record, he has
concerns with the substantial change to the Consolidated Service Plan and the approved financial
structure.
Commissioner Long concurred and stated there will be a material difference in how the taxes are
assessed, and an uncertainty of what amount of money will be available for the promised
infrastructure.
Chair Garcia commended Commissioner Kirkmeyer for her summary of findings. He stated he
concurs with her findings and added he found the record is not complete in addressing the
reasoning behind having the two districts and the maintenance of the balance. He expressed
concern that the exclusion from District #1 may result in a lack of services provided to future home
buyers, as was intended under the original Service Plan. Lastly, he stated the arguments regarding
the procedural issues were not determinative in his decision making process.
Commissioner Long stated he would like the record to reflect that he feels the appellant did satisfy
the burden of proof, and that the record provided a lack of real argument in favor of the exclusion
due to the lack of an analysis of the cost benefit.
Commissioner Kirkmeyer stated she generally supports the findings listed in the Resolution drafted
by Bernard Gaddis Lyons and Kahn, with the exception of Section 1, since that issue is not under
the jurisdiction of the Board. Mr. Barker agreed and recommended the Board not adopt a specific
draft Resolution, but, rather, acknowledge the points which were part of the statutes she referenced
in her previous comments.
Commissioner Kirkmeyer stated, pursuant to Section 32-1-501(5)(b)(I), C.R.S., the relief set forth
in the decision of the Board of Directors of the Beebe Draw Farms Metropolitan District #1
regarding the granting of the petition for exclusion of certain property be, and is hereby granted,
2009-0488
SD0001
HEARING CERTIFICATION - 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 OWNED BY REI, LLC
PAGE 4
and the exclusion is denied, as more fully stated for the following reasons: 1) the exclusion is not
in the best interest of the property; 2) the exclusion is not in the best interests of the excluding
district; 3) the exclusion is not in the best interests of Weld County; 4) the exclusion would have no
relative cost or benefit to the property to be excluded from the provision of the special district's
services; 5) the exclusion would provide no affect on the ability of the District to provide economic
and sufficient services to all properties within the District's boundaries; 6) denying the exclusion will
have no affect on the ability of the District to provide services at a reasonable cost; 7) denial will
have no affect on employment or other economic conditions in the special district or surrounding
area; 8) there will be no economic impact on the special district, surrounding area, region, or the
state; 9) there are economically feasible alternatives available; and 10) the exclusion is not a
boundary adjustment, as contemplated by Section 32-1-207(2), C.R.S., and it constitutes a material
modification of the Consolidated Service Plan. Accordingly, no exclusion of the property should
be excluded until Districts #1 and #2 seek and obtain modification of the Service Plan, pursuant
to the provisions of said Section. Commissioner Rademacher seconded the motion, which carried
unanimously. There being no further discussion, the hearing was adjourned at 10:35.
This Certification was approved on the 25th day of February, 2009.
APPROVED:
BOARD OF COUNTY
ATTEST:
Weld County Clerk to th
BY -
Deputy Clerk to the B
OMMISSIONERS
WELD !'U TY, •• eRADO
William . Garcia, C
air
Douglas Rademacher, Pro-Tem
EXCUSED
Se;, P. Conway
David E. Long
2009-0488
SD0001
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