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Home My WebLink About20090403.tiffRESOLUTION RE: ACTION OF THE BOARD CONCERNING 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 WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on November 24, 2008, pursuant to Section 32-1-501(5)(b)(I), C.R.S., an Appeal of Decision of the Board of Directors of the Beebe Draw Metropolitan District No.1 Regarding the Granting of a Petition for Exclusion of Certain Property was marked as received and filed with the Weld County Board of Commissioners by Appellants Michael Welch, Rod Gantenbien, Angie Powell, and Jeff Hare, by and through their attorneys, Bernard Lyons Gaddis and Kahn, P.C., and WHEREAS, said appeal was of a resolution adopted by the Board of Directors of Beebe Draw Metropolitan District No.1, on November 3, 2008, ordering the exclusion of 2,266.118 acres of land from said District as petitioned by REI Limited Liability Company, and WHEREAS, the Board has reviewed the Appeal of Decision, the Record of Proceedings filed with the Board by the District, including transcripts of the October 20, and November 3, 2008, meetings of the District's Board of Directors, the District's Consolidated Service Plan of 1999, and all briefs and pleadings submitted by the Appellants and by Appellees Beebe Draw Farms Metropolitan District No. 1 and REI Limited Liability Company, and WHEREAS, the matter came before the Board of Weld County Commissioners on February 18, 2009, for oral arguments by Appellants and Appellees, and the Board considered such arguments with respect to the issues. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that, pursuant to Section 32-1-501(5)(b)(I), C.R.S., the relief set forth in the Appeal of Decision of the Board of Directors of the Beebe Draw Metropolitan District No.1 Regarding the Granting of a Petition for Exclusion of Certain Property, be, and hereby is, granted, and the exclusion is denied, as more fully set forth below and for the following reasons: 1. The District's Board erred in processing and granting the Petition for Exclusion because such Petition did not meet the legal requirements of Section 32-1- 501(1), C.R.S., because: 1.1 at the time of submittal to the District, the Petition was not signed by 100 percent of the fee owners of the property; and 1.2 even if the Petition was properly corrected by subsequent deletion of the property not owned by the Petitioner, the Petition was not accompanied by a deposit of money sufficient to pay "all of the costs of the exclusion proceedings." 2009-0403 SD0001 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 PAGE 2 2. In the alternative, if the Petition was legally sufficient to constitute a valid petition and could be processed by the District's Board, the Board of County Commissioners hereby makes its independent determination that the Petition should be denied and that the property should not be excluded based upon the Record before it and by applying the criteria and factors set forth in Section 32-1- 501(3), C.R.S., as follows: 2.1 Whether the exclusion is in the best interests of the property. Here, the exclusion is not in the best interests of the property to be excluded because District No. 2 can only issue debt or incur financial obligations after such obligations/indebtedness are approved by the electorate within District No. 2 and yet, although the Petitioner controls the property, there is no legal assurance that the required TABOR election, in November, 2009, will be successful. Absent a Service Plan modification, there is no legal requirement that the property will be re -included into District No. 1 in the future, and the Intergovernmental Agreement (IGA) between District No. 1 and District No 2 can not legally require this or future property owners to re -petition for inclusion of the excluded property into District No. 1. Furthermore, exclusion does not facilitate the financing, construction, operation, or maintenance of the improvements. 2.2 Whether the exclusion is in the best interests of the excluding district. The exclusion is not in the best interests of District No. 1 because in order to conform to the Service Plan's requirements, a new IGA relationship is required between District No. 1 and District No. 2, with the following adverse effects and consequences: For the relationship between the two districts that is contemplated by the new IGA, the exclusion must rely upon District No. 2 successfully conducting a TABOR election in the fall of 2009, to increase taxes, to approve the incurrence of debt, or approve a multi -year financial obligation to provide funds to build new facilities for the benefit of property that now lies exclusively within District No. 2. ii. This new IGA will require District No. 1 to be bound by and impose whatever mill levy that District No. 2 will impose (assuming passage of a ballot issue allowing such tax increase at the November 2009 TABOR election); thus removing all discretion from the Board of Directors of District No. 1 as to what mill levy should be levied within District No. 1. Because under the new IGA District No. 2 will mandate the mill levy to be imposed by District No. 1, the constituents of District No. 1 are denied any meaningful input on the extent of their taxes or services. hi. The IGA will require that the uniform mill levy imposed within District No. 1 to be utilized, in part, to pay the debt or other 2009-0403 SD0001 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 PAGE 3 financial obligations of another legal entity (District No. 2) for improvements that are to be constructed in District No. 2, not District No. 1; and such mill levy has to reflect the increased costs of a TABOR election within District No. 2 to authorize the new mill levy and the costs and expenses incurred for any future indebtedness. Thus, District No. 1 and its taxed property owners will essentially be paying for the cost and expenses of these new legal proceedings which are required by this exclusion. iv. The IGA requires District No. 1's future Board of Directors to disregard both its fiduciary duties to the residents of District No. 1 and its statutory obligations under Section 32-1-401, C.R.S., to determine if such future inclusions are in the best interests of District No. 1, and to automatically include any property which is presented for inclusion in the future, even though such inclusion may not be in the best interests of District No. 1 at that time. v. Such new IGA may legally constitute a multi -year financial obligation on the part of District No. 1 which is in contravention of Article X, Section 20 of the Colorado Constitution (known as TABOR) absent voter approval because it pledges the full faith and credit of District No. 1 and obligates it to pay the future debt service of District No. 2, whatever that debt may be. vi. Because the property has now been removed from District No. 1, the taxpayers of District No. 1 will be paying for public improvements built in District No. 2. vii. District No. 1 taxpayers must pay for improvements to be installed in District No. 2 without any voice, input, or representation on the board of directors for District No. 2 and thus are totally disenfranchised from these important decisions. viii. There is no legal obligation contained in the Record that binds the current (or future) property owners of the excluded property to sign any petition for re -inclusion into District No. 1. This new IGA replaces the existing legal requirements of the Service Plan which provide that the property would not be excluded from District No. 2 until development/sale to residents, and that the property would remain in District No. 1. The exclusion and new IGA are based entirely upon a mere assumption that the future property owners will voluntarily re -petition for inclusion into District No. 1 when the land is developed. 2.3 Whether the exclusion is in the best interest of Weld County. The exclusion is not in the best interest of Weld County. This massive exclusion is not in compliance with the previously approved Service Plan, 2009-0403 SD0001 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 PAGE 4 disrupts the long range planning for the area as to the orderly development of facilities and housing, and removes the certainty as to which district is performing which function and for what constituency, thus weakening accountability to the property owners, tax payers, and residents who receive the benefit of the improvements. Service Plans can not be circumvented by IGAs. Allowing this exclusion to occur without a modification of the Service Plan weakens the statutory role of the County in its vital oversight of special district formation and execution of approved service plans. Although boundary adjustments are permissible under Section 32-1-207(2), C.R.S., this massive exclusion of over 2,000 acres is not a "boundary adjustment" but, rather, a major restructuring of the two districts and their legal relationship. Such a restructuring should be submitted for service plan modification pursuant to Section 32-1-207(2), C.R.S. 2.4 The relative cost and benefit to the property to be excluded from the provision of the Special District's services. There is no financial benefit for the property to be excluded because it will not benefit from the assessed valuation of District No. 1 when the excluded property is developed using various financing instruments, including bonded indebtedness. 2.5 The ability of the excluding district to provide economical and sufficient service to both the excluded property and all of the properties within the district's boundaries. This factor is not applicable because District No. 1 does not provide services. 2.6 Whether the district is able to provide services at a reasonable cost, compared with the cost that would be imposed by other entities to provide similar services. District No. 1 does not provide services. 2.7 The effect of denying the petition on employment and other economic conditions in the special district and surrounding area. There would be no adverse effects on employment and other economic conditions in District No. 1 if the petition were denied. 2.8 The economic impact on the region and on the special district, surrounding area, and state as a whole if the petition is denied. There would be no negative impacts if the petition is denied. 2.9 Whether an economically feasible alternative service may be available. It is economically feasible for the property to remain in District No. 1 and for the property to receive services from District No. 2 while remaining in District 1. 2.10 The additional cost to be levied on other property within the special district if the exclusion is granted. Because of the exclusion, the 2009-0403 SD0001 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 PAGE 5 residential properties in District No. 1 will now bear the costs of improvements that will be installed in District No. 2--a different district -- whereas prior to both the exclusion and the new IGA, the improvements would be constructed in both overlapping districts because the undeveloped properties lay in both (as contemplated by the Service Plan) and only the sold residential lots would be excluded from District No. 2. 3. This exclusion is not a boundary adjustment as contemplated by Section 32-1-207(2), C.R.S., and therefore such exclusion constitutes a material modification of the Service Plan. Accordingly, no such exclusion of this property should be granted until Districts Nos. 1 and 2 seek and obtain modification of the Service Plan pursuant to the provisions of Section 32-1-207, C.R.S. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 18th day of February, A.D., 2009. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: William F. Garcia, Chair Weld County Clerk to the Board Douglas Rademacher, Pro-Tem BY: Deputy Clerk to the Board Sean P. Conway APPROVED AS TO FORM: Barbara Kirkmeyer County Attorney David E. Long Date of signature: 2009-0403 SD0001 Esther Gesick From: Sent: To: Subject: Attachments: 20090211_R _WIdC oBeebeResol.do... Just came in. Bruce Barker Friday, February 13, 2009 1:57 PM Esther Gesick FW: Proposed order/Resolution concerning Bebee Draw Farm Metro District 1 20090211 R- WIdCoBeebeResol.doc Original Message From: Richard N. Lyons [mailto:RLyons@blglaw.com] Sent: Friday, February 13, 2009 1:56 PM To: Bruce Barker Cc: Paul Cockrel; MaryAnn McGeady Subject: Proposed order/Resolution concerning Bebee Draw Farm Metro District 1 Richard N. Lyons BERNARD LYONS GADDIS & KAHN, PC P.O. Box 978 Longmont, CO 80502-0978 303-776-9900; Facsimile 303-413-1003 rlyons@blglaw.com www.blglaw.com CONFIDENTIALITY STATEMENT: THIS E-MAIL MESSAGE AND ANY ACCOMPANYING DOCUMENTS CONTAIN INFORMATION WHICH IS ATTORNEY PRIVILEGED, CONFIDENTIAL AND INTENDED ONLY FOR THE USE OF THE ABOVE -NAMED RECIPIENT. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, PRINTING OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS MESSAGE IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE OR RETURN THE E-MAIL MESSAGE TO US. THANK YOU. 1 Hello