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Home My WebLink About20090567BOARD OF COUNTY COMMISSIONERS COUNTY OF WELD, STATE OF COLORADO TRANSCRIPT OF PUBLIC HEARING IN 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) PURSUANT TO NOTICE to all parties in interest, the above -entitled matter came for public hearing before the Weld County Board of County Commissioners on February 18, 2009, at 915 10th Street, Greeley, Colorado, before Esther Gesick, Deputy Clerk to the Board and Notary Public within and for the State of Colorado, and TRANSCRIBED by Esther Gesick. I HEREBY CERTIFY that the attached transcript is a complete and accurate account of the above -mentioned public hearing. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Esther E. Gesick Deputy Clerk to the Board Cc uvu, a, i ca, n Iwo 3-14 - ooq Aa02 -D%7 I 2 APPEARANCES: BOARD OF COUNTY COMMISSIONERS William F. Garcia, Chairman Douglas Rademacher, Pro-Tem Sean P. Conway, Commissioner - EXCUSED Barbara Kirkmeyer, Commissioner David E. Long, Commissioner WELD COUNTY ATTORNEY OF RECORD: Bruce T. Barker APPELLANT'S ATTORNEY: Richard Lyons, Bernard Lyons Gaddis and Kahn, P.C. APPELLEE'S ATTORNEY: Paul Cockrel, Collins Cockrel and Cole MaryAnn McGeady, McGeady Sisneros, P.C. ALSO PRESENT: Esther Gesick, Acting Clerk to the Board 3 1 PROCEEDINGS 2 3 CHAIR GARCIA: Wednesday, February 18th land use 4 hearings, and uh, let's see. We have SD0001, Docket number 5 2009-11. Counselor make record, please. 6 BRUCE BARKER: Mr. Chairman, this is, uh, Docket number 7 2009-11. This is a hearing to consider appeal of decision of 8 Board of Directors of the Beebe Draw Farms Metropolitan District 9 Number 1, regarding the granting of the petition for the 10 exclusion of certain property. It's a total of 2,266.118 acres 11 owned by RBI, LLC. 12 CHAIR GARCIA: Alright, very good. And uh, 13 Commissioner Kirkmeyer? 14 COMMISSIONER KIRKMEYER: Yes, I would just like to make 15 a statement for the record. Um, during this past year, I was in 16 my campaign for election for County Commissioner. And, during 17 that period, I did have the opportunity to go out and meet with 18 several of the residents in this district, and sat down and had 19 a discussion with them, um, collecting information about the 20 formation and the developments that were going on within 21 Districts one and two out there in the Beebe Draw area. So, and 22 I don't know if I also need to state for the record that I was a 23 County Commissioner in 1999? 24 BRUCE BARKER: Correct. 4 COMMISSIONER KIRKMEYER: Um, so I was also a County 2 Commissioner during the 1990's, from 1993 through 2000, and in 3 1999 this District did come before the Board of County 4 Commissioners, at that point, as well, and I was a member of the 5 Board and did vote on it. Is that all I need to say? 6 BRUCE BARKER: I think also if you feel that you can be 7 impartial in hearing it today. 8 COMMISSIONER KIRKMEYER: Oh sure. Yah, and actually, 9 the meetings that I had with the citizens were really just more 10 information gathering, and I do feel that I can be impartial. 11 Um, it was during a campaign, I didn't actually take a position, 12 there wasn't anything before me. I wasn't an elected official, 13 so I feel that I can be impartial and open to hearing from both 14 sides during these proceedings. 15 CHAIR GARCIA: Thank you very much Commissioner 16 Kirkmeyer. And, um, welcome attorneys and counselors. And, uh, 17 it is my understanding that, uh. Actually before we go into the 18 oral arguments and such, let's have entries of appearance for 19 the record. 20 RICHARD LYONS: Good morning. My name is Dick Lyons, 21 P.O. Box 978, Longmont, 80502. I'm the attorney for the tax 22 paying residents of Beebe Draw Metropolitan District Number 1, 23 Jeff Hare, Mike Welch, Rod Gantenbein, and Angie Powell. 24 CHAIR GARCIA: Welcome. 5 1 PAUL COCKREL: Good morning Commissioners. Paul 2 Cockrel -- law firm of Collins Cockrel and Cole, in Denver 3 Colorado, and I represent the Districts in this proceeding. 4 MARYANN MCGEADY: My name is MaryAnn McGeady. I'm 5 with McGeady Sisneros, P.C., and our firm represents REI, the 6 excluded property owner. 7 CHAIR GARCIA: Well, welcome to everybody, and, uh, we 8 have discussed a -- I believe that you all have had 9 conversations with, uh, County Attorney regarding the procedures 10 that we're going to follow today, in this appeals matter. Um, it don't have to tell you all, but I say for the folks that are 12 here from the, uh, community, that this is an appeal, and we are 13 not going to be taking new evidence or new testimony. But, uh, 14 hearing on the legal argu - arguments and issues that, uh, have 15 occurred previously. And, uh, that is the understanding of the 16 attorney's as well? 17 PAUL COCKREL: Uh, Mr. Chairman, if I may, on behalf 18 of the District, I would like to supplement the record. Uh, 19 part of the transcript of proceedings - in fact the last item, I 20 believe, involved a petition for exclusion of a, what we call 21 the Director's parcel. Having read the briefs, I'm sure you're 22 all familiar with that. Actually, what I'd like to do is 23 supplement the record with the Order of the Board of Directors 24 that was approved on February 9, uh, it proving exclusion of 25 that property. I believe that completes the record. Even 6 1 though it was subsequent to the hearing, it's relevant to the 2 matter at hand. -- copy here for -- 3 CHAIR GARCIA: Direct to, uh, Counselor Barker. 4 RICHARD LYONS: Um, I would object to the inclusion of 5 some, um, proceedings that occurred after the date of the appeal 6 that we filed. Um, there may be a separate action brought by my 7 clients on this particular exclusion that occurred after the 8 appeal of the main exclusion. So, I would object to inclusion 9 of this -- uh, into this record at this time. 10 CHAIR GARCIA: And it's your belief that the record is 11 complete already? 12 RICHARD LYONS: The existing record is complete 13 without including this, yes. My clients are not appealing, at 14 this time, the exclusion in this order, so it should not be made 15 a part of this record or proceeding in any manner. 16 17 18 PAUL COCKREL: If I may, Mr. Chairman? CHAIR GARICA: Yes. PAUL COCKREL: Uh, this is simply informational. Uh, 19 I think you folks are being asked to assume the role of judges 20 here. I think its fair to understand the facts, uh, it's 21 probably going to be part of your decision, and it's relevant. 22 It was part of the initial record. It -- it doesn't prejudice 23 anyone. If you elect not to consider it, then you can simply 24 ignore it. 7 1 CHAIR GARCIA: Does the information add anything to 2 what, uh, anything substantive to -- to what has been included 3 in the record and in the briefs? 4 PAUL COCKREL: It does not. It simply concludes what 5 was identified in the record as the beginning of the second 6 proceeding; something that's referred to many times in the 7 briefs. It's -- it's the final step in the process. 8 CHAIR GARCIA: County Attorney? 9 BRUCE BARKER: Mr. Chairman, the, uh, appeal that's 10 before you today is pursuant to Section 32-1-501 of, uh, the 11 Colorado Revised Statutes, and specifically, subparagraph five, 12 um, b, which talks about, in essence, the petition comes after 13 the exclusion of property by the Board of Directors. And, it 14 talks about the record that is before, or, at least, the record 15 upon which the District made their decision. Um, although, the 16 information that's being presented today to supplement the 17 record is probably a follow-up and would conclude what has been 18 described, and it is described in detail, in both the transcript 19 and also the other, um, documents. Um, it really was not a part 20 of the record that was before the Board of Directors at the time 21 that it made its decision, both on October 20th, and I guess, on 22 November 3rd, um, as to this exclusion. So, although it -- it 23 does sort of conclude matter and give you a little feel for 24 exactly what happened afterwards, it was not something that the 25 Board of Directors made its decision on. So, to the extent that 8 1 it would add a little bit, I think that's good, but your 2 decision really needs to be on the record that was before, or 3 made at, the Board of Directors' hearings in October and 4 November. 5 CHAIR GARCIA: Hearing, personally, hearing that it 6 was just infor -- it's just for information, and that the, uh, 7 the substance of what has been provided in the record, and in 8 the briefs, isn't changed. I don't know that we need to add it, 9 but I'm open to a motion from any of the Board. 10 COMMISSIONER RADEMACHER: I would agree. I'm not sure 11 if it's necessary. 12 COMMISSIONER KIRKMEYER: I -- I don't think it's 13 necessary either, and I don't think we need to have that 14 information to cloud the issue. I mean, we're to look only at 15 what appeared before us and the information that we already have 16 received. Correct? 17 BRUCE BARKER: Correct. 18 COMMISSIONER LONG: I'm for less complication. Let's 19 leave it out. 20 COMMISSIONER KIRKMEYER: So, what would be -- is there 21 a motion that's necessary? 22 CHAIR GARCIA: I don't believe so. 23 COMMISSIONER KIRKMEYER: Ok. 9 CHAIR GARCIA: Thank you for providing the 2 information, and indicating, on the record, that it's completed. 3 And, uh -- 4 BRUCE BARKER: Mr. Chairman. Just for the record, the 5 ruling of the Board, then, is not to accept that supplemental 6 record, or supplement to the record today. Is that correct? 7 CHAIR GARCIA: That is correct. There was no motion 8 to accept that into evidence. But, thank you for, uh, bringing 9 that to light. Um, I believe that, um, counselors you've spoken 10 with County Attorney, and that, uh, we will be taking an hour 11 for oral arguments. And that it will be divided up in -- the 12 appellant will have a half hour, and the appellant will be -- 13 has the option of preserving some time for a rebuttal of that 14 half hour. Um, there are two Appellees in this matter, and uh, 15 there will be some division of that half hour amongst 16 yourselves. And I trust that you all have considered these 17 matters. Are we ready to uh -- Mr. Lyons, are you prepared to 18 give me a division of your time? 19 RICHARD LYONS: Uh, yes Mr. Chairman. I would like to 20 have twenty and ten. 21 CHAIR GARCIA: Very good. Mr. Cockrel, Ms. McGeady - 22 have you discussed the allocation of your time? 23 PAUL COCKREL: We have Mr. Chairman. Actually, Ms. 24 McGeady will proceed, uh, initially, and make a presentation. I 25 will follow that. 10 1 CHAIR GARCIA: Ok. And we'll just pay attention to 2 the entirety of the half hour, instead of worrying about a 3 strict fifteen - fifteen, or whatever. 4 PAUL COCKREL: That's right. And, I always defer to 5 MaryAnn on timing. 6 CHAIR GARCIA: Very good. Um, seeing -- if there's 7 nothing further, we'll begin with our, uh, oral arguments, with 8 Mr. Lyons' twenty minutes. 9 RICHARD LYONS: Uh, yes Mr. Chairman. Would you 10 prefer that I be at the podium, or remain seated, or what is 11 your preference? 12 CHAIR GARCIA: My preference is what makes you 13 comfortable -- 14 RICHARD LYONS: Ok. 15 CHAIR GARCIA: -- and that goes for all attorneys. Do 16 what, uh, the way you prefer. The podium is available for you, 17 if you prefer. 18 RICHARD LYONS: Maybe I'll go to the podium then. Uh, 19 good morning again. Uh, as um, Mr. Barker indicated, this is an 20 appeal of a decision by Beebe Draw Metro District Number One, 21 with respect to their granting of a -- that Board granting, um, 22 the petition of the property owners for an exclu -- massive 23 exclusion of over 2,300 acres, uh, from Beebe Draw Metro 24 District Number One. 11 1 I think it's important, before we get into the, uh, 2 arguments, that I go back and -- and refresh Commissioner 3 Kirkmeyer's memory from 1999, uh, when this Service Plan was, 4 uh, approved. Um, to kind of give you a background of why we 5 believe this, uh -- decision, is in error, and why you should 6 substitute your judgment, uh, for the best interest of the 7 District and the County, and deny the petition. Uh, basically, 8 in 1999 -- and I'll try to keep this, uh, as simple as possible 9 because I got so confused in reading, un, the Service Plan, 10 and reading all of these documents, that I had to do a little it diagram, as to who was doing what, and um, trying to keep track 12 of everything. But, I think that I can reduce it to -- to this 13 simplistic, uh uh, presentation and analogy. First, we had a 14 constituent district, which is represented by all of the 15 property owners in the district. Ok? That's District Number 16 One; it's what I call the constituency district. On top of the 17 constituency district, the constituent district -- I guess is 18 the proper term, is District Number Two, and I'm going to refer 19 to that as the developer district, because that is the, uh, 20 vehicle by which the developer controls the services that are 21 provided to the constituents. 22 Number One and District Number 23 top of the constituent district. So, we start off with District Two, the developer district on And, as property is sold by 24 the developer to individual homeowners, then that lot is 25 excluded from the constituent district, but remains in the -- 12 1 excuse me -- excluded from the developer district, but remains 2 in the constituent district. And why this is so, is that 3 preserves the developers control over District Number Two, by 4 not allowing, uh, homeowners to be voters in the developer 5 district. Because, in a special district, you have to be a 6 register elector in the State of Colorado and either own 7 property within the district, or live within the District in 8 order to be a qualified voter. So, as homes are sold by the 9 developer, they are excluded -- that lot is excluded from the 10 developer district, but it remains in the constituent district. 11 Now the constituent district had, under the Service Plan, issued 12 the general obligation debt and all of the other, uh uh, 13 financial debt agreements that paid for the improvements that 14 were installed in this development. Ok? Now, Colorado law -- 15 and this is a very important part of Colorado law -- provides 16 that when that property is in that district at the time of 17 issuance of that debt, it remains liable for that debt, even if 18 it is subsequently excluded from that district. So, because all 19 of the property is in District Number One, or the constituent 20 district, to begin with, it is always going to remain subject to 21 the general obligation debt of that District Number One, even 22 when it is excluded from District Number Two -- from the 23 developer district. Alright? 24 Now, what we have, uh -- the general oversight of the 25 County -- I think it's important to review why we're here today. 13 1 The State -- because if you think about it, it doesn't make any 2 sense that one political subdivision of the state is reviewing 3 the decisions of another political subdivision of the state. 4 But, the legislature has granted the County general oversight 5 responsibilities and duties with respect to special districts. 6 When a special district is formed, it has to come to you for 7 charter approval, or what we call a service plan approval. 8 That, I believe, is like analogous to the articles of 9 incorporation of a private corporation, or a charter for Home 10 Rule municipality. So, you have to approve that financial plan, 11 the facilities description, and how the general scheme is going 12 to occur, and that's what you did in 1999, that established this 13 symbiotic relationship between the constituent district and the 14 developer district. 15 The statute also provides that you have general 16 oversight over that approved service plan because the 17 facilities, services, and financial arrangements of the district 18 have to conform to that service plan, and if they don't conform 19 to that service plan, either the tax payers or the County can 20 bring an action in district court to enjoin that district to 21 force them to provide the services, and to implement the service 22 plan as provided in the approved service plan. 23 The second important thing of oversight is this 24 ability of a taxpayer to bring an appeal, which we are here 25 today, of an exclusion. And that exclusion has to come before 14 1 the Board by way of petition, and that petition has to be 2 certainly -- uh, contain certain aspects, certain things, and 3 then the hearing on that petition of the Board of Directors has 4 to apply certain statutory criteria, and make affirmative 5 findings on each of those criteria in order for the exclusion to 6 be effective. So, we're here today, appealing that decision, 7 and I want to dwell on two specific findings that we believe you 8 have an independent, uh, ability to make an independent 9 determination upon. And that is, whether the exclusion was in 10 the best interest of the District itself, and that is the 11 constituency district -- District Number One, and whether the 12 exclusion is, in fact, in the best interest of Weld County, 13 because both of those are statutory factors. Now, we are not 14 abandoning our arguments on the other statutory factors, but I 15 do want to simply focus my attention today, and your attention, 16 on those two particular issues. Now, we have raised in our 17 briefs, some procedural issues as well, that we believe the 18 petition was generally defective, because it was overly 19 inclusive and it included, in its legal description, those 20 thirty-nine acres that Mr. Cockrel just mentioned to -- uh, and 21 tried to supplement the record with. And then, it also, we 22 believe, is defective from the standpoint that it procedurally 23 failed to meet the statutory requirement of posting the 24 necessary money -- deposit, as the statute says, so that the 25 taxpayers don't pay for the exclusion proceedings; the 15 1 petitioner pays for that. Um, we believe that there are some 2 defects in that, uh, as pointed out in our brief. But, assuming 3 that you find that the petition was valid, despite those two 4 defects, um, then we request that you make independent 5 determination on whether, or not, this exclusion was in the best 6 interest of this District, and in the best interest of Weld 7 County. And we believe that it was not in the best interest of 8 either. 9 Turning towards what is in the best interest of the -- 10 of the district, we believe, that as a matter of law, if the 11 financial arrangements that have to result from this exclusion 12 are not in conformity with the Service Plan, then as a matter of 13 law, it is not in the best interest of District Number One, the 14 constituent district. And, we believe that is, uh, not in the 15 best interest of the District because this exclusion is a done 16 deal. Ok? They -- they just issued their order and it has been 17 excluded, the order has been recorded with the, uh -- obtained 18 by the District Court -- District Court has signed the order, 19 and the order has been recorded with the Clerk and Recorder. 20 So, it's a done deal. However, however, this exclusion, 21 although it's a done deal, is contingent upon three issues. 22 One, which is legally suspect -- and that's the amended IGA; 23 two, its contingent upon an election that has not yet occurred, 24 that has to occur in order for it to be, um -- the IGA to be 25 effective; and three, its contingent upon a promise by the 16 1 developer to re -include the property sometime in the future, but 2 there's nothing -- nothing in the record, there is no legal 3 document in the record that binds the re -inclusion of this 4 property back into the constituent district after it's developed 5 and sold. 6 CHAIR GARCIA: If I could ask a question on that 7 point, and go back to something that you had mentioned in the 8 brief. You mentioned that, uh, originally in the Service Plan, 9 that all property -- all property lie in both districts. As 10 property was developed, it was excluded from District Two, but 11 remained in District One? 12 RICHARD LYONS: Correct. 13 CHAIR GARCIA: IGA 14 And, you're saying that, uh that the would remove the property, but it would come back at 15 time? a later 16 RICHARD LYONS: That's the problem. By having the 17 Property owner grant having the District grant the petition 18 of the property owner, is now removed from the constituency 19 District Number One. But, the IGA is only between District One 20 and District Two -- that's what an intergovernmental agreement 21 is. There is no written agreement before you, there is no 22 covenant, there is no declaration, there is no legal document in 23 the record before you, that requires the property owner to re - 24 include the property into District One upon development. That is 25 in complete contravention of the existing Service Plan, which 17 1 says that the property will always remain in District One, and 2 it will just be excluded from District Number Two. So, that is 3 a major flaw, and that's why we say this is not in the best 4 interest of the District, because it's in violation of the 5 scheme, or the general arrangement that was established by the 6 Service Plan. Now -- 7 CHAIR GARCIA: If you could give me a little more 8 background so that I understand. Do you know why there was this 9 overlapping in the first place? Is that clear in the record? 10 RICHARD LYONS: Well, I think it, uh -- the why of the 11 scheme, or having the two overlapping districts, is to make sure 12 that all of the property is subject to the general obligation 13 debt, no matter what happens, so that all the property owners 14 will be paying that mill levy that is paying that indebtedness. 15 But, two -- to exclude the property, uh, upon development so 16 that the new, um, purchaser -- the homeowners that are buying 17 that lot to build their home will not be able to have any 18 representation on the developer district, thus allowing the 19 developer to continue to plan for the improvements, and to do 20 those according with their development scheme, as opposed to 21 listening to the citizens and telling them how they want the 22 development to occur. So, that's the purpose of it, its to 23 preserve the developer's plan, uh, and keep it away from the 24 homeowners as the homes are, uh, -- citizens grow and there's 25 more citizens and voters in District Number One. 18 1 CHAIR GARCIA: But, if that's the case, that would 2 involve the management or control of District Two, not District 3 One. 4 RICHARD LYONS: Correct. District One is still 5 managed by the directors who are voted by the property owners, 6 or the citizens within District One. 7 CHAIR GARCIA: Ok. 8 RICHARD LYONS: You're missing something here, I can - 9 CHAIR GARCIA: I'm think I'm missing something, 10 because I'm still wondering how the exclusion, uh, is, uh, out it of District One changes that, uh, that ratio or that balance 12 between the, uh, the developer control of District Two. 13 RICHARD LYONS: Ok. Because under the existing plan 14 the property will always remain in District One. Ok? It is 15 only excluded from District Two, so it always remains in 16 District One. That way, it always will be subject to the 17 existing mill levies, or future mill levies. Um, that property 18 owner will always have a voice on the Board of District One - 19 can always vote in those elections. By now completely removing 20 that, uh, there is no requirement for them to come back into 21 District Number One. Alright? So, that property that isolates 22 the existing property owners in District One, and removes them, 23 uh, from the decision making process. Ok? If you take a look 24 at the IGA, it really is a disenfranchisement of the voters 25 because, what we are now -- what we now have is District Number 19 1 Two going to be issuing the debt and telling District Number One 2 what that debt will be, and telling District Number One, through 3 this new IGA, that by the way, you're going to have to levy a 4 mill levy, whatever we tell you to do, to meet our debt 5 obligations -- the new debt obligations in District Number Two. 6 As opposed to having the voters in District Number One vote 7 themselves -- gee, let's issue more debt, and yes, we will 8 approve that and we will be willing to tax ourselves for more 9 debt to build more improvements. That decision making has now 10 been removed from the voters of District One and has been 11 isolated and centralized in developer District Number Two. Now, 12 it would make sense, and in fact, the Amended IGA does provide, 13 uh, that in the future when the development does occur, they're 14 contemplating that the developer will re -include the property, 15 once it's sold to the homeowner, and put it back into the 16 constituency district. Ok? But, as I was saying, there is 17 nothing in the record that obligates that uh, that developer 18 to do that. So we don't have any assurances that those new 19 homeowners will be brought back into constituency District 20 Number One. 21 CHAIR GARCIA: I think there's a question. 22 Commissioner Kirkmeyer? 23 COMMISSIONER KIRKMEYER: I just want to make sure I'm 24 clear now. Ok, District One levies the mill levy. 25 RICHARD LYONS: Uh huh. 20 1 COMMISSIONER KIRKMEYER: What's the mill levy right 2 now that they're -- 3 RICHARD LYONS: Well, there's -- its forty mills. 4 COMMISSIONER KIRKMEYER: Ok, so they're issuing the 5 mill levy -- 6 RICHARD LYONS: And it -- 7 COMMISSIONER KIRKMEYER: -- but District Two basically 8 says we take this mill levy from District One because they're 9 overlapping -- 10 RICHARD LYONS: Um hum. 11 COMMISSIONER KIRKMEYER: -- and we are going to 12 implement the, um, improvements -- provide the improvements, the 13 facilities, the water lines, the swimming pool, the golf course, 14 the horseback riding stuff. IS RICHARD LYONS: Correct. 16 COMMISSIONER KIRKMEYER: Correct. Right? 17 RICHARD LYONS: Right. But let me stop right there 18 and make sure that you understand, because it's critical for any 19 future analysis, that you understand that that forty mills is 20 divided into two components. 21 COMMISSIONER KIRKMEYER: Ok. 22 RICHARD LYONS: One is the debt service, and the 23 second is the operating. 24 COMMISSIONER KIRKMEYER: Yes. 21 1 RICHARD LYONS: So when that property is excluded from 2 District One, it remains subject to the mill levy obligation, 3 but it is not subject to the, uh, operations component -- the 4 general operating mill levy. Ok? 5 COMMISSIONER KIRKMEYER: It's only subject to the GO 6 bond, basically -- 7 RICHARD LYONS: Correct. 8 COMMISSIONER KIRKMEYER: the General Obligation 9 bond. 10 RICHARD LYONS: Right. ll COMMISSIONER KIRKMEYER: And is it split evenly - 12 twenty mills - twenty mills? 13 RICHARD LYONS: No, no, no. It's, uh, eight for debt 14 and thirty-two for operations. So, the 2,300 acres is now 15 subject to the eight mills, but is not subject to the thirty-two 16 mills. And, that's why they had to have -- redo the IGA, and 17 the IGA says, but we promise we promise we're going to hold 18 an election this November, in 2009, to encumber our property, to 19 get voter approval in developer District Two to increase the 20 mill levy by thirty-two mills to bring it up to forty. So, 21 they're going to say, we'll have the equality in par here. But, 22 as I said, it's a done deal, but the whole thing is contingent 23 upon one - an IGA that we believe is legally suspect; but two, 24 it's contingent upon the voters in District -- developer 25 District Two voting in November to have a Tabor increase, uh, 22 1 Tabor election to increase their mill levy, that they're subject 2 two, already, because their property is in District One. But, 3 by removing it, it's not subject to it. So, they have to -- so 4 what kind of a scheme do we have, that is dependent upon an 5 event occurring in the future November election? That is 6 certainly not in the best interest of District Number One. Now, 7 they'll say, well practically it will work because the only 8 property owners are controlled by the developers, so the 9 developer can promise -- well, it can't promise that the 10 election will pass because that's an illegal promise - in 11 Colorado you cannot do that. 12 CHAIR GARCIA: You have three minutes, just for your 13 information. 14 RICHARD LYONS: Alright, so, I think that I've covered 15 the reasons why we believe that -- that the, uh, it's not in the 16 best interest of the District, but we also believe that it's not 17 in the best interest of - of Weld County. Because, I think it 18 sets bad precedent that you can evade, uh, the established, um, 19 Service Plan, by having this massive exclusion, and then trying 20 to prop it up -- prop up the Service Plan with this elaborate 21 Intergovernmental Agreement, and calling an election that hasn't 22 yet occurred yet, and we have no assurances -- legal assurances 23 that it will pass. I believe that it -- the, several times in 24 their, um, their brief, they elude to the fact that the whole 25 purpose of this was their reaction to the recall that was 23 1 brought by the citizens. And so, what they're trying to do is 2 disenfranchise voters. Um, I believe it's in the best -- um, 3 not in the best interests of Weld County for that reason, and 4 then also because it strips accountability, uh, away from the 5 residents. Um, and they -- who cannot -- no longer hold the 6 directors responsible. I believe that it's evading the Service 7 Plan through this complex IGA scheme; it removes certainty. Uh, 8 if a voter calls up and asks you, "Well what's going on?"; you 9 can always go to a service plan and say this is what they're 10 supposed to do. There's no requirement for them to submit that 11 IGA for you for review, or for filing, or for recording. And 12 so, you don't know -- the County doesn't know what's going on, 13 uh, in that District if you're allowing this, uh uh, evasion of 14 the Service Plan Amendment. Uh, and so, because of this lack of 15 accountability, and the precedent that it sets, we believe it's 16 not in the best interest of Weld County or the District. Thank 17 you. 18 CHAIR GARCIA: Thank you very much. Ms. McGeady? 19 MARYANN MCGEADY: Thank you for the opportunity to 20 appear before you today. I'm here on behalf of REI, the owners 21 of the property that's been excluded. I'd like to review, with 22 you, the PowerPoint presentation that was provided to the Board 23 of Directors at the public hearing on the exclusion. The 24 history of the Beebe Farms development is that it was 25 approximately 4,120 acres of real property, located in Weld 24 1 County. Uh, to date, there's been fifty homes constructed in 2 the area that's been platted. There's about 186 platted lots in 3 the -- in the filing that's been platted. The eventual full 4 buildout of the community is over 800 single family residences, 5 with an estimated population of 1,860. This project map, um, 6 indicates in the green areas, the property that was petitioned 7 for exclusion. The Filing One area is kind of that white piece 8 in between the two big green parcels. The history of the Beebe 9 Draw Farms Metropolitan District is that it was originally 10 organized in 1986, to provide for the listed improvements. The 11 economy stalled, development stalled, and so, the original 12 Service Plan that anticipated the rapid absorption of 13 development and a rapid installation of infrastructure was 14 frustrated. Um, and in 1999, I think we had a typo in the 15 presentation, but it was in 1999, there was a reorganization of 16 the Districts, and a Consolidated Service Plan was provided, uh, 17 pursuant to which the Beebe Farms Metro District was renamed 18 Beebe Farms Metropolitan District Number One, and created was 19 second District -- the Beebe Farms -- Beebe Draw Farms 20 Metropolitan District Number Two. The purpose of the 21 consolidated plan was to assure - one, that there would be a 22 uniform property tax and a reasonable tax burden on all property 23 within the development; that the consolidated structure would 24 assure that the existing District One bonds were paid and that 25 the public improvements would be provided and financed at a time 25 1 when they were needed. It also assured that the costs would be 2 evenly distributed throughout the community, not just on the 3 first phases of development, but on all phases of development, 4 and that all areas would pay their fair share of the cost of all 5 public improvements -- not only the capital costs, but the 6 operation and maintenance costs. 7 The consolidated financing plan, inside the 8 Consolidated Service Plan, anticipated the revenues from forty 9 mills would be used first, to pay the District One debt, 10 secondly, to be remitted to District Two for payments of all the 11 operation and maintenance costs, and also all the capital 12 construction costs. The developer has, um, built improvements 13 from the cash flow that comes from the District, but also from 14 its own advances and construction, um, and anticipating 15 reimbursement in the future. The current facilities that have 16 been, um, installed and the anticipation of future facilities 17 and phasing of facilities has been determined with resident 18 input, with committee structures. Uh, the improvements that are 19 already in place in the development include: a thousand -acre 20 reservoir with marina and boat docks, sixteen hundred acres of 21 open space and nature preserves, miles of riding and walking 22 trails, community swimming pool and cabana, playground and 23 community activity areas, community lodge, horse lots, outdoor 24 riding arena, and the street, water and drainage improvements 26 1 that support the development in Filing One. District Number Two 2 3 COMMISSIONER KIRKMEYER: I'm sorry. Can I just ask a 4 question? So, all that's been done? So it's all for the 180 5 lots that are developed, but there isn't a home on them -- 6 they're platted, but they aren't developed, and the other fifty 7 homes, approximately, that are there? 8 MARYANN MCGEADY: The fifty homes are within the 186 9 platted lots. So, there's another hundred and thirty something 10 lots in that Filing One to be completed. And, yes, all these 11 improvements are in place at this point in time, service that 12 community. 13 COMMISSIONER KIRKMEYER: So, each lot has water and 14 sewer available to it -- or water available to it? 15 MARYANN MCGEADY: Um, clarification? Christine, is 16 the water to all 136 lots? 17 COMMISSIONER KIRKMEYER: Actually, it would be to all 18 180 lots. 19 MARYANN MCGEADY: It's, it's generally available -- it 20 hasn't been into all the streets yet. So, I'd have to ask 21 Christine on the definition. But, there is already water, 22 sewer, and streets in the -- in the platted areas that serve the 23 fifty lots that are already developed, and there are houses on 24 them, and the remainder of the Filing Number One, there may be 25 extension needed to get to the rest of the lots. 27 1 COMMISSIONER KIRKMEYER: There may be, or there does 2 need to be an extension to the rest of the lots? 3 4 5 MARYANN MCGEADY: I would have to ask. COMMISSIONER KIRKMEYER: Ok. MARYANN MCGEADY: Christine? 6 CHAIR GARCIA: Is this something that we need to take 7 testimony on? 8 MARYANN MCGEADY: Is it -- if it's critical to know I 9 can come back to it once she has the answer. 10 COMMISSIONER KIRKMEYER: That's fine. 11 MARYANN MCGEADY: Ok. But, my point in the 12 presentation was to suggest that, for the Filing Number One, the 13 District has already put in the infrastructure to provide water, 14 sewer, and drainage, um, to the fifty houses that area there. 15 And the plans are there to complete the Filing Number One 16 improvements. The remainder of this things are -- all of the 17 park and recreational amenities listed are already installed and 18 in place. 19 On the amenities to be constructed, District Two 20 continues to be responsible for the installation of those 21 improvements. There are -- all of the Board members of District 22 Number Two are REI affiliated individuals. Um, the dynamic 23 between the REI property owner and the REI affiliated 24 individuals on the District Two Board, um, has worked -- I'm 25 sorry. They have worked consistently with the residents to 28 1 define what the public improvements would be and how these 2 future improvements would be phased and installed, and the 3 amenities on this list were defined pursuant to that process. 4 So, what is anticipated to be completed in the future includes a 5 tennis court, basketball court, multi -purpose court, additional 6 equestrian facilities, putting greens, additional playgrounds 7 and play fields, cross country riding course, and of course, the 8 remaining water, sewer, streets and drainage improvements. 9 The Consolidated Service Plan, I agree with what Dick 10 has suggested, is a charter for the community. It's a charter 11 for how the Districts function, and how they function with each 12 other. This charter, uh, specifically states that the Districts 13 - each of the Districts have complete discretion to approve 14 inclusions or exclusions; that District Two has the power to 15 impose property taxes within its boundaries; that District Two 16 is authorized to provide the public services and facilities 17 throughout both districts. The Consolidated Service Plan, 18 therefore, sets up a common service area in the entire boundary 19 that comprises the legal description contained within the 20 Service Plan, and it's up to the two Districts to coordinate how 21 they provide those two services. The Service Plan does 22 reference intergovernmental agreements, does not include the 23 definitions of -- and, and provisions of those agreements, but 24 provides that those agreements would be entered into in the 29 1 future between the two districts to coordinate the provision of 2 services. 3 In October of 2008, in response to concerns about 4 friction in the community from a finite group of individuals, 5 REI submitted a petition for exclusion from -- of its 2,226 6 acres of undeveloped property from District Number One. 7 District Two will be able to provide the services to the 8 property more efficiently, while still being subject to the 9 terms of the Intergovernmental Agreements between the Districts. 10 The exclusion will continue to assure that uniform property tl taxes on all property within the development, and will assure 12 that all amenities will be available to the future and current 13 residents of the development. It is REI's position that the 14 record and facts before the District One Board, and this Board 15 of County Commissioners, continues to support the exclusion of 16 the REI property. The exclusion of the REI property is in the 17 best interest of the property, District One, and the County. 18 REI's position, in petitioning for this exclusion, is that the 19 continuing friction between District One and District Two, and 20 that -- well, the friction between a finite group of individuals 21 and District One and District Two, which can become, in the 22 future, friction between District One and Two in financing 23 public improvements will frustrate the completion of the 24 installation of infrastructure in this community. The purpose 25 of the organization of two districts to work together, we 30 believe, was to assure that District Two had the ability to 2 continue to install the improvements that were anticipated to be 3 installed, pursuant to the Service Plan. There's over twenty - 4 five million in improvements to be installed in this community. 5 Even with fifty residents there, and the magnitude of 6 infrastructure that is already in place, and the amenities 7 already in place, the community is still in its infancy. The 8 people -- many of the residents who live in the community, there 9 are eleven of them present today, support the District One 10 Board's decision in excluding this property and support the 11 decisions of REI as a developer in the community to continue the 12 flow of funds and the installation of infrastructure that will 13 complete this community. 14 A review of the transcript, and there's over a hundred 15 and twenty -- there are a hundred and twenty pages of 16 transcript. There are twenty-four residents present who 17 inquired and had their inquiries responded at the public 18 hearing. There were not facts or evidence presented in that 19 hearing that would support a denial of the exclusion, so we 20 believe that all the evidence provided does support the 21 exclusion. We also believe that the exclusion, um, would result 22 -- I apologize. The relative cost and benefit to the REI 23 property also justifies exclusion of the property. District One 24 will continue to be able to provide services to its residents in 25 an economical and sufficient manner, and that no additional 31 1 costs will be levied on the property remaining in District One 2 upon exclusion. District Two will be able to provide the 3 services to REI property more efficiently, and at a more 4 reasonable cost, than if the property remained in District 5 Number One. The exclusion of the REI property will have a 6 positive impact on the employment and other economic conditions 7 within District One, the region, the surrounding areas and the 8 state as a whole. Particularly with regard to the County, we 9 feel this exclusion was necessary, and the amendment to the 10 Intergovernmental Agreement necessary, to assure that the intent 11 of the Board of County Commissioners in approving the 12 Consolidated Service Plan, approving the land uses and 13 development in Filing Number One, and as the County approves 14 future land use approvals for completion of the project, are not 15 frustrated, but actually facilitated to conclusion. 16 With regard to the Intergovernmental Agreement, again, 17 the Consolidated Plan did not require a specific 18 intergovernmental agreement; it referenced that there would be 19 intergovernmental agreements, one or more, entered into by the 20 Districts. Under the original agreement, Section four of that 21 agreement provides that District One is to impose a mill levy, 22 referred to in defined terms, as the required mill levy. That 23 required mill levy was to be the mill levy, up to forty mills, 24 that was identified by District Two, to District One to be 25 imposed. Under the amended Agreement, that arrangement does not 32 1 change, consistent with the Consolidated Financing Plan, within 2 the Consolidated Service Plan, all property is to impose forty 3 mills, the first use of that money - to pay District One debt, 4 then to be remitted to District Two for operations and 5 maintenance and capital improvement installation. That does not 6 change under the Amended IGA. 7 One thing I would like to reference here, and I think 8 that we have a map, if we could go to that, is a, um, 9 identification visually of the area here and how they would be 10 taxed. All of the colored areas, except for the -- well, all 11 the colored areas in yellow and green are the properties that 12 were originally within both Districts. Those properties would 13 all continue to pay the same debt service mill levy that is 14 imposed to pay the bonds that were outstanding as to the time of 15 approval of the Consolidated Plan. The total mill levy for all 16 the yellow and green areas will continue to be forty mills; the 17 differential in the mill levy between that required to pay 18 District One's bonds and forty mills will be imposed by District 19 One in the yellow places, and by District Two in the green 20 places. Now, the appellants, here, have raised several 21 technical issues that they feel are persuasive. And, the 22 District Board did not find them persuasive, and we do not find 23 them persuasive. With regard to the thirty-nine acres, um, REI 24 became aware there were title defects for the parcel that was 25 thirty-nine acres of the over two thousand two hundred (2,200) 33 1 acres petitioned for exclusion. On the evening of the exclusion 2 hearing, they brought this to the Board's attention, they 3 represented to the Board that they would have those title 4 defects corrected, they would resubmit a petition for exclusion, 5 and would process for that exclusion. That petition was 6 submitted, and that exclusion process has been, um, completed. 7 The title defects were corrected. 8 The petition for inclusion represented that REI would 9 pay for the costs before the District Board and incurred by the 10 District Board as a process of the exclusion proceedings. This 11 is very customary in the industry, um, most -- all the special 12 districts that I'm aware of, work with that kind of forum, and 13 in the facts circumstance of the relationship between REI and 14 these Districts, it was very reasonable for the Board to assume 15 that REI would make payment of those costs based upon its 16 representation. Um, REI has spent hundreds of thousands of 17 dollars in advances to the Districts, and waiting over time to 18 be reimbursed. There is no reason to believe, and the District 19 Number One Board did believe, that REI would make payment and 20 make good on its promises to this community, which it always 21 has. 22 The last section relates to the election issue, uh, 23 and the technical issue related there. The District Number Two 24 Board that executed this amendment to the Intergovernmental 25 Agreement, are all REI related individuals and affiliated 34 1 individuals. They are also the majority of the eligible 2 electors within the community. They are also the ones who are 3 trying to process this, so that there is revenue available to 4 complete these improvements. It is reasonable to assume, and it 5 was reasonable for the District Two Board to assume and the 6 District One Board to assume, that the November election would 7 be brought before that limited set of voters, and that limited 8 set voters would support that conclusion. Um, I'll let Paul 9 speak to the amended IGA and the provisions there to address, 10 um, in the event the election were not to pass, which again is 11 not a reasonable conclusion under this fact pattern. Just as it 12 was reasonable, um, to assume when the Consolidated Plan was 13 processed that REI was a participant in this community and would 14 continue to be, it's reasonable to assume that today. In 15 conclusion, I'd like to respectfully request that the appeal be 16 denied, because the record supports that the exclusion of the 17 REI property satisfies the requirements set forth in Section 32- 18 1-501(3) of the Colorado Revised Statutes, that the record 19 supports the petition for exclusion was not legally defective, 20 and that the record supports the exclusion of the REI property, 21 and the amended IGA are not material modifications of this 22 Service Plan. Thank you. Do you have any questions for me? 23 CHAIR GARCIA: Yes. Commissioner Kirkmeyer. 35 1 COMMISSIONER KIRKMEYER: So, am I correct then, 2 District Two would not pay for any more improvements in District 3 One? 4 MARYANN MCGEADY: District -- Thank you for that 5 question. Under the Consolidated Service Plan, Districts One 6 and Two must work together and use the revenues that they have 7 to complete the infrastructure that is required to be installed 8 under the Plan. So, District Two's taxes will be paid to 9 District Two, they are committed, under the Service Plan, to be 10 used in the exact same way as if they had come from District 11 One's mill levy. So, there is a change in which entities impose 12 the tax and collect it; there is not a change in how it is 13 spent. 14 COMMISSIONER KIRKMEYER: And that's in the IGA? 15 MARYANN MCGEADY: That's in the Service Plan, and it's 16 in the IGA. 17 COMMISSIONER KIRKMEYER: Well, the Consolidated 18 Service Plan had District Two and District One overlapping. So 19 that makes sense that it would be in there. 20 MARYANN MCGEADY: Well, but the Consolidated Service 21 Plan also allowed for the inclusion and exclusion of properties 22 by One and Two, so there could be reconfiguration of those 23 boundaries, and also provided for taxation powers to District 24 Two, authorized them to impose mill levies. And so, that, um, 36 1 alternative opportunity was embedded in the charter of that 2 Consolidated Plan. 3 COMMISSIONER KIRKMEYER: Well, I understand that, but 4 I don't think that it was understood at the time, in 1999, that 5 the Consolidated Plan would have such a major exclusion of 6 property. I mean, that's why you came in and had the 7 overlapping, `cause in 1986, when I wasn't on the Board -- 8 9 10 11 MARYANN MCGEADY: Um, hum. COMMISSIONER KIRKMEYER: -- you just had District One - MARYANN MCGEADY: Correct. COMMISSIONER KIRKMEYER: -- who did everything. Who 12 levied the taxes and then also provided the services. Right? 13 MARYANN MCGEADY: Understood. 14 COMMISSIONER KIRKMEYER: And so, in 1999, you came in 15 and said, because of the economy and all the other same kind of 16 reasons, that, um, and because you didn't have that many lots 17 sold, that you need to have a District One the constit 18 whatever! District One -- what is it? 19 CHAIR GARCIA: Constituent -- 20 COMMISSIONER KIRKMEYER: Constituent. Thank you! 21 Constituents' district, and then you had to have an overlapping 22 one, District Two, because at that time that was how you were 23 going to provide for the financing of all the improvements. 24 MARYANN MCGEADY: Understood. And the current 25 configuration of having District One and Two function, pursuant 37 1 to the exclusion and the Amended IGA, continues to have a 2 constituent district and a developer district. So, it is, from 3 our perspective in reading the plan, is allowed under the plan 4 and is not inconsistent with the plan, because as development 5 occurs, you will still have a constituent district and a 6 developer district. You just won't have the vacant land, or 7 undeveloped land, that is solely owned by the developer, within 8 the constituent district. So, we don't -- from review of the 9 plan, again, because of the -- it is allowable to have 10 exclusions, and it was authorized to have District Two impose 11 its own mill levy. There would be no function for District Two 12 to impose its mill levy, if the properties were always intended 13 to overlap. 14 COMMISSIONER KIRKMEYER: And, in your characterization 15 of the exclusions that were allowable under the Consolidated 16 Plan, in 1999, was it because, essentially like what was stated 17 before, that as a property was bought, that it would be excluded 18 out of District Two and only still be in District One? Correct? 19 So that's what was anticipated in the Consolidated Plan. 20 MARYANN MCGEADY: Well, I would -- 21 COMMISSIONER KIRKMEYER: It wasn't like a division of 22 the Districts. 23 MARYANN MCGEADY: I, I would respectfully disagree, 24 because there's reference to allowable inclusions and 25 exclusions, which would suggest that there's more back -- moving 38 1 around of boundaries than just the exclusion from District Two 2 at the time when development went vertical in District One. 3 COMMISSIONER KIRKMEYER: But, the Consolidated Plan in 4 1999, had the idea about a distinct districts, District One and 5 District Two, but it also stated that they would be overlapping. 6 MARYANN MCGEADY: Right, understood. But, if -- if 7 the only intension allow -- if the only thing authorized under 8 the plan was exclusion of District Two property as property went 9 vertical, there would be no -- no need for a reference to 10 inclusions. 11 COMMISSIONER KIRKMEYER: Ok, but in your, um, on page 12 four of your brief that you gave us, you talk about how the 13 Board, at that time in 1999, recognized the need for flexibility 14 in the boundaries of the districts, and specifically provided 15 for inclusions or exclusions. But, at that time in 1999, when 16 we were talking about inclusion and exclusion, it was with 17 overlapping districts. It wasn't to have two separate 18 boundaries for the two districts. It was that they would share 19 the same boundary, and it was just because the difference 20 between one district imposing the mill levy and the other one 21 providing the services. 22 MARYANN MCGEADY: Ok, I -- 23 COMMISSIONER KIRKMEYER: Because I know that there was 24 a concern, I believe at that time, -- 25 MARYANN MCGEADY: Uh huh. 39 1 COMMISSIONER KIRKMEYER: -- and I didn't review the 2 record, so I'm only going off of memory. 3 4 5 you. 6 MARYANN MCGEADY: Ok. COMMISSIONER KIRKMEYER: So, that's why I'm asking MARYANN MCGEADY: Ok. 7 COMMISSIONER KIRKMEYER -- I believe there was a 8 concern at that time that we were creating a developer district 9 and the taxpayers wouldn't have any say in what happened in the 10 developer district, and that was a concern. And, I don't 11 believe that it was a -- Was it a five -O vote in 1999? 12 MARYANN MCGEADY: I did not represent REI in 1999. I 13 think -- or the District -- and I think Paul Cockrel was present 14 during that time, um, assuming, so he could probably address 15 what was discussed during that time. My review was of the 16 actual Service Plan and the words of that Service Plan, and what 17 it says. And when you read what the Service Plan says, it says 18 that inclusions and exclusions are allowed. It says that 19 District Two is allowed to have a mill levy, and it says that 20 the Districts can enter into agreements to figure out how to 21 coordinate the provision of services in the future. And so, 22 consistent with that, the exclusion was processed with REI. 23 Consistent with what the Service Plan says. 40 1 COMMISSIONER KIRKMEYER: But, consistent with what was 2 presented at that time, it was that the Districts would be 3 overlapping. 4 MARYANN MCGEADY: Again, I would say -- I think Paul 5 would need to address what was discussed -- 6 COMMISSIONER KIRKMEYER: Ok -- 7 MARYANN MCGEADY: -- in the hearings, or whatnot, at 8 that time. I don't have any idea of that. I just know what the 9 -- what the actual approved charter of the Service Plan says. 10 COMMISSIONER KIRKMEYER: Ok. Thank you. 11 CHAIR GARCIA: Thank you. Are there any other 12 questions? Thank you very much. 13 PAUL COCKREL: Mr. Chairman, I'm going to sit here, if 14 you don't mind. Uh, I can, uh, talk just as easily, and I can 15 also refer to the, uh, to the screen. Um, I will come back and 16 answer one question you had. Let me address Commissioner 17 Kirkmeyer's question, initially, on what was intended in 1999. 18 Um, my memory is a lot like yours. Uh, I have recollections, 19 but I don't agree with your statement that it wasn't anticipated 20 that we would have two separate districts, the configuration was 21 overlapping. One District actually would diminish in size; one 22 district would increase in size. The configuration of the 23 districts, in my opinion, is irrelevant, and has nothing to do 24 with the basic structure of the Service Plan and what was 25 intended under the Service Plan. And that is -- that was the 41 1 whole District to be responsible for incurring all new debt, uh, 2 for building new infrastructure, and not imposing and 3 operating the districts, and not imposing that responsibility 4 upon residents to protect their property tax base and to do a 5 number of other things, all of which have been accomplished 6 through this exclusion proceeding and the IGAs that were in 7 place, both before, and today. Uh, so, the configuration does 8 make a nice delineation of boundaries. It's now easy for you to 9 understand that you have the platted property and the unplatted 10 property. But, the question of size is really irrelevant to the 11 purpose of what was intended by the Service Plan, in my opinion. 12 And I think that as you go through that, and you understand what 13 we've done here, uh, we've actually added more protections, 14 rather than less protections, to ensure that residents aren't 15 overtaxed, don't do receive exactly the types of 16 infrastructure facilities which are anticipated under the 17 Service Plan, and continue to receive the services that have 18 been promised to them by various people over time. So, uh, but 19 I do agree with you, that this concept of -- clear boundary 20 lines -- wasn't present then. 21 But also like to address a couple of procedural issues 22 that have come up. You good folks are not judges; I don't think 23 any of you are judges anyway. You're -- the Board of County 24 Commissioners and you've been asked to hear this matter under 25 the statute. The statute specifically says you're -- you are to 42 1 consider whether this exclusion should be approved based upon 2 certain factors that set forth in the statute. The court, or 3 the statute, does not delegate to you any authority to make 4 legal decisions. On all of these procedural issues that are 5 raised by the appellants are really well outside your 6 jurisdiction. Whether it comes to the question of, uh -- of 7 whether the Directors -- the petition requirements meet the 8 statutory standards, whether the deposit requirements meet the 9 statutory standards, whether -- uh, there are constitutional 10 issues raised with respect to the Service Plan, or whether there 11 is some other legalistic issue here. You folks, I don't think, 12 have the background to make those decisions. I don't think the 13 statute gives you that authority. So, I would encourage you to 14 focus on the issue at hand, which is - should this exclusion be 15 approved, or disapproved. That's what the statute says you are 16 to do. 17 There are good answers to each of those. REI actually 18 did pay for the costs of the transcript from the very beginning. 19 Uh, they agreed to pay directly, rather than to hand the money 20 to the District and undertake that. They've paid for the cost 21 of publication; they've done a number of things. So, it's not 22 as though they haven't paid a -- money to the District to cover 23 costs. And, they have agreed, as MaryAnn indicated, in their 24 petition for exclusion, to cover all costs. 43 1 Uh, the same can be said with respect to the parcel. 2 The lawyers can argue all day long what the statute allows under 3 -- with respect to the amendment of the petition. With respect 4 to this election, uh, we have a phrase called rightness. No -- 5 if this issue were being argued in court, uh, all due respect, 6 Mr. Lyons' argument would be thrown out until there is actually 7 an issue at hand. There is not issue at hand. Until the 8 election is disapproved, Mr. Lyons can't argue that it may be 9 disapproved. I just -- it -- that's not the way we look at the 10 law in this country. So, there -- there is not example of, uh, 11 any kind, uh, at this point in time, of noncompliance on any of 12 these procedural issues. We weren't asked to submit to you, 13 questions of -- that have been approved by electors within the 14 District confirming the right of the District, uh, to enter into 15 these IGAs, but we could do so. It's irrelevant; it's not 16 before you. 17 Um, there are also standards under the Special 18 District Act, which -- which require anyone construing these 19 statutes, to apply them liberally. And, the courts have 20 consistently looked at these statutes, and they've said -- you 21 know -- everyone out there needs to, basically, have some 22 substantial compliance when they -- when they move through these 23 various proceedings. Uh, the Board of Directors of the District 24 are are -- have no political, or have not governmental 25 background like you do. You hear that -- you're in these 44 1 hearings all the time, so you do have an appreciation for a 2 quasi-judicial proceeding. Uh, we have residents sitting on the 3 Board that decided the exclusion. Those three people had, by 4 statute, had to listen to the information presented to them, and 5 based upon that information; they had to make a decision. The 6 appellants presented no evidence, at all, no hard facts to 7 controvert any of the evidence presented by REI. The Board had 8 made its determination based upon the evidence which you now 9 have on the record. And if you go through that carefully, other 10 than the legalistic arguments that Mr. Lyons has presented to 11 you, I don't think you'll find any substance for disapproving 12 the exclusion. That's what my Board did, that's what they were 13 charged to do by the statute. That's what you're charged to do. 14 Uh, you know, it's easy to throw red herrings into a proceeding 15 when you don't have much substance to argue. And, I think 16 that's why we see a lot of these precedent issues, or -- or 17 these procedural issues raise here. But, I'd like to go into 18 the issue that I'd like to address, and that's compliance with 19 the Service Plan; because that's what MaryAnn has delegated to 20 me, and I only have two and a half minutes left. Right? Thank 21 you, Mr. Chair. 22 There -- there are, basically, kind of four compliance 23 issues, as I see them. The first is the issue of exclusion, so 24 whether -- whether an exclusion can occur under the Service 25 Plan. First of all, when we talk about exclusions under the 45 1 statute, we typically refer to property totally being removed 2 from the boundaries of the district. Commissioner Kirkmeyer, I 3 think what the Service Plan says, effectively, is that these 4 districts are to be operated in a consolidated manner, and in -- 5 boundaries are irrelevant. It's not like we're taking a big 6 piece of the pie out, so that that property is no longer in the 7 district, and no longer has any -- any responsibility to pay 8 taxes or to be developed to -- to carry out the financial plan. 9 We're changing around internal boundaries within the pie. And, 10 the IGA preserves the requirement and the intent of the Service 11 Plan, that these districts be operated as one. And, and the 12 Service Plan is very clear; that the developer is responsible 13 for building new infrastructure, financing that infrastructure, 14 and carrying the tax load. Ninety percent of the property -- 15 that taxes the District derives -- are outside of the platted 16 area, the developed area of the District. The whole issue here 17 is really over control of the District's treasury and what 18 happens, and who controls that. That's, in reality, what's -- 19 what the argument is. There a lot of other arguments below the 20 surface that you're aware of, but, that's certainly the major 21 argument here. Um, the change in boundaries does not constitute 22 a material modification of the Service Plan, legalistically, 23 because the Service Plan specifically authorizes it. There are 24 no limitations. The Board of County Commissioners didn't impose 25 any limitations. The statute imposes no limitations; it 46 1 specifically says, "A change in boundaries is not a material 2 modification." Not whether it's big, little, or whatever. It's 3 just not a material modification. I've been practicing Special 4 District law for thirty years, and in that period of time, I 5 have never once heard, in any court case, in any county 6 commissioner proceeding, or any municipality, that a boundary 7 change constituted a material modification. There is no record 8 of that happening. You're being asked to set new law here; it 9 just doesn't exist. 10 CHAIR GARCIA: And is it your position that this is 11 solely a change in boundary, and that's it? 12 PAUL COCKREL: That's it. For purposes of compliance 13 with the Service Plan; that's correct. Let me go on to note 14 that an issue, which I think is the second part of that issue, 15 and that's, "What's the effect?" That's the comm -- that's the 16 question you asked, Mr. Chair. How does the balance of power 17 change? It doesn't change; it just doesn't change. The only 18 real change is that, now, instead of one taxing agency - there 19 are two taxing agencies. That's the only difference. The 20 amount of taxes are the -- that the District receives, are 21 absolutely the same. The tax rate, itself, is absolutely the 22 same. In fact, if you look through the list that, and maybe 23 Kristin you can put that up on the screen -- the changes in the 24 Service Plan. We actually built more protections in for the 25 residents of Beebe Draw under the Amended and Restated IGA. 47 1 Your Service Plan, that you approved, requires the District to 2 have the IGA. We've been operating under this for ten years, 3 and Mr. Lyons says it's illegal. Well, we've been illegal for 4 ten years. Mr. Lyons says that there's no document in place 5 that requires the developer to re -include property. There's not 6 document in place that requires the developer to exclude 7 property. There's no reason in the world why the developer 8 wouldn't re -include the property. There's no reason in the 9 world why this election won't be passed. And, if it doesn't, 10 they there are proceedings that can be followed. 11 12 13 CHAIR GARCIA: Um -- PAUL COCKREL: Yes, Sir? CHAIR GARCIA: Your time has come to an end; however, 14 I believe Commissioner Kirkmeyer has a quick question. 15 16 17 18 COMMISSIONER KIRKMEYER: Yah. PAUL COCKREL: I'm sorry if I exceeded my time. CHAIR GARCIA: No problem. COMMISSIONER KIRKMEYER: You made a comment that now 19 there are two taxing entities. So, essentially, the finance -- 20 has the Financing Plan been altered? 21 PAUL COCKREL: Not at all. The Financing Plan 22 recognized that tax dollars would flow from the forty mill levy, 23 into a pot, and that pot would be used to pay district -- 24 outstanding district bonds, with no more bonds being issued in 25 District One, contrary to what Mr. Lyons suggested earlier, 48 1 because we don't want the residents to be burdened with any -- 2 any more than this obligation to pay forty mills. That's it. 3 That's the extent of their obligation. District Two can use 4 that revenue stream, then, to go out and issue bonds, if it 5 needs to, to build these facilities. To date, they've been 6 using the revenue stream to cash fund facilities. In the 7 future, if development occurs, then they may have to finance, 8 and they'll rely upon that revenue stream. No one in District 9 One will have to pay more than forty mills, or have more debt 10 imposed upon their property, as long as you uphold this 11 exclusion. 12 COMMISSIONER KIRKMEYER: What about, though, the 13 provision of services and the operating? The thirty-two mills 14 that are associated with the operating in District One. So -- 15 PAUL COCKREL: Well, the eight mills -- 16 COMMISSIONER KIRKMEYER: So, the mill levy that's 17 addressed, or that would be anticipated in District Two, you 18 said, would be issued for bonds -- 19 PAUL COCKREL: Right. 20 COMMISSIONER KIRKMEYER: to complete the 21 infrastructure, or the improvements. But will it also be used 22 for the operating in District One? 23 PAUL COCKREL: Yes. Yah -- the IGA specifically says 24 that everyone gets to use these facilities, without 25 discrimination of the location of boundaries within the 49 1 District. Again, the Service Plan says this is supposed to be 2 operated as a consolidated district, and that's what we've done. 3 Look carefully at the IGA. There are three or four changes; the 4 changes enhance are enhancements. Things like, we create 5 this joint committee of District One and District Two. There 6 are a lot of people who worked out there. We had thirty-five, 7 forty people at the hearing. We had one person stand up at that 8 hearing and really say he kind of objects to it -- `cause he has 9 questions. He didn't present any evidence, but he kind of 10 objected to it. Everyone else went along with the decision of 11 the Board. 12 13 14 CHAIR GARCIA: Thank you very much. PAUL COCKREL: Thank you. CHAIR GARCIA: Rebuttal? 15 RICHARD LYONS: I, uh, jotted down some notes as they, 16 uh, as the two attorneys spoke, and I'll try to cover them in a 17 disjointed fashion. I, I think that, um, the, uh, first thing I 18 want to mention, and -- in rebuttal, is the hostile course of 19 conduct and quote - the response to friction - as mentioned in 20 the brief and then the presentation today. Um, that's referring 21 to the exercise by the constituents of their constitutional and 22 statutory rights. Um, and so, I don't think that the exercise 23 of their constitutional and statutory rights is justification, 24 uh, for labeling it as a hostile course of conduct in response 25 to friction. Um, I think that the, uh, statement, uh, that no 50 1 facts were presented to support a denial, um, and that the 2 District Number One's Board made the determination that it was 3 in the best interest of the County, and that you're bound by 4 that; I think that is, uh, not right. Um, you are the elected 5 officials of Weld County. You make the determination, 6 independently, of what is in the best interest of Weld County; 7 not the District Board Number One. Their decision is 8 appealable, and it is appealed to you for you to make your 9 independent determination as to what is, in fact, in the best 10 interest of Weld County. Um, I think that the statement that 11 the structure is irrelevant, that Mr. Cockrel made, I think is, 12 uh, is extremely misleading. As he indicated, instead of having 13 one taxing entity for the, uh, debt, now, we have two. And 14 that's precisely the problem. And as I raised in my argument, 15 that's not in the best interest of the constituency district, 16 because you now have taxation without representation. District 17 Number Two can issue new debt and tell District Number One, by 18 this IGA, exactly what mill levy it has to levy on its citizens, 19 that is its residents, to pay the debt for the infrastructures, 20 um, the new infrastructure that may be -- may be built. So, 21 that's precisely why it's not in the best interest of District 22 Number One, nor in the best interest of Weld County. Uh, 23 regarding, um, Mr. Cockrel's claim that this has never before, 24 uh, has any, uh -- county or district court or court of appeals 25 decision ever held, uh, regarding, uh, a change in boundaries to 51 1 be, um, not in compliance with the Service Plan. Uh, that's 2 because there is a vast difference between a boundary 3 adjustment, uh, as contemplated by the statute, and a massive 4 restructuring of the district. And I think that you can look 5 to, and, Paul says you're not judges and you shouldn't look at 6 the law, but I think you should. If you look at the district 7 statutes, under the exclusions, there is some guidance, there is 8 some guidance in Section 32-1-502, and that's in the exclusion 9 when a municipality excludes property from a district, uh, the 10 statute says wait a minute. If, after the exclusion, if more 11 than fifty percent of the district is taken, then there has to 12 be a determination as to whether the district should continue in 13 existence. So, the legislature has already told you that, if 14 you take fifty percent of the district, that's pretty bad, and 15 here, I think we're at seventy-five percent of the district is 16 being removed. Uh, so I do think you need to take a look at 17 that statutory guidance and, and, in making these 18 determinations, as to whether it is in the best interest of the 19 district, or in the best interest of Weld County. And, I thank 20 you very much for your attention here today. 21 CHAIR GARCIA: I have a couple of questions for you. 22 Uh, you heard discussion regarding material modification. 23 RICHARD LYONS: Uh huh. 24 CHAIC GARCIA: -- uh, from Mr. Cockrel. And that, uh, 25 I would assume from your comments regarding the, uh, taxation by 52 1 the District Two. Does that calculate into the -- your argument 2 regarding material modification? 3 RICHARD LYONS: Yes. Um, and let me make sure I -- 4 you understand. The material modification issue is part and 5 parcel of whether it is in the best interests of either the 6 District or the County. And, yes, by completely removing and 7 disenfranchising the constituents in District Number One, um, I 8 believe that that is in fact a material modification of, uh, the 9 Service Plan. And the question is, uh, what -- you know, if you 10 look at the statutory scheme, as I indicated in my opening 11 remarks, the County has general oversight over special 12 districts. And, if you allow -- this is bad precedent -- if you 13 allow those districts to evade, um, the requirements of the 14 Service Plan by, by, the schemes of exclusion and these 15 elaborate IGAs that are dependent upon some questionable legal 16 principles, uh, I think we're frustrating the intent of County 17 oversight. 18 CHAIR GARCIA: Now, uh, if we grant that is a -- 19 change, a big change. We use those un-legal words of big 20 change. But, is it material when we look at 32-1-207. I'm 21 citing from Mr. Cockrel's brief. Uh, that, uh, a material 22 modification is limited to four circumstances, and in his brief 23 he mentions decreased level of service, uh, decrease in 24 financial ability to discharge debt, addition to type of 25 services provided by district or, uh, decrease in existing or 53 1 projected need for organized services in the area. And, uh, my 2 understanding of the argument of the Appellees, is that, uh, 3 those four items have been met, um, -- continue to be met, or 4 would be met by an IGA, uh, the Amended IGA. Would you respond 5 to that? 6 RICHARD LYONS: Well, first of all, I believe that the 7 brief has not deliberately, but accidentally misled you in the 8 statement of the statute. If you look at the sentence before 9 that statute, it is not limited to just those four. In fact, 10 the statute says, "including, but not limited to." So, those 11 are just four of examples that the legislature thought of to 12 help you guide what is a material modification. But, they are 13 not the only ones. You are not limited to those four. It 14 specifically says, "including, but not limited to." And, so, I 15 think that when it says, um, changes in the boundary, um, are 16 not material modifications, the including, but not limited to, 17 you -- it is well within your ability to determine that a 18 massive restructuring and stripping more than seventy-five 19 percent of a district is not a boundary adjustment, because of 20 the language, "including, but not limited to." 21 CHAIR GARCIA: Thank you. Any other questions? 22 COMMISSIONER KIRKMEYER: Yah. I guess I would just 23 like to hear your rebuttal on the fact that it really shouldn't 24 be coming before the Board of County Commissioners. His 25 comments about the, um, petition not being correct and your -- 54 1 who's paying for it, and that kind of thing, and the exclusion 2 and the titling and the deed, and all that kind of stuff. 3 RICHARD LYONS: Well, I think, I think that, um, the 4 role of the County is more focused on the, uh, Service Plan 5 aspects of it - the material modifications. But, I believe that 6 the County still has the overall ability to oversight, to make 7 sure that the lower body, in this instance, the Special District 8 Board of Directors, has complied with the procedural 9 requirements of the statute. Uh, if you don't have that, then 10 you would allow any district to process an exclusion without 11 conformity to the statutes, and then require you to make a 12 determination, an independent judgment on those factors on, 13 basically, an illegal or an improper exclusion process. Uh, 14 that's like saying, well the district didn't hold a hearing, but 15 its ok, uh, because your only limited to looking at those 16 factors. I think that, uh, you have a basic duty to take a look 17 at the record to make sure that the basic requirements of the 18 statute have been adhered to. 19 CHAIR GARCIA: Are there any further questions? Thank 20 you very much. Thank you everyone for, uh, your input, your 21 hard work on these brief; they were well written, and arguments 22 well presented. Thank you. At this time we'll bring the matter 23 back to the Board and, uh, discussion, and uh, the possible - 24 uh, several possibilities would exist. One option would be that 25 we have received two proposed resolutions, uh, one from each 55 1 side, indicating a desired outcome that we can review and 2 consider in taking action today. Another option would be, if, 3 uh, if uh, members of the Board need additional time to review 4 and consider the arguments that they've heard, that we could 5 take it under advisement, and uh, potentially bring this back at 6 our Monday morning nine o'clock hearing, which is regularly 7 scheduled to take action. So I'll bring it back to the Board to 8 discuss our options, or discuss the matter at hand. 9 COMMISSIONER KIRKMEYER: Well, in all fairness, there 10 is like a lot of information here -- M COMMISSIONER RADEMACHER: A lot of information. 12 COMMISSIONER KIRKMEYER: -- to really try and -- I 13 mean I know I've been reading for the last week or so, uh, all 14 that information that we've been provided, and there's been some 15 information provided here tonight, and there's some statutory 16 references that I guess I would like to have the time to really 17 look at and study. Um, unlike you, I'm not an attorney, but I 18 can read law, and I can practice with the best of them, so uh. 19 So anyway -- 20 CHAIR GARCIA: There's a reason we call it practice. 21 COMMISSIONER KIRKMEYER: -- Exactly! So I guess, I 22 would like the additional time so that I can go back and refer 23 to some of those - look at some of those, um, statutory 24 references that were made, um, and look at how they go with the 25 -- each of the appellant's briefs and the petitioner's brief. 56 i But, that would be my preference, but um, whatever the rest of 2 the Board -- 3 CHAIR GARCIA: Commissioner Rademacher. 4 COMMISSIONER RADEMACHER: And I would almost have to 5 agree on that. I would like to have more time just to digest on 6 both of the attorneys' comments, and go over and back, see a 7 transcript, and go through them again. Come back Monday. 8 CHAIR GARCIA: Commissioner Long. 9 COMMISSIONER LONG: And I like refer to what our 10 charge is and what it isn't. I want to be real clear, so that 11 we're making a prudent decision under our jurisdiction and 12 authority level, and not go out of our scope. And really boil 13 it down so we're making a prudent decision on behalf of the 14 people of Weld County as their elected officials, and not being 15 erroneous or practicing outside of our scope, just as we tell 16 our employee, you know, we don't do our jobs outside of our 17 scope of practice or authority. So, I'd like some help with 18 that, to be able to -- 19 20 21 CHAIR GARCIA: Since that was a point -- COMMISSIONER LONG: -- take the facts -- CHAIR GARCIA: -- that was brought up. 22 COMMISSIONER LONG: -- Yah, and you know anything is 23 always challengeable at another level. I'd like to be able to 24 do this in a prudent fashion so that it's -- you can challenge 57 1 something even if, even if it was right and you don't like it, 2 but, but still, let's make it right. 3 COMMISSIONER KIRKMEYER: I agree. 4 COMMISSIONER RADEMACHER: Yah. 5 BRUCE BARKER: Mr. Chairman, the, um, I might caution 6 that if you do put it -- go under advisement and come back on 7 Monday, your discussions regarding this between the four of you 8 should be on the record. So, you shouldn't have any discussions 9 until Monday when you go on the record and do that. 10 COMMISSIONER KIRKMEYER: And that would also go for any 11 discussions that we would have with the attorney? 12 BRUCE BARKER: I think so. 13 CHAIR GARCIA: So, any time period, if -- if we 14 continue the matter to Monday, just for the record, would be 15 self review of the matter and not consultation. Commissioner? 16 COMMISSIONER LONG: Well, just for my benefit then, as 17 a time element and I respect and honor all of those obligations 18 that we have and understand them, but Bruce, what is our scope? 19 Let me know up front, so as I'm digesting this 20 COMMISSIONER RADEMAHCER: I agree. 21 COMMISSIONER LONG: -- I'm looking at this, um, 22 appropriately, and not finding out, after the fact, that I've 23 been looking at this from the wrong angle. 24 BRUCE BARKER: Sure. I think earlier I had sent each 25 of you a copy of the State statute, which deals with this, and 58 1 it's going to be in that, uh, Section 32-1-501, subparagraph 2 two, uh, b, and really, I think that it -- I'll just go through 3 this. Roman numeral number one says any petition that is denied 4 or resolution that is finally adopted may be appealed to the 5 Board of County Commissioners of the County in which the special 6 districts petition for organization was filed for review of the 7 Board's decision. The appeal shall be taken no later than 8 thirty days after the decision. Um, just to start off. We did 9 receive that within thirty days, and the statutory time frame 10 was correct. The review part really is in Roman numeral two, 11 where it says upon appeal, the board shall consider the factors 12 set forth in subsection three of this section, and shall make a 13 determination whether to exclude the properties mentioned in the 14 petition or resolution, based upon the record developed at the 15 hearing before the special district board. 16 You have, and I think, um, two weeks ago when I sent 17 all of you the briefs, I'd sent you the transcript that are 18 uh, already been made of the proceedings, uh, both in October 19 and then in November, um, so you have those. Again, its going 20 back, and you're making a determination. There was some 21 argument back and forth as to, in the briefs at least, as to 22 whether, uh, the scope is de-novo, or it's based on an arbitrary 23 and capricious standard. You didn't hear arguments on that very 24 much today, but what the statute says is make a determination 25 whether to exclude the properties mentioned in the petition or 59 1 resolution, based upon the record. It doesn't say anything 2 about arbitrary and capricious; it doesn't say anything about 3 the standard of review, other than make a determination. Um, 4 so, I think that if you look at that, you also look at the next 5 part, which says that the court makes the same type of 6 determination. Given the fact that it doesn't say go back and 7 figure out if they were arbitrary and capricious, I mean it -- 8 to me it's saying you're making the determination, just like the 9 District Board did, as to whether or not the property should be 10 excluded. Um, that's again though -- that's based upon the 11 record that you've been sent; based upon the appeals, the briefs 12 that you have before you, the notice of appeal that was received 13 - it was the original notice sent by Mr. Lyons, and then 14 finally, the arguments that you heard today. 15 16 Attorney? 17 CHAIR GARCIA: Any other questions for County COMMISSIONER KIRKMEYER: Sure. I have a couple. So, 18 to make a determination about the exclusion, do we then have to 19 make a determination, or should we be making a determination 20 about the petition that went before the Board of Directors in 21 District One, as to whether or not it was a valid petition? 22 BRUCE BARKER: I think the, uh, the question -- the 23 argument was made as to whether or not the petition was valid. 24 I think there were two arguments. One was, was it valid, and 25 the second one about the deposit, um, that was made. Um, I 60 1 guess I would go back to - on the petition itself, I'd have to 2 agree with Mr. Cockrel in the sense that the review of that was 3 that the Board, uh, the District Board made that determination; 4 that in fact they had the ability to exclude the property for 5 which they didn't have signatures. And so, if you look at the 6 statute, which talks about in the first part of 32-1-501, and it 7 was pointed out in the briefs, that the exclusion could be made 8 of either all, or a part of, that which is petitioned for 9 exclusion. To me, it makes -- it is consistent with what the 10 Board of Directors did to say, Ok - we didn't get signatures on 11 this part of the that property, but we're limiting it to what we 12 did get, um, property signatures on, and the petition was proper 13 as to that. That's consistent with the first part of the 14 statute. As to the issue regarding the bond, um, I'd just say 15 that we -- you have that decision to make in various aspects of 16 your job, um, as a County Commissioner on various times when 17 you're required to take a bond or some sort of collateral for a 18 hearing. You have the ability to go ahead and say hey, we're 19 satisfied; we don't need that bond because we're assured that 20 payment is going to be made of all -- all of the costs. I don't 21 think that that precludes, um, or is a technical reason to say, 22 well, you didn't get the bond in, so we're going to say you 23 didn't do this right. Um, I think that the District Board made 24 that call, and they had the ability to say whether the bond was 25 necessary or not; the collateral was necessary or not. So, I 61 1 guess on those two issues, I think that those were decided by 2 the District Board and, I think you should take that into 3 consideration; that, in fact, they thought that the petition was 4 sufficient, they thought that the bond not having the bond 5 there was sufficient too. 6 COMMISSIONER KIRKMEYER: So, in essence you're saying 7 that isn't appealable to the Board of County Commissioners? 8 BRUCE BARKER: I don't think -- I think the thing is 9 that it's not, in the sense that that decision was made by them, 10 and I think that it was within their exclusive jurisdiction to I1 make that determination; because I think that's something that 12 they need to make that determination before moving forward. 13 They did -- they did the exclusion, that's what you got on 14 appeal today. And, again, you're determination - it doesn't say 15 that you figure out if the petition was correctly done. What it 16 says is, go back to those five factors and see if it fits within 17 those and that's -- both sides, I think very well argued that 18 today. 19 COMMISSIONER KIRKMEYER: Ok. And can we look at the 20 record from 1999 and the Consolidated Plan from 1999? 21 BRUCE BARKER: I think the problem is, that if you do 22 that -- if you go back to, um, -- let me address that this way. 23 I think in the record that's before you, you have the, uh, 24 Service Plan; it's a part of the record. And so, um, what you 25 approved back then is actually in the record. Um, if you're 62 I thinking that you need to go back and review other things that 2 were outside of what's here, that's a problem. Because this 3 says that you do it upon the record that was before the District 4 Board, but they did have that Service Plan. 5 COMMISSIONER KIRKMEYER: Ok. 6 CHAIR GARCIA: Any other questions? Ok, I'll 7 entertain a motion. 8 COMMISSIONER KIRKMEYER: Would the proper motion be to 9 continue this until Monday, which is February -- what day are we 10 on? 11 ESTHER GESICK: 23rd. 12 COMMISSIONER RADEMACHER: 23rd. 13 CHAIR GARCIA: 23rd. 14 COMMISSIONER KIRKMEYER: And at 9:00? I would move to 15 continue this matter until Monday, February 23rd, at 9:00. I6 COMMISSIONER RADEMACHER: I'll second it. 17 CHAIR GARCIA: Motion to, uh, continue this matter, 18 'til, uh, Monday the 23rd, at 9:00 hearing time. And, uh, by 19 Commissioner Kirkmeyer. Second by Commissioner Rademacher. And 20 uh, again for the record; all discussions on this -- or that 21 there will not be, uh, discussions amongst the Board or, uh, 22 with Counsel regarding it. Um, all opportunities to review the 23 record in this matter will be private. Any more -- any further 24 discussion? Hearing none; all those in favor signify by saying 25 Aye. 63 1 COMMISSIONERS UNISON: Aye. 2 CHAIR GARCIA: Those opposed, say Nay. Motion carries 3 unanimously. Thank you all for, uh, -- 4 UNIDENTIFIED SPEAKER: Thank you for your attention. 5 CHAIR GARCIA: -- being present. We, uh, welcome you 6 to come on, uh, Monday morning at 9:00. Thank you. 7 8 [End of discussion/action on Appeal Hearing to Consider Appeal 9 of Decision of the Board of Directors of Beebe Draw Farms 10 Metropolitan District No. 1 Regarding the Granting of a Petition 11 for Exclusion of Certain Property (2,266.118 Acres Owned by REI, 12 LLC) ] 64 I CERTIFICATE 2 3 STATE OF COLORADO) 4 ) ss 5 COUNTY OF WELD ) 6 7 I, Esther E. Gesick, Deputy Clerk to the Board and 8 notary public within and for the State of Colorado, certify the 9 foregoing transcript of the CD recorded proceedings, In Re: 10 discussion/action on Appeal Hearing to Consider Appeal of 11 Decision of the Board of Directors of Beebe Draw Farms 12 Metropolitan District No. 1 Regarding the Granting of a Petition 13 for Exclusion of Certain Property (2,266.118 Acres Owned by REI, 14 LLC), before the Weld County Board of County Commissioners, 15 February 18, 2009, and as further set forth on page one. The 16 transcription, dependent upon recording clarity, is true/ 17 accurate with special exceptions(s) of any or all precise 18 identification of speakers, and/or correct spelling or any 19 given/spoken proper name or acronym. 20 Dated this 4th day of March, 2009. 21 22 23 Esther E. Gesick, Notary 24 25 MAv Commission Expires Sept 11 2009 ORIGINAL ( ) CERTIFIED COPY ()() 65 1 INVOICE 2 (Recording/Transcribing) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 WELD COUNTY CLERK TO THE BOARD c/o Esther Gesick, Deputy Clerk to the Board 915 10th Street, Greeley, Colorado 80631 (970)356-4000 X4226 (970)352-0240 (fax) egesick@co.weld.co.us Date: March 4, 2009 To: McGeady Sisneros, P.C. 450 East 17th Avenue, Suite 400 Denver, Colorado 80203-1214 RE: Transcript of 02/18/2009 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) 7.75 hours staff time @ $60.00 per hour - 64 pgs. @4.00 - - $465.00 - - $256.00 TOTAL, due on receipt, please - - $721.00 Transcript Time Log Esther E. Gesick, Deputy Clerk to the Board 915 10th Street, Greeley, Colorado 80631 (970)356-4000 X4226 / gesick@co.weld.co.us February 18, 2009 Hearing 03/03/09 11:30 - 1:00 = 1.50 hrs 2:30 - 5:00 = 2.50 hrs 03/04/09 9:00 - 11:00 = 12:00- 1:10 = 4:10 - 4:45 = February 23. 2009 Hearing 2.00 hrs 1.25 hrs 0.50 hrs 7.75 hrs X $60.00 = $465.00 + 64 pages X $4.00 = $256.00 $721.00 03/05/09 9:30 - 12:30 = 3.00 hrs TOTAL BILL: Deposit BALANCE DUE: 3.00 hrs X $60.00 = $180.00 + 25pages X $4.00 = $100.00 $280.00 $1,001.00 - 450.00 $ 551.00 McGEADY SISNEROS March 2, 2009 VIA FEDERAL EXPRESS Esther Gesick Deputy Clerk to the Board 915 10th Street Greeley, CO 80631 McGeady Sisneros P.C. 450 E. I Avenue, Suite 400 Denver, Colorado 80203-1214 303.592.4380 tel 303.592.4385 fax www.mcgeadysisneros.com Re: Deposit for Transcripts of Appeal of Beebe Draw Farms Metropolitan District No. 1 Dear Ms. Gesick: Enclosed is a check made out to the Weld County Clerk to the Board in the amount of $450.00 for the deposit required to obtain transcripts of the hearings held in front of the Board of County Commissioners on February 18, 2009 at 10:00 a.m. and February 23, 2009 at 10:00 a.m. regarding the Appeal of the decision of the Beebe Draw Farms Metropolitan District No. 1. We would appreciate it if you could prepare the transcripts as soon as possible. Please feel free to contact me at the phone number above if you require any additional information to prepare the transcripts. Thank you in advance for your time and attention to this matter. Very truly yours, MCGEADY SISNEROS, P.C. Kristin J. Bow Enclosure °NOTES cc 00Pri CD O in O ADDRESS °LU 4107 x Hm00 ZmHo o o w J 0 w RECEIPT DATE 3-3-9 No.190657 RECEIVED FROM 41424 £On,a.ell% Pd. .141_24 Elnattd, Cb/OD 0622 629 FOR' ../Ac.efruoety2i Ad as (&A, 44,4 Ja i C ACCOUNT HOW PAID AMT. OF ACCOUNT CASH AMT. PAID CHECK .V31) BALANCE DUE MONEY ORDER BY( -1-t- ©2001 REDIFdVl. @)81808 Re: Transcript Page 1 of 3 Esther Gesick From: Esther Gesick Sent: Tuesday, March 03, 2009 9:46 AM To: 'Kristin Bowers' Cc: Bruce Barker; Julia Dybdahl; MaryAnn McGeady Subject: RE: Transcript Kristin, I left a return voice mail with Julia this morning and said that once I wrap up one small project this morning I should be able to dive into the transcripts. I completed the Minutes and Bruce provided the Resolution, so once they are signed by the Board I will forward copies to you all to review in the interim. As to the request for completed transcripts by Friday, I will give it my best, but I may require through the weekend to be sent overnight on Monday. I'll keep you posted on my progress throughout the week. If you need anything further, please let me know. Thanks! Esther E. Gesick Deputy Clerk to the Board 915 10th Street Greeley, CO 80631 (970)356-4000 X4226 (970)352-0242 (fax) From: Kristin Bowers (mailto:kbowers@mcgeadysisneros.com] Sent: Monday, March 02, 2009 7:02 PM To: Esther Gesick Cc: Bruce Barker; Julia Dybdahl; MaryAnn McGeady Subject: Re: Transcript Thanks, Esther. We sent a check in the amount of $450 to your attention via federal express. You should receive it tomorrow. I would like to discuss with you expediating this order. We are in a time crunch and need them as soon as possible. Please let me know how we can accomplish this. Thanks in advance for you help. The information contained in this communication is confidential, may constitute inside information, is intended only for the use of the addressee, and is the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail and destroy this communication and all copies thereof, including all attachments. Original Message From: Esther Gesick <egesick@co.weld.co.us> To: Kristin Bowers Cc: Bruce Barker <bbarker@co.weld.co.us> Sent: Mon Mar 02 17:00:05 2009 Subject: FW: Transcript Hi Kristin, The cost for transcripts is as follows: 3/5/2009 Re: Transcript Page 2 of 3 APPENDIX 5-E, Weld County Code RATES FOR CLERK TO THE BOARD TRANSCRIPTS FROM CDs: $60.00/hour for time spent on the transcription, plus $4.00 per page. (Provides two (2) certified copies of transcript to requestor.) Minimum charge of $60.00, with a deposit of three (3) times the clock time of the hearing to be paid in advance, with balance payable prior to receipt of transcript. Transcripts will be completed as staff time is available. Fee nonrefundable. No deadline will be assured. Based on 2.5 hours of hearing time X 3 X 60.00 = $450.00 Deposit due Please let me know if you wish to proceed based on the quoted amount. If so, please forward a check payable to "Weld County Clerk to the Board" and I will proceed with preparing the transcript. Thanks! Esther E. Gesick Deputy Clerk to the Board 915 10th Street Greeley, CO 80631 (970)356-4000 X4226 (970)352-0242 (fax) Original Message From: Bruce Barker Sent: Thursday, February 26, 2009 4:59 PM To: Esther Gesick Subject: FW: Transcript Ideas? Original Message From: Kristin Bowers[mailto:kbowers@mcgeadysisneros.com] Sent: Thursday, February 26, 2009 4:38 PM To: Bruce Barker Cc: MaryAnn McGeady; Anna Mercurio Subject: Transcript Hi Bruce: I was wondering what the process is for ordering copies of the transcripts from the BOCC hearing held on Wednesday, February 18 and Monday, February 23, 2009? Thanks in advance! Kristin J. Bowers McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203-1214 (303) 592-4380 phone (303) 592-4385 fax kbowers@mcgeadysisneros.com The information contained in this communication is confidential, may constitute inside information, is intended only for the use of the addressee, and is the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail and destroy this communication and all copies thereof, including all 3/5/2009 Re: Transcript Page 3 of 3 attachments. The information contained in this communication is confidential, may constitute inside information, is intended only for the use of the addressee, and is the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error, please notify us immediately by return e-mail and destroy this communication and all copies thereof, including all attachments. 3/5/2009 Hello