HomeMy WebLinkAbout20090408.tiffEsther Gesick
From:
Sent:
To:
Subject:
Attachments:
Bruce Barker
Monday, December 22, 2008 11:52 AM
Esther Gesick
Appeal of Exclusion Decision -- Beebe Draw Metropolitan District No. 1
Beebe Draw - Notice of Appeal.pdf; CRS 32-1-501(5)(b)(l).doc
Beebe Draw - CRS
Notice of Appeal....-501(5)(b)(I).doc (4
Need to set time on the agenda for a hearing at 10 a.m., February 18, 2009, to consider
the appeal of a November 3, 2008, decision by the Board of Directors of the Beebe Draw
Metropolitan District No. 1 to exclude 2,266.118 acres of property from the District. I
believe the appeal was filed with the Board of County Commissioners on November 24, 2008.
See the attached Notice of Appeal. The appeal is pursuant to CRS Section
32-1-501(5)(b)(I). A copy of that section is attached. Also, below is a schedule and
some procedures that I worked out with the attorneys on both sides today:
Objection to jurisdiction (possible that none of the Appellants
filed a written objection with the District Board) must be filed with
the Board of County Commissioners (BOCC) by 3 p.m., 12/24/08. If such
an objection is filed with the BOCC, then Dick will have until 12/31/08 to
respond. The BOCC will consider that issue at its Board meeting on
1/5/09 at 9 a.m.
Record of the District Board hearing must be filed with the BOCC
by 5 p.m., 1/5/09.
Appellant's brief shall be filed with the BOCC by 5 p.m.,
1/16/09.
Appellees' response briefs shall be filed with the BOCC by 5
p.m., 1/23/09.
Appellant's reply brief shall be due by 5 p.m., 2/3/09.
The BOCC hearing on the matter shall be 2/18/09 at 10
a
This appeal is not de novo, but, rather, is on the record of the
proceeding before the District Board. No evidence outside that record
shall be considered. No public testimony shall be heard by the Board.
Let me know if February 18th is acceptable.
Thanks!
Bruce.
1
2009-0408
St 0001
Weld County District Court
9019Th Avenue
P.O. Box 2038
Greeley, CO 80632
Phone: 970-351-7300
IN THE MATTER OF BEEBE DRAW
METROPOLITAN DISTRICT NO. 1
Court Use Only
Richard N. Lyons, II
Adele L. Reester
Bernard Lyons Gaddis & Kahn, P.C.
Attorneys for Petitioners
P.O. Box 978, 515 Kimbark
Longmont, CO 80502-0978
Telephone: (303) 776-9900
Attorney Reg. Number: 09591
Attorney Reg. Number: 28549
Case No. 86 CV 636
Division Courtroom
NOTICE OF APPEAL FILED WITH WELD COUNTY BOARD OF COUNTY COMMISSIONERS
Petitioners Michael Welch, Rod Gantenbien, Angie Powell and Jeff Hare, ("Petitioners"), by
their attorneys, Bernard Lyons Gaddis & Kahn, P.C., hereby notify the Court as follows:
1. The Board of Directors of Beebe Draw Metropolitan District No. 1 ("Metro District') on
November 3, 2008 adopted a resolution ordering the exclusion of 2,266.118 acres of
land as petitioned by REI Limited Liability Company.
2. On November 24, 2008 pursuant to § 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. (See attached appeal, Exhibit A)
3. Such appeal was served at the same time by mail upon legal counsel for the District,
Paul Cockrel (See attached cover letter with Receipt stamp, Exhibit B.)
DATED: December ( 2008.
BERNARD LYONS GADDIS & KAHN, PC
By . di, �-
Richard N. Lyons,/.#4-4-
#
q CERTIFICATE OF SERVICE
Yt
This is to certify that on the / day of December, 2008, a true and correct copy of the
foregoing NOTICE OF APPEAL FILED WITH WELD COUNTY BOARD OF COMMISSIONERS was
served via LexisNexis File and Serve upon:
Paul R. Cockrel, Esq.
Collins Cockrel and Cole, LLC
390 Union Boulevard, Suite 400
Denver, CO 80228-1556
EGE„,„,Ec„oc SI206.,b.MEOE,.EL.OOC
And by U.S. Mail addressed to:
Bruce Barker, Esq.
Weld County Attorney
P.O. Box 758
Greeley, CO 80632
,„e.e,E:12AY- , NLYE 2
BEFORE THE BDARD OF COUNTY COMMISSIONERS OF WELD COUNTY
APPEAL OF DECISION OF THE BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOUTAN
DISTRICT NO. 1 REGARDING THE GRANTING OF A PETITION FOR EXCLUSION OF CERTAIN
PROPERTY
Pursuant to §32.1.501(5) ((b) (I), C.R.S., Jeff Hare, Mike Welch, Rod. Gantenbein and Angie Powell,
as taxpaying residents of the Beebe Draw Metropolitan District No. 1, by their attorneys, Bernard
Lyons Caddis & Kahn, P.C., hereby appeal the November 3, 2008, Order of Exclusion entered by the
Board of Directors of Beebe Draw Farms Metropolitan District No. 1, and in support of the Appeal
state the following:
I. PROCEEDINGS BEFORE THE BEEBE DRAW METROPOLITAN DISTRICT NO.1
On or approximately October 15, 2008, Mike Welch, Rod Gantenbein, and Angie Powell
submitted petitions to recall three of the existing board members of the Beebe Draw Farms
Metropolitan District No. 1. As of this filing, these petitions have been deemed to be sufficient by
the Designated Election Official, Sharon Mau, Collins Cockrel & Cole, but a protest has been filed
alleging noncompliance with applicable state statutes.
On October 20, 2008 and continued at a meeting on November 3, the Board of Directors of
Beebe Draw Farms Metropolitan District No. 1 ("District No. 1") adopted a resolution ordering the
exclusion of 2,266 acres of land as petitioned by REI limited Liability Company, a Wyoming
Limited Liability Company (the "Petitioner") as property owner. The Board entered its exclusion
order on November 3 which granted the petition. The exclusion order removes all unplatted and
undeveloped property from District No. 1 and leaves only the platted First Filing of approximately
188 lots and 55 existing homes.
At these meetings, the Board of Directors also approved a new amended intergovernmental
agreement (the %A°) between District No. 1 and Beebe Draw Farms Metropolitan District No. 2
(District No. 2) which was necessitated by this massive exclusion of property.
II. APPELLANTS ARE INTERESTED PARTIES.
The appellants are electors and taxpaying property owners and residents of District No. 1, were
provided notice by publication of such exclusion hearing pursuant to § 32-1-501 (2), C.R.S., and
Appellants Mike Welch, Rod Gantenbein, end Angie Powell were present at the'hearing and Angie
Powell and Mike Welch presented their objections, and those of other resident taxpayers, in
writing to the Board of Directors. The Appellants are also interested parties under §32-1-207(3)
(a), C.R.S. and § 32-1-204(1), C.R.S.
1
mare
I — _
Ill. GROUNDS FOR APPEAL.
A. The Exclusion Is a Material Modification of the Consolidated Service Plan and Therefore
Requires Service Plan Amendment Pursuant to § 32-1-207, C.RS.
A material modification to a service plan requires prior county approval or formal notice to
the county of the intended action. In this Instance, neither requirement occurred.
This massive exclusion is a material modification to the Consolidated Service Plan adopted in
May 1999 ("Service Plan") because It materially changes the boundaries of District No. 1
and post -exclusion, the boundaries of the two districts are no longer overlapping but are
distinctly separate. District No. 1 will contain approximately 1,164 acres and District No. 2
will now contain approximately 2,964 acres. This is contrary to the Plan which calls for
overlapping districts with all property lying Initially lying In kpjh districts as explained as
follows:
Page 10 of the Plan Provides:
"District No. 2 will contain approximately 3,408 acres of platted and unpiatted
property owned by the Company and located completely within the boundaries
of District No. 1, excluding the property In the first phase of development in
Filing No. 1"
Pages 9 -10 of the Plan provides:
'District No. i contains approximately 4,120 acres.
Furthermore, there Is a material change to the manner in which property will be excluded
as set forth In the Service Plan as follows:
Page 11 of the Plan Provides:
In accordance with the procedures set forth in the District Act, property within
each new phase of the Development will be excluded from District No. Z when
such property has been platted, and lot sales have been commenced by the
Company or other developers."
Page 13 of the Plan Provides:
'As development occurs within District No. 2, improved property will be excluded
from the District, and the total assessed valuation of property within the District
will decrease?
Page'14 of the Plan Provides:
"The responsibility for payment of a portion of the costsof public facilities will
be shifted incrementally to all property within District No. 1 as development
occurs, and the total assessed valuation of property within the District
Increases?
2
The proposed scheme of immediate exclusion from District No. 1 of ALL remaining
undeveloped property will now require that such excluded property be re -included into
District No. 1 when the undeveloped properly Is plated. This Is provided for on page 23,
Section 4.4 of the newly signed IGA which states:
"As contemplated In the Service Plan, District No. 1 shall process and approve
the Inclusion of platted property that Is excluded from District No. 2 following
infrastructure development."
Clearly, the structure provided for In the Service Plan has now been materially modified
because future re -inclusion of the property into District No. 1 on a piecemeal basis will
require the petitioning for inclusion by the property owner (not District No. 2), a hearing
conducted by the Board of Directors of District No. 1, and a determination as to whether
such inclusion Is in the best interests of District No. 1 under the provisions of §32-1-401,
C.R.S. The IGA purports to bind the future board members to vote to approve such inclusion
petition, but under Colorado law, a board can not bind the exercise of discretion of future
members of that board.
The Service Plan contemplates that all property within the Development is contained in
District No. 1 and District No. 1 Imposes a mill levy. The Service Plan also contemplates that
District No, 2 can arrange for alternate financing structures. However, such alternate
financing structures refer to temporary loans based on pledged revenues, not an imposition
of an additional mill levy by District No, 2. While the Service Plan does not explicitly prohibit
the establishment of any type of mill levy by District No. 2, the Initial TABOR elections in
1999 for District No. 1 were not conducted nor authorized by voters of District No. 2, and
thus It is clear that the intent of the 1999 Service Plan Amendment was not to authorize or
impose a mill levy within District No. 2
The exclusion of this large tract of land is In violation of the Service Plan which contemplates
that all property remain in both districts until the lots are platted and marketed, at which
tie they are removed from District No. 1 through the normal exclusion process which does
not require Plan amendment, either by statute or under the terms of the Plan. The distinction
between the current Service Plan providing for future exclusion upon development and the
new IGA binding the future boards to agree to exclude is that the former is written Into the
Service Plan which operates as a "charter" or "constitution" of the districts and its provisions
are binding on the districts when formed; whereas, inserting provisions Into a new IGA that
obligates future boards to exercise discretion in a certain fashion in the future is contrary to
Colorado law. Such a provision would be tantamount to the current Board of County
Commissioners attempting to bind the discretion of future Commissioners regarding zoning
decisions in the future.
Such a limitation on future board discretion Is in violation of the legal maxim first recognized
in City of Denver v. Hubbard, 17 Colo. App. 346, 68 P. 993 (1902) that a governmental body
can not surrender its legislative powers. Stated differently, one board can not bind future
boards with respect to the discretionary exercise of legislative powers. See, Keeling v. City of
Grand Junction, 689 P.2d 679, 680 (Colo. App. 1984), (setting of salaries is a legislative
function that can not be restrained by contract), and Bennett Bear Creek Water District v.
Denver, 928 P.2d 1254, 1269-1270, (Colo. 1996) (contracts of a governmental entity
cannot divest its legislative powers); and see, also, Pear -Mack Enterprises Co. v. City and
County of Denver, 568 P,2d 468 (Colo. 1977) and Colowyo Coal Co. v. City of Colorado
3
Springs, 879 P.2d 438 (Colo. App. 1994) explaining that proprietary functions are exempt
from rule of non -surrender of legislative or police powers).
Here, the removal of all legislative discretion in establishing the appropriate mill levy would
be a violation of this legal concept.
Sec. 32-1-207(2), C-R.S., explains that service plan modification is required "only with regard
to changes of a basic or essential nature." The changes here are both of a basic and an
essential nature because the massive exclusion removes the property from District No. 1 and
thus exposes District No. 1 to the discretion of the developer as to whether it will or will not
petition for Inclusion into District No. 1. The developer/land owner Is not a party to the new
nix and therefore It must petition to be Included in the future. Under the current Plan, the
property Iles in both districts and the developer would exclude the property from District No.
2 upon sale of the property to a homebuyer. Absent Service Plan amendment and
modification to address this Issue, there is nothing that legally encumbers the excluded
property to force the future developer/owners to re -Include their properties into District No. 1
upon development/sale.
B. The Petition Was Defective Because Upon Acceptance for Setting a Hearing and Notice To
The Public, The Petition Was Not Signed By All Of The Property Owners As Required By §
32-1-501, C.RS.
The petition submitted by the petitioner for exclusion Included land that was not owned by
REI. At the October 20 hearing on the exclusion a resident was asked if the board or the
board's counsel had review the legal description of the property to verify that REI was indeed
the property owner of the land being petitioned.
At the November 3 meeting where the amended IGA was adopted, the board acknowledged
that legal description of land on the original petition was defective. The citizens present
objected to the vote on the basis that the petition was defective because It was not signed by
all of the property owners required by 32-1-501, C.R.S. The board approved the defective
petition by partially granting the exclusion as to that portion owned by REI.
However, although a proper non -defective petition (one that Is signed by the owners of ALL
property sought to be excluded) can be granted "In whole or in part" by the Board, (see, §32-
1-501(4) (a) (I), C.R.S.), a defective petition that does not meet the requirements of §32-1-
501(1) because it was not signed by all of the purported property owners must be withdrawn
and re -submitted. The Board lacks the authority and jurisdiction to grant an exclusion, in
whole or in part, of an Invalidly filed petition, and can only deny a petition (in whole or in part)
as to that property which was validly petitioned for exclusion. If the petition is overly broad,
then It falls to meet the requirement that It contain the signatures and assent of all of the
'fee owners thereof.' Because the petition was not signed by the "fee owners thereof' the
Board can not correct the deficiency of an Invalidly flied petition.
C. The District Board Erred in its Finding that the Exclusion Was In the Best Interests of Metro
District No.1.
Under the structure established by the Plan, all property remained in both districts until the
property was sold and then It was moved out of District No. 2. Thus, all Improvements were
technically being built within the same District— District No. 1. However, now, by removing
all of the undeveloped property from District No. 1, the new scheme established by the new
4
IGA will require the residents of District No. 1 to tax themselves for improvements that will be
built in District No. 2 not In their district, with only the promise of District No. 2 that the
landowner (not District No. 2) will hopefully petition for re4nclusion.
The petitioner failed to present evidence that such exclusion was in the best Interests of
District No. 1. The petitioner stated on the record that 'we think it [exclusion] facilitates the
financing, construction, operation, and maintenance of the capital improvements set forth in
the Service Plan In the most efficient way? However, no details or explanation were provided
other than this statement of opinion and not fact. Nevertheless, the Board echoed this
statement in Its findings that "excluslon...facilitate the financing, construction, operation
and maintenance of the Improvements set forth in the Service Plan?
To the contrary, the exclusion is ncg in the best interests of District No. 1 because In order to
conform to the Service Plan's requirements, a new convoluted IGA relationship is required
whereby District No. 2:
will have to conduct 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; and
iI. will require District No. 1 to be bound by, and impose by virtue of the
new IGA, the same mill levy that District No. 2 will Impose (assuming
passage of 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 the mill levy should be levied within District No. 1; and
ill. will require such uniform mill levy imposed within District No. 1 to be.
utilized in part to pay the debt or other financial obligations of another
legal entity 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 any future Indebtedness (thus District No. 1 will be essentially
paying for needless legal proceedings); and
iv. will require District No. l's future Board of Directors to disregard its
fiduciary duties to the residents of District No. 1, and blindly include any
property which is developed, even though such Inclusion may, in the
future, not be in the best interests of District No. 1 at that time; and
v. such new IGA constitutes 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; and
vi. there is a basic premise.that, 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; and
5
vii. thus 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
viii. there is no legal obligation that binds the property owners of the
excluded property that is now only included within District No. 2 to sign
any petition for re -inclusion into District No. 1, thus reducing this
scheme to the voluntary actions of future owners of the developable
land.
Clearly, this exclusion is NOT in the best Interests of District No. 1 or its taxpayers and residents.
D. The District Board Erred in its Finding that the Exclusion was in the Best Interests of the
Property to be Excluded.
It is in the best interests of the property to remain in District No. 1 which is obligated to provide
the services and incur the indebtedness to provide for the financing of all future improvements.
The current unitary structure of having all property in both districts for purposes of Incurring debt
and for constructing infrastructure Is embedded in the current Plan. It is not in the best interests
of this property to remove it from the protection, benefits, and obligations Imposed by that Plan
and subject the property to mere third party beneficiary status pursuant to a revised IGA to which
the property owner is not a signatory party.
The current Plan ensures that the property will obtain development infrastructure. The removal
from District No. land the replacement of the rights and benefits of the Plan with a contract Is
not in the property's best Interests because in the event that the IGA is deemed void, in whole or
in part, or is rescinded by a future District No. 1 board of directors, the property is left without
any assurance of development.
E. The District Board Erred in its Finding that the Exclusion Was In the Best Interests of Weld
County.
The petitioner failed to present sufficient and clear evidence that such conclusion was In the
best Interest of County. The petitioner stated that exclusion was in the County's best interests
because "It implements the plan that they approved, not onlythe Service Pian but the approval
of Filing 1 development plan and also, In the future, the approval of Filing 2 development plan."
The exclusion is not In the best interests of Weld County because the exclusion was made
contrary to the proposed procedures for development and exclusion from District No. 2 as set
forth in the Plan. Any mass exclusion which materially changes the contemplated procedures set
forth in the Plan Is not in the best interests of Weld County because the County does not have on
file any record of the material modifications and thus without knowledge of this important
structural change, it is unable to adequately monitor development and the operations of special
districts within Weld County.
Furthermore, the existing Service Plan assures orderly development and a sharing of costs of
improvements that are Installed for the benefit of all. With this massive exclusion, the residents
of District No. 1 wilt be literally payingfor improvements to property lying only within District No. 2
with no legally binding obligation on the property owner to Include its property into District No 1,
thus presenting the prospect of requiring the existing development to pay for the new growth and
development.
6
Finally, the exclusion may put the Districts at financial risk, placing an undue burden on the
County. If the TABOR election in 2009 is NOT passed, the total revenue for the Districts could be
reduced by as much as 90%. Given that the Districts have not established any maintenance
reserves, the Districts may not have the ability to adequately maintain Its infrastructure,
including Its roads and water facilities thus forcing the Districts to ask the County to bear that
burden.
F. The District Board Erred in Its Finding Regarding An Economically Feasible Alternative.
Section 32-1-501(3) (g), C.R.S., requires that the Board of Directors determine "whether an
economically feasible alternative service may be available." On this point, the Board found that
the exclusion will lead to more economically feasible alternative services which "will be provided
to the Final Exclusion Property by District No. 2 pursuant to the IGA in the form of Improvements
being constructed which will directly serve the Final Exclusion Property."
However, It is undeniable that an economically feasible alternative is not legally available until
and unless there is a successful election in November, 2009, that will allow the levying of a tax
of at least 40 mills within District No. 2, and that the voters approve the Issuance of debt or
other financing to pay for new Infrastructure. Although the Board assumes that these elections
will be successful because the property is owned by one entity which has, or will, transfer
fractional interests In the property to qualify persons to vote, this alternative is still totally
dependent upon a contingency over which the District has no legal control. Thus this alternative
Is not feasible because such feasibility is totally dependent upon a non -legally binding or
controllable event.
The developer/property owner can not assure that the TABOR election will be successful
because to bind Its employees (who are or may become qualified electors of District No. 2) and
any non -employee electors would be criminal violations of §§1-13-720, 1-13-721, and/or 1-13-
719, C.R.S.
IV. §32-1-501(5)(b)(li), C.R.S., Authorizes the Board of County Commissioners To Make an
Independent Determination Whether to Exclude the Property Based Upon the Record
Developed At the Heating.
This Board may make an independent determination whether to exclude the property based
upon the record before it by applying the same criteria/factors set forth in §32-1-501(3),C.R.S.
Those factors are:
A. Whether the exclusion is in the best interests of the orooertv. Here, the exclusion is not
in the best interests of the property to be excluded because the property can only issue
debt or incur financial obligations after such Indebtedness is approved by the electorate
within District No. 2 and yet there Is no legal assurance that the required TABOR election
in November, 2009 will be successful. Absent a Plan modification, there is no legal
requirement that the property will be re -included into District No. 1 in the future.
Exclusion does not facilitate the financing, construction, operation or maintenance of the
Improvements.
B. Whether the exclusion is in the best Interests of the excluding district. The exclusion is
not In the best Interests of District No. 1 for the reasons stated In Section IIIL, above,
7
which are incorporated herein. Exclusion does not facilitate the financing, construction,
operation or maintenance of the improvements.
C. Whether the exclusion is in the best interests of the county. The exclusion is not in the
best interests of Weld County. The exclusion violates the previously approved Service
Plan, disrupts the long range planning for the area as to the orderly development, and
removes the certainty as to which district is performing which function and for what
constituency. Allowing the exclusion to occur without modification of the Plan weakens
the statutory role of the County in Its vital oversight of special district formation and
execution of service plans. Exclusion does not facilitate the financing, construction,
operation or maintenance of the improvements.
D. 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 valuation of District No. 1 when the excluded property
is develop using various financing Instruments included bonded indebtedness.
E. 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 the services.
F. Whether the district Is able to provide services at a reasonable cost _compare with the
• cost that would be imposed by other entitles to provide similar services,_ District No. 1
does not provide services.
a The effect of denying the petition on employment and other economic conditions in the
soecial district and surrounding area. There would be no adverse effects if the petition
were denied.
H. The economic impact on the region and on the special district. surrounding area. and
state as a whole If the petit'�is denied. There would be no negative impacts ff the
petition is denied.
I. Whether an economically feasible alternative service may be available. There is an
economically feasible alternative: leave the property within District No. 1 to fully
effectuate the purposes and intent of the existing Plan.
1. The additional cost to be levied on other property within the special district if the
exclusion is granted. As explained above, theproperties in District No. 1 will now be
bearing the costs of improvements that will be installed in District No. 2—a different
district, whereas (and as contemplated by the Plan) before exclusion the improvements
would be constructed in both overlapping districts because the undeveloped properties
lay in both.
V. RELIEF REQUESTED.
For these reasons. Appellants respectfully request that the Board of Commissioners for Weld
County:
a. direct the Board of Directors of Beebe Draw Metro District No. 1 to file a certified record
of proceedings with the County on or before December 31, 2008;
8
b. after a review of the record, deny this exclusion; and
c. find that such a massive exclusion Is a material modification of the Service Plan; and
tl. require that the Board of Directors of both Beebe Draw Metropolitan District No. 1 and
District No. 2 seek a Service Plan amendment for this material modification Involving
such a massive exclusion.
Dated: November Zo 2008
BERNARD LYONS GADDIS & KAHN, PC
BY
Richard N. Lyons, II q(Idrney Reg. No. 09591
515 Kimbark, PO Box 978
Longmont, CO 80502-0978
303-776-9900
Email: rlyons@blgiaw.com
Attorneys for Appellants
CERTIFICATE OF MAIUNG
This is to certify that on the 1() day of November, 2008 a true and correct copy of the foregoing
was deposited in the U.S. Mail, first-class postage prepaid, addressed to:
Mr. Paul R. Cockrel
Collins Cockrel & Cole, P.C.
390 Union Boulevard, Ste. 400
Denver, CO 80228-1556
Attorneys for Bebee Draw Metropolitan Districts
4inL I4?'
9
Richard N. Lyons, II
Jeffrey J. Kahn
John W. Gaddis
Bradley A. Hall
Steven P. Jeffers
Anton V. Dworak
Adele L. Reester
Daniel F. Bernard
Senior Counsel
Bernard Lyons Gaddis Si. Kahn
A Professional Corporation ( Attorneys and Counselors
November 20, 2008
Weld County Commissioners
915 Tenth Street
P. 0. Box 758
Greeley CO 80632
Re: Appeal - Beebe Draw Farms Metropolitan District No. 1 - Exclusion
Dear Commissioners:
Eve I. Canfield
Scott E. Holwick
Matthew Machado
Madoline Wallace -Gross
Chad A. Kupper
Catherine A. Tallerico
Special Counsel
Enclosed for filing are the original and one copy of the Appeal of the Decision of the Board of
Directors of Beebe Draw Farms Metropolitan District No. 1. Retarding the Granting of Petition for
Exclusion of Certain Property.
Please date stamp the copy with the date it was received, and return the copy to me in the enclosed
business reply envelope. Thank you for your attention to this matter.
Very truly yours,
BE D LYO S GADDIS & KAHN, PC
B
Enclosures
Richard N. Lyons, II
rlvons@blglaw.com
cc: Paul Cockrel Esq., w/ enclosure
Bruce Barker, Esq., w/enclosure
Esther E. Gesick, Deputy Clerk to the Board w/enclosure
- .uw}fl\..
NOV 2 4 2008
/ •
MOT515 Kimbark Street • Second Floor • P.O. Box 978 • Longmont CO 80502-0978 $
Phone: 303-776-9900 • Fax: 303-413-1003 • www.blglaw.com 6
§ 32-1-501. Exclusion of property by fee owners or board --procedure
(1) The boundaries of a special district, except health service districts, may be altered by
the exclusion of real property by the fee owner or owners of one hundred percent of any
real property situate in the special district filing with the board a petition requesting that
such real property of the fee owner or owners be excluded and taken from the special
district. The petition shall set forth a legal description of the property, shall state that
assent to the exclusion of the property from the special district is given by the fee owner
or owners thereof, and shall be acknowledged by the fee owner or owners in the same
manner as required for conveyance of land. The petition shall be accompanied by a
deposit of money sufficient to pay all costs of the exclusion proceedings.
(1.5)(a) In addition to the procedure specified in subsection (1) of this section, the board,
through adoption of a resolution, may alter the boundaries of a fire protection district
through the exclusion of real property from the district if the property to be excluded will
be provided with the same service by another fire protection district or by a county fire
improvement district and the board or governing body of that district has agreed by
resolution to include the property into the district immediately after the effective date of
the exclusion order.
(b)(I) Not more than forty-five days nor less than thirty days prior to a meeting of the
board to consider final adoption of a resolution proposing property to be excluded, the
secretary of the fire protection district shall send letter notification to the fee owner or
owners of one hundred percent of all proposed real property to be excluded from the
district as listed on the records of the county assessor on the date requested.
(II) The letter notification shall indicate that it is a notice of a meeting required to be held
pursuant to subsection (2) of this section concerning the exclusion of the property from
the district, shall indicate the date, time, and location of the meeting, and shall contain
both a reference to the fire protection district or county fire improvement district
proposed for inclusion and the current mill levy of the district, if any.
(III) The mailing of the letter notification to all addresses or post office box addresses
within the area proposed to be excluded from the district shall constitute a good -faith
effort to comply with this section, and failure to so notify all fee owners shall not provide
grounds for a challenge to the meeting being held.
(2) The board shall hear the petition or resolution at a public meeting after publication of
notice of the filing of the petition or preliminary adoption of the resolution, the place,
time, and date of the meeting, the names and addresses of the petitioners, if applicable,
a general description of the area proposed for exclusion, and notice that all persons
interested shall appear at the designated time and place and show cause in writing why
the petition should not be granted or the resolution should not be finally adopted. The
board may continue the hearing to a subsequent meeting. There shall be no withdrawal
from a petition after publication of notice by the board without the consent of the board.
The failure of any person in the existing special district to file a written objection shall be
taken as an assent on his or her part to the exclusion of the area described in the notice.
(3) The board shall take into consideration and make a finding regarding all of the
following factors when determining whether to grant or deny the petition or to finally
adopt the resolution or any portion thereof:
(a) The best interests of all of the following:
(I) The property to be excluded;
(II) The special district from which the exclusion is proposed;
(III) The county or counties in which the special district is located;
(b) The relative cost and benefit to the property to be excluded from the provision of the
special district's services;
(c) The ability of the special district to provide economical and sufficient service to both
the property to be excluded and all of the properties within the special district's
boundaries;
(d) Whether the special district is able to provide services at a reasonable cost compared
with the cost that would be imposed by other entities in the surrounding area to provide
similar services in the surrounding area or by the fire protection district or county fire
improvement district that has agreed to include the property to be excluded from the
special district;
(e) The effect of denying the petition on employment and other economic conditions in
the special district and surrounding area;
(f) The economic impact on the region and on the special district, surrounding area, and
state as a whole if the petition is denied or the resolution is finally adopted;
(g) Whether an economically feasible alternative service may be available; and
(h) The additional cost to be levied on other property within the special district if the
exclusion is granted.
(4)(a)(I) Except as provided in subparagraph (II) of this paragraph (a) and if the board,
after considering all of the factors set forth in subsection (3) of this section, determines
that the property described in the petition or resolution or some portion thereof should be
excluded from the special district, it shall order that the petition be granted or that the
resolution be finally adopted, in whole or in part.
(II)(A) If the property to be excluded from the special district will be served by a special
district not yet organized, the board shall not order that the petition be granted or that
the resolution be finally adopted until the special district has been organized pursuant to
part 3 of this article.
(B) If the property to be excluded from the special district will be served by a fire
protection district or county fire improvement district as provided in subsection (1.5) of
this section, the board shall not order that the petition be granted or that the resolution
be finally adopted until the fire protection district or county fire improvement district has
adopted a resolution agreeing to include the property in the district immediately after the
effective date of the exclusion order and has filed the resolution with the court.
(C) Notwithstanding any other provision of this article to the contrary, the property to be
excluded may be included within the boundaries of the proposed special district.
(b) Upon granting the petition or finally adopting the resolution, the board shall file a
certified copy of the order of the board excluding the property from the district with the
clerk of the court, and, except as provided in paragraph (c) of this subsection (4), the
court shall order the property to be excluded from the special district and, if applicable,
included into the fire protection district or county fire improvement district that has
previously agreed to include the property as provided in subsection (1.5) of this section.
(c)(I) If the property to be excluded from the special district will be served by a fire
protection district or county fire improvement district that has previously agreed to
include the property as provided in subsection (1.5) of this section and that has a higher
mill levy than the special district and after the certified copy of the order of the board
excluding the property from the district is filed with the clerk of the court, the court shall
direct the question of excluding the area from the special district and including it in the
fire protection district or county fire improvement district with a higher mill levy to the
eligible electors of the area sought to be excluded. The court shall order the secretary to
give published notice, as provided in part 2 of article 5 of title 1, C.R.S., of the time and
place of the election and of the question to be submitted, together with a summary of
any conditions attached to the proposed exclusion. The election shall be held within the
area sought to be excluded and shall be held and conducted, and the results thereof
determined, in the manner provided in title 1, C.R.S. The ballot shall be prepared by the
designated election official and shall contain the following words:
"Shall the following described area be excluded from the district, which has
a current mill levy of , and become a part of the district, which
has a current mill levy of , and upon the following conditions, if any?
(Insert general description of area)
(Insert accurate summary of conditions)
For exclusion from district and inclusion
in district
Against exclusion from district
(II) If a majority of the votes cast at the election pursuant to subparagraph (I) of this
paragraph (c) are in favor of exclusion to become a part of another district and the court
determines the election was held in accordance with title 1, C.R.S., the court shall enter
an order with any conditions so prescribed excluding the area from the special district
and including it in the fire protection district or county fire improvement district with a
higher mill levy. The validity of the exclusion to become a part of another district may not
be questioned directly or indirectly in any suit, action, or proceeding, except as provided
in article 11 of title 1, C.R.S.
(d) The order of exclusion entered pursuant to paragraph (b) or (c) of this subsection (4)
shall recite in the findings a description of any bonded indebtedness in existence
immediately preceding the effective date of the order for which the excluded property is
liable and the date that the bonded indebtedness is then scheduled to be retired. After
July 1, 1993, failure of the order for exclusion to recite the existence and scheduled
retirement date of the indebtedness, when due to error or omission by the special
district, shall not constitute grounds for correction of the omission of a levy on the
excluded property from the assessment roll pursuant to section 39-5-125, C.R.S.
(5)(a) If the board, after considering all of the factors set forth in subsection (3) of this
section, determines that the property described in the petition or resolution should not be
excluded from the special district, it shall order that the petition be denied or that the
resolution be rescinded.
(b)(I) Any petition that is denied or resolution that is finally adopted may be appealed to
the board of county commissioners of the county in which the special district's petition for
organization was filed for review of the board's decision. The appeal shall be taken no
later than thirty days after the decision.
(II) Upon appeal, the board shall consider the factors set forth in subsection (3) of this
section and shall make a determination whether to exclude the properties mentioned in
the petition or resolution based on the record developed at the hearing before the special
district board.
(c)(I) Any decision of the board of county commissioners may be appealed for review to
the district court of the county which has jurisdiction of the special district pursuant to
section 32-1-303 within thirty days of such board's decision.
(II) On appeal, the court shall review the record developed at the hearing before the
special district board and, after considering all of the factors set forth in subsection (3) of
this section, shall make a determination whether to exclude the properties mentioned in
the petition or resolution.
Hello