HomeMy WebLinkAbout20151028.tiff E Davis Richard Kirk Mueller
Graham & DECEIVE® 303 892 7456
kirk.mueller@dgslaw.com
L A W Stubbsu.P JUN 19 2015
COMM SS COOK
June 4, 2015
Cara McKeller
Docket Assistant
Board of Assessment Appeals
Colorado Department of Local Affairs
1313 Sherman Street, Room 315
Denver, CO 80203
Re: Petition to State Board of Assessment Appeals Re Noble Energy, Inc. v. Weld County
Dear Ms. McKeller,
Pursuant to your email dated May 29, 2015 directing that Noble Energy, Inc. should list on its
above-referenced petition the value assigned to the subject property and Noble's estimate of
the value even though the appeal does not involve a challenge to valuations or assessments, I
enclose herewith a revised petition listing the information you requested.
You also indicated that the "letter of decision" from the Weld County Board of County
Commissioners was not complete and that "there must be a decision" for each schedule
number. Unfortunately, Weld County did not provide a letter or the decisions you described.
Rather, the Commissioners signed a "Resolution" (mailed on May 5, 2015 per the attached
postmarked envelope and submitted with Noble's original petition) stating that because Noble
did not challenge the valuations or assessments of its property, the petition did not meet the
"statutory requirements for consideration for abatement or refund." Accordingly, Weld County
deemed it "necessary to dismiss" the petition rather than deny it. I do not represent Weld
County and cannot explain the distinction between a dismissal and a denial. In any event,
Assistant County Attorney Brad Yatabe verified, in response to an e-mail from me, that he did
not believe any letter was prepared because the Commissioners decided to dismiss the
petition.
Thank you for your attention to this matter. Please do not hesitate to contact me with any
questions or concerns.
R. Kirk Mueller
YLL:ft,.
Davis Graham 8c Stubbs LLP
1550 17th Street, S ite 500 • Denver, CO 80202 • 303 892 9400 • fax 303 893 1379 • DGSLAW.COM
Can� cO/a4/i5- CC ell; Assn adis-102 8
ID/aa A-50090
PETITION TO STATE BOARD OF ASSESSMENT APPEALS For Office Use Only
1313 Sherman Street, Room 315 Phone: (303)864-7710
Denver,Colorado 80203 Fax' (303)864-7719 Docket No.
Fee: Y N
ChecklCredit Card tt
Date: May 12, 2015 P rt
Property Owner: Noble Energy, Inc.
Subject Property: Rural Weld County, Colorado
Street Address City
Schedule Number(s): 025 38103 + (see attached schedule) _
Attach separate sheet if necessary
❑Board of Equalization
Appeals the decision of the Weld iaBoard of Commissioners Dated:5/12/15
County 0 State Property Tax Administrator
This Appeal concerns: IOValuation !a Refund/Abatement ❑Exemption OState Assessed Tax Year: 2012-13
The subject property is currently classified as:
ElAgricultural 0 Commercial DExempt ElIndustrial CiMixed Use ONatural Resources
pJ Oil&Gas ID Personal (]Possessory U Producing (Residential 0 State Assessed
❑Vacant Land Interest Mines
2012: $21,809.891 2012: $21,809.891
Actual Value assigned to subject property: 2013: $29,255,990 Petitioner's estimate of value: 2013: $29,255,990
Estimated time for Petitioner to present the appeal: 60 minutes or 1 hours.
Not fess than 90 minutes. Board will allow equal lime to County or Property Tax Administrator.
Appearance:
D Petitioner will be present at the hearing OPetitioner will appear by telephone
Vi Petitioner will be represented by an agent Petitioner is responsible for calling Me Board at 003-065-Saw
O Petitioner will be represented by an attorney on the scheduled dale and time of hearing{Mountain Thee Zero)
Q Petitioner would like to appear by video conference
Petilioner must contact rho Board at 303.806-5000 al least 20 days In advance
of the scheduled hearing ie confirm availability of video conference equipment
If the property owner is an entity,it must appear under the representation of an attorney licensed in Colorado except as tolbws. A closely held entity may he
represented by an officer of the entity as long as the amount in controversy does not exceed 510.000.exclusive of costs,Interest or statutory penalties.
A closely hold entity can have no more than three owners. See Section 13-1-127,C.R.S. A closely hold entity that will ha represented by an officer of the
entity must provide a letter to the Board with this petition slating that it has no more than three owners and that the tax amount at Issue does not
exceed 515,000 as of August 7,2013.A trust filing a petition as of August fl,2012 may be represented by a trustee,an attorney or an agent.
Filing Fee:
q None Petitioner is appearing pro se(self-represented)and has not filed more than two Petitions with the Board
of Assessment Appeals during this fiscal year(July 1—June 30).
❑ $ 33.75 Petitioner is appearing prose(self-represented)and has filed more than two Petitions with the Board of
Assessment Appeals during this fiscal year(July 1 —June 30).
$101.2.5 Petitioner will be represented by an agent or by an attorney.
In the space below, please explain why you disagree with the value assigned to the subject property
Petitioner's mineral leaseholds in rural Weld County are not legally within the boundaries of Sand
Hills Metropolitan District and should not have been taxed. Too, the Weld County
District Court has held that the District lacked proper authority to impose taxes from 2011 foltivard.
Required attachments to this form:
Rt Assessor's or Property Tax Administrator's Notice of Valuation or Notice of Denial
O Decision of County Board of Equalization, County Board of Commissioners or Property Tax Administrator
Attachments required under certain circumstances:
❑ A notarized Letter of Authorization if an agent will be representing Petitioner
❑ A list of names, last known addresses and telephone numbers of co-owners or parties directly interested in the subject
property if applicable.
Certificate of Service
I hereby certify that a true and correct copy of the foregoing Petition to the State Board of Assessment Appeals and
attachments were mailed, faxed or hand delivered to:
O Board of Equalization
Weld 0 Board of Commissioners
County O State Property Tax Administrator
at the following address: 1550 O Street, Greeley, Colorado 80632
on 6/3/15
Date
I hereby certify that a true and correct copy of the foregoing Petition to the State Board of Assessment Appeals and
attachments were mailed,faxed or hand delivered to all co-owners or parties directly interested in the subject property
on 6/3/15 .
Date
I hereby certify that four (4) true and correct copies of the foregoing Petition to the State Board of Assessment Appeals
and attachments were mailed or hand delivered to the Board of Assessment Appeals at 1313 Sherman Street, Room
315, Denver,CO 80203 on 6/3/15
Date
(One copy may be faxed to the Board but the original and two additional copies must be mailed or hand delivered.)
Petitioner's Mailing Address is Required Even if Petitioner is Represented by An Agent or Attorney (per C.R.S.
p,39-8-109
4/11e.
• Signature f Age C7 or Attorney m Signature o Petitioner
R. Kirk Mueller Mark Patteson
Printed Name Printed Name (24e-
1550 17th Street, Suite 500 1625 Broadway, Suite 2200
Mailing Address Mailing Address
Denver, CO 80202 Denver, CO 80202
City, State, Zip Code City, State,Zip Code
Telephone: 303-892-7456 Telephone: 303-228-4000
Daytime number
E-Mail: Kirk.Mueller@dgslaw.com E-Mail: Mark.Patteson@Nbleenergy,com
Attorney Reg. No.: 16746 It is the Petitioner's responsibility to notify the BAA of any
change of address.
Petitioners are strongly encouraged to read the Instructions and Rules of the Board of Assessment Appeals prior to
completing this Petition Form. The Instructions and Rules are available on the Web at www.dola.Colorado.gov/baa or
may be requested by phone at 303-866-5880.
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PETITION TO STATE BOARD OF ASSESSMENT APPEALS For Office Use Only
1313 Sherman Street, Room 315 Phone: (303)864-7710
Denver, Colorado 80203 Fax: (303)864-7719 Docket No
Fee. Y N
Check/Credit Card P
Date: May 12, 2015
Property Owner: Noble Energy, Inc.
Subject Property: Rural Weld County, Colorado MAY 1 8 2015
Street Address City
Schedule Number(s): 025 38103 + (see attached schedule) WELD COUNTY
Attach separate sheet if necessary COMMISSIONERS'
Board of Equalization
Appeals the decision of the Weld 0Board of Commissioners Dated: 5/12/15
County 0 State Property Tax Administrator
This Appeal concerns: i0Valuation 0 Refund/Abatement O Exemption ❑State Assessed Tax Year; 2012-13
The subject property is currently classified as:
❑Agricultural 0 Commercial ❑Exempt El Industrial °Mixed Use ❑Natural Resources
pa Oil &Gas ID Personal ❑Possessory 0 Producing °Residential UState Assessed
O Vacant Land Interest Mines
Actual Value assigned to subject property: Petitioner's estimate of value:
Estimated time for Petitioner to present appeal:
N t essthhan 30 minutes. Board will allowt es or 1 hours.
equal time to C unnty or Property Tax Administrator
Appearance:
°Petitioner will he present at the hearing °Petitioner will appear by telephone
0 Petitioner will be represented by an agent Petitioner is responsible for calling the Board at 303-866-5880
I21 Petitioner will be represented by an attorney on the scheduled dale and time of hearing(Mountain Time Zone)
Petitioner would like to appear by video conference
Petitioner must contact the Board at 303-866.5880 at least 20 days In advance
of the scheduled hearing to confirm evailabiily of video conference equipment
If the property owner is an entity,it must appear under the representation of an attorney licensed in Colorado except as follows. A closely held entity may be
represented by an officer of the entity as long as the amount in controversy does not exceed$10,000,exclusive of costs,interest or statutory penalties.
A closely held entity can have no more than three owners. See Section 13-t-127,C.R.S. A closely held entity that will bo represented by an officer of the
entity must provide a letter to the Hoard with this petition stating that It has no more than three owners and that the tax amount at issue does trot
exceed$15,000 as of August 7,2013.A trust filing a petition as of August 8,2012 may be represented by a trustee,an attorney or an agent.
Filing Fee:
Q None Petitioner is appearing pro se (self-represented)and has not filed more than two Petitions with the Board
of Assessment Appeals during this fiscal year(July 1 —June 30).
❑ $ 33.75 Petitioner is appearing pro se(self-represented) and has filed more than two Petitions with the Board of
Assessment Appeals during this fiscal year(July 1 —June 30).
gl $101.25 Petitioner will be represented by an agent or by an attorney.
In the space below, please explain why you disagree with the value assigned to the subject property
Petitioner's mineral leaseholds in rural Weld County are not legally within the boundaries of Sand
Hills Metropolitan District and should not have been taxed. Too, the Weld County
District Court has held that the District lacked proper authority to impose taxes from 2011 forward.
anti L14:+ CCE016 C -eA(6y6)letSR- 118 o(6-1Oag
5-.21-.?015
Reg u'
d attachments to this form:
Tp essor's or Property Tax Administrator's Notice of Valuation or Notice of Denial
Decision of County Board of Equalization,County Board of Commissioners or Property Tax Administrator
Attachments required under certain circumstances:
0 A notarized Letter of Authorization if an agent will be representing Petitioner
0 A list of names, last known addresses and telephone numbers of co-owners or parties directly interested in the subject
property if applicable.
Certificate of Service
I hereby certify that a true and correct copy of the foregoing Petition to the State Board of Assessment Appeals and
attachments were mailed,faxed or hand delivered to:
❑Board of Equalization
Weld �$oard of Commissioners
County {❑' tate Property Tax Administrator
at the following address: 1550 O Street, Greeley, Colorado 80632
on S'1 /J-r i — .
Date
I hereby certify that a true and correct copy of the foregoing Petition to the State Board of Assessment Appeals and
attachments were m iled,faxed or hand delivered to all co-owners or parties directly interested in the subject property
on 5 / r' Jr /.)
Date
1 hereby certify that four(4) true and correct copies of the foregoing Petition to the State Board of Assessment Appeals
and attachments were mailed or hand delivered to the Board of Assessment Appeals at 1313 Sherman Street, Room
315, Denver, CO 80203 on ` I ' / ' •
Date
(One copy may be taxed to the Board but the original and two additional copies must be mailed or hand delivered.)
Petitioner's Mailinn Address is Required Even if Petitioner is Represented by An Agent or Attorney (per C.R.S.
39-8-109
(\ . 7/7711---
Signature of ent r Attorney PI Signature o Petitioner .
9 9 �.-
R. Kirk Mueller Mark Patteson
Printed Name Printed Name 46"
1550 17th Street Suite 500 1625 Broadway, Suite 2200
Mailing Address Mailing Address
Denver CO 80202 Denver CO 80202
City, State, Zip Code City, State, Zip Code
Telephone: 303-892-7456 _ Telephone: 303-228-4000
Daytime number
E-Mail: Kirk.Mueller@dgslaw.com _ E-Mail: Mark.Patteson@Nbleenergy.com
Attorney Reg. No.: 16746 It is the Petitioner's responsibility to notify the BAA of any
change of address.
Petitioners are strongly encouraged to read the instructions and Rules of the Board of Assessment Appeals prior to
completing this Petition Form. The Instructions and Rules are available on the Web at www.dola.Colorado.gov/baa or
may be requested by phone at 303-866-5880.
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RESOLUTION
RE: ACTION OF THE BOARD CONCERNING PETITIONS FOR ABATEMENT OR REFUND
OF TAXES - NOBLE ENERGY, INC.
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, the Board of County Commissioners of Weld County, State of Colorado, duly
and lawfully called regular meeting held on the 9th day of March, 2015, at which meeting there
were present the following members: Chair Barbara Kirkmeyer, and Commissioners Mike
Freeman, Sean P. Conway, Julie A. Cozad, and Steve Moreno, and
WHEREAS, notice of such meeting and an opportunity to be present were given to the
taxpayer and the Assessor of said County, with said Assessor, Christopher Woodruff, being
present, and taxpayer, Noble Energy, Inc., being present and represented by Kirk Mueller,
Attorney, and
WHEREAS, at said hearing the Board deemed it advisable to continue said matter to
March 16, 2015, to allow the County Attorney adequate time to research and determine whether
the Board of Weld County Commissioners or the Board of Adjustment Appeals has statutory
jurisdiction to hear the matter; and then again to April 15, 2015, to allow for the matter to be heard
by a full quorum of the Board, and
WHEREAS, on April 15, 2015, the Board of County Commissioners has carefully
considered the attached petitions, and is fully advised in relation thereto.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Board deems it necessary to dismiss the aforementioned petition as it
does not meet Colorado State statutory requirements for consideration for abatement or refund.
CUA5Q.
5)4
..rrto ti d QM21-,
b nlohla ,-
2015-1026
AS0090
TAX ABATEMENT PETITIONS - NOBLE ENERGY, INC.
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 15th day of April, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
4bKirkmeye "y
D COUNTY, COLO ADO
ATTEST: $6u+te`rt/ Cy( ;�
r, hair
Weld County Clerk to the Board ( {
1 Mike Freeman, Pro-Tem
BY: y-
Clear. -t'e
Dee°P ILL to tie Board EXCUSED
ean�P. Conway
ozad
116I 4C9
County /rney
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Date of signature:
2015-1028
AS0090
Davis Richard Kirk Mueller
Graham& 303 892 7456
I. A W StubbsuP kirk.mueller@dgslaw.com
October 22, 2014
Via Federal Express &Email
Weld County Board of Commissioners Christopher M.Woodruff
c/o Rafaela A. Martinez, Deputy Clerk of the Board Weld County Assessor
1150 O Street 1400 N. 17th Street
Greeley, CO 80632 Greeley, CO 80631
RAMartinez@weldgov.com coodruff@weldgov.com
Re: Noble Energy, Inc.'s Petitions for Abatement and Refund of Taxes Certified by Sand
Hills Metropolitan District and Collected by Weld County
Honorable Members of the Board and County Assessor:
On behalf of Noble Energy, Inc. ("Noble"), I enclose herewith three "Petitions for Abatement or
Refund of Taxes" covering the years 2011, 2012, and 2013, requesting the refund of ad valorem taxes
levied upon and paid by Noble to the Sand Hills Metropolitan District("Sand Hills" or"District").
You will recall that I previously lodged petitions for abatement on behalf of Bill Barrett
Corporation ("BBC") and Bonanza Creek Energy, Inc. ("Bonanza")with respect to ad valorem taxes paid
to Sand Hills and collected on its behalf by the Weld County Assessor's office. Like BBC and Bonanza,
Noble believes Sand Hills has "erroneously or illegally" levied taxes on its property (see C.R.S. §39-10-
114 et seq.)for the reasons that are described in detail in the pleadings and briefs of record in lawsuit
currently pending in the Colorado District Court, District of Weld County,styled Bill Barrett Corporation
and Bonanza Creek Energy, Inc. v. Sand Hills Metropolitan District, et at., Case No. 2013CV030928(the
"Litigation") in which Noble has been named as an "involuntary plaintiff."
In particular, Noble believes the severed mineral interests it owns in the vicinity of Sand Hills are
not properly included within the District's boundaries. Sand Hills was created in 2004 and originally
located wholly within the boundaries of the Town of Lochbuie. Commencing in 2009,Sand Hills
transplanted itself to a location thirty miles away in rural Weld County known as 70 Ranch,which is
owned by Robert Lembke,after Mr. Lembke filed a petition to include his ranch in the District pursuant
to C.R.S. § 32-1-401(1)(a). Among other things, Noble contends that Mr. Lembke, who also sits on the
Sand Hills Board of Directors, lacked authority to bring within the District's boundaries the real and
personal property belonging to Noble given that he is not, as the statute requires, the "fee owner. . . of
one hundred percent" of Noble's property. Various other examples of erroneous and illegal actions by
Sand Hills are described in the pleadings and briefs of record in the Litigation which further mandate
that the taxes paid by Noble be refunded. See generally, Amended Complaint in the Litigation, copy
attached hereto as Exhibit A.
1550 17th Street,Suite 500 • Denver, CO 80202 • 303 892 9400 • fax 303 893 1379 • DGSLAW.COM
3440120.1
Weld County Board of Commissioners, c/o Rafaela A. Martinez
Christopher M.Woodruff
October 22, 2014
Page 2
Noble has, without hesitation, paid substantial tax revenues and otherwise supported Weld
County and myriad local governments and special districts within Weld County. Noble respectfully
submits, however, that the actions of Sand Hills are improper, and its petitions for refund/abatement of
taxes should be granted.
Sincerely,
a
C:7 '
R. Kirk Mueller
DAVIS GRAHAM&STUBBS LLP
Attorneys for Noble Energy, Inc.
Enclosures
cc: John R. Lefebvre,Jr.,Weld County Treasurer(via email)
Brad Yatabe, Assistant Weld County Attorney (via email)
EXHIBIT A
DATE FILED:January 3,2014 4:31 PM
DISTRICT COURT, WELD COUNTY, COLORADO FLING ID: 46D55B4D4DD51
Weld County Courthouse CASE NUMBER:2013CV30928
901 9th Ave.
Greeley, Colorado 80631
Plaintiffs: Bill. Barrett Corporation and
Bonanza Creek Energy, Inc.
Involuntary State of Colorado;
Plaintiffs: Weld County, Colorado; and
Noble Energy, Inc.
v.
Defendants: Sand Hills Metropolitan District, f/k/a
Altamira Metropolitan District No. 6;
United Water and Sanitation District;
and the Town of Lochbuie, Colorado
A COURT USE ONLY A
Richard Kirk Mueller, #16746
Ann T. Lebeck, #42424
DAVIS GRAHAM & STUBBS LLP
1550 Seventeenth St. Suite 500
Denver, CO 80202
Telephone: 303-892-9400 Case No. 2013 CV 030928
Facsimile: 303-893-1379
E-mail: kirk.mueller@dgslaw.com Ctrm. Division 5
ann.lebeck@dgslaw.com
Attorneys for Plaintiffs Bill Barrett Corporation and
Bonanza Creek Energy, Inc.
AMENDED COMPLAINT
Plaintiffs Bill Barrett Corporation ("BBC") and Bonanza Creek Energy, Inc. ("Bonanza
Creek") state and allege the following for their Amended Complaint against Defendants Sand
Hills Metropolitan District, formerly known as the Altamira Metropolitan District No. 6 ("Sand
Hills" or the `District"), visited water and Sanitation District (`TJnited Water"), and the Town of
Lochbuie, Colorado ("Lochbuie" or the "Town"):
INTRODUCTION
Defendant Sand Hills was organized with Lochbuie's approval in 2004 for the purpose of
developing 1,496 single family home units and 70,000 square feet of commercial space within
the Town's boundaries. After several years of inactivity and zero revenue, Sand Hills
transplanted itself from a small area within Lochbuie to an isolated area owned by Sand Hills'
president Robert (`Bob") Lembke some 30 miles away and began collecting millions in taxes
from oil and gas producers operating within its new boundaries. In nearly a decade's time since
its organization, Sand Hills has done nothing to develop housing units or commercial space in
Lochbuie. Instead, using taxes collected under its 2004 service plan, it has prepared rough
engineering designs of fanciful water collection and delivery systems to accommodate estimated
future growth in the Weld County region. On December 23, 2013, the newly self-described
"regional special district" obtained Lochbuie's approval of a"modified" service plan by which
the District will provide special favors to the Town while developing "regional improvement"
projects paid for entirely by taxes on the District's few inhabitants.
PARTIES, JURISDICTION, AND VENUE
1. Plaintiff BBC is a Delaware corporation with its principal place of business at
1099 18`h Street, Suite 2300, Denver, Colorado 80202.
2. Plaintiff Bonanza Creek is a Delaware corporation with its principal place of
business at 410 17`h Street, Suite 1400, Denver, Colorado 80202.
3. Defendant Sand Hills Metropolitan District, formerly known as the Altamira
Metropolitan District No. 6, is a special district organized under Title 32 of the Colorado Revised
Statutes with its principal office at 7995 Prentice Avenue, Suite 103E, Greenwood Village,
Colorado 80111. Sand Hills' President is Bob Lembke and its designated contact person is Sue
Blair, CRS of Colorado, LLC, 7995 Prentice Avenue, Suite 103E, Greenwood Village, Colorado
80111.
4. Defendant United Water and Sanitation District is a special district organized
under Title 32 of the Colorado Revised Statutes with its principal office at 7995 Prentice
Avenue, Suite 103E, Greenwood Village, Colorado 80111. United Water's President is Bob
Lembke and its designated contact person is Sue Blair, CRS of Colorado, LLC, 7995 Prentice
Avenue, Suite 103E, Greenwood Village, Colorado 80111.
5. Defendant the Town of Lochbuie, Colorado is a body politic and statutory town
located in rural Weld and Adams Counties, Colorado.
6. Involuntary Plaintiff the State of Colorado is a body politic with an interest in the
subject of this action and is so situated that disposition of thic action in its absence might impair
or impede its ability to protect that interest or expose other parties to a substantial risk of
incurring double, multiple or otherwise inconsistent obligations by reasons of that interest and,
hence, should be joined as an involuntary plaintiff pursuant to C.R.C.P. 19(a). In addition, to the
- 2 -
extent this Amended Complaint requests declaratory relief(see Eighth Claim for Relief, infra),
C.R.S. § 13-51-101 et seq. and corresponding C.R.C.P. 57 provide that entities so situated "shall
be joined" to the litigation. C.R.S. § 13-51-115; see also C.R.C.P. 57(j).
7. Involuntary Plaintiff Weld County, Colorado, is a body politic with an interest in
the subject of this action and is so situated that disposition of this action in its absence might
impair or impede its ability to protect that interest or expose other parties to a substantial risk of
incurring double, multiple or otherwise inconsistent obligations by reasons of that interest and,
hence, should be joined as an involuntary plaintiff pursuant to C.R.C.P. 19(a). In addition, to the
extent this Amended Complaint requests declaratory relief(see Eighth Claim for Relief, infra),
C.R.S. § 13-51-101 et seq. and corresponding C.R.C.P. 57 provide that entities so situated "shall
be joined" to the litigation. C.R.S. § 13-51-115; see also C.R.C.P. 57(j).
8. Involuntary Plaintiff Noble Energy, Inc. ("Noble") is a Delaware corporation with
its principal place of business located at 100 Glenborough Drive, Suite 100, Houston, Texas
77067 and an office at 1625 Broadway, Denver, Colorado 80202. Noble has an interest in the
subject of this action and is so situated that disposition of this action in its absence might impair
or impede its ability to protect that interest or expose other parties to a substantial risk of
incurring double, multiple or otherwise inconsistent obligations by reasons of that interest and,
hence, should be joined as an involuntary plaintiff pursuant to C.R.C.P. 19(a). In addition, to the
extent this Amended Complaint requests declaratory relief(see Eighth Claim for Relief, infra),
C.R.S. § 13-51-101 et seq. and corresponding C.R.C.P. 57 provide that entities so situated "shall
be joined" to the litigation. C.R.S. § 13-51-115; see also C.R.C.P. 57(j).
9. This Court has jurisdiction over this action pursuant to Art. VI, Section 9 of the
Colorado Constitution, which provides that the district courts "shall be trial courts of record with
general jurisdiction, and shall have original jurisdiction" in all civil cases.
10. Venue is proper in this judicial district pursuant to C.R.S. § 32-1-207(3) because
this Court approved the organization of Defendant Sand Hills in 2004.
GENERAL ALLEGATIONS
11. The preceding allegations are incorporated as though set forth fully herein.
12. Plaintiff BBC is an oil and natural gas exploration and development company
with assets in the Rocky Mountain region.
13. Plaintiff Bonanza Creek is an exploration and production company focused on the
extraction of oil and associated liquids-rich natural gas in the United States.
14. Plaintiffs BBC and Bonanza Creek operate in Weld County, Colorado, and within
the current boundaries of Defendant Sand Hills. Noble, an independent energy company, also
operates in that area.
- 3 -
15. Plaintiffs BBC and Bonanza Creek are subject to and have paid ad valorem taxes
levied by Defendant Sand Hills as further detailed herein. Noble is also subject to and has paid
ad valorem taxes levied by Defendant Sand Hills.
16. Defendant Sand Hills is party to one or more "funding agreements" by which it
transfers money it has raised in ad valorem taxes levied upon Plaintiffs BBC and Bonanza Creek
to United Water and Sanitation District.
17. The Board of Directors of Defendants Sand Hills and United Water include three
or four of the same individuals, including Bob Lembke who is or at relevant times was the
president of both districts. Bob Lembke is also the owner of the surface property that is
contained within and comprises the boundaries of the Sand Hills District.
18. Plaintiffs BBC and Bonanza Creek pay severance tax revenues to the State of
Colorado. A portion of these severance taxes collected by Colorado is returned to Weld County
and local communities therein.
19. The ad valorem taxes collected by Sand Hills from Plaintiffs BBC and Bonanza
Creek reduce the severance tax revenues that the State of Colorado collects and thereby reduce
the revenues the State of Colorado provides to Weld County and local communities therein.
Organization of the Altamira Metropolitan District No. 6
20. Defendant Sand Hills was organized in late 2004 under the name "Altamira
Metropolitan District No. 6." The District was formed in conjunction with five other
metropolitan districts identified as the Altamira Metropolitan Districts Nos. 1 through 5.
21. The District's boundaries at the time of its organization in 2004 were located
entirely within the Town of Lochbuie, Colorado.
22. On October 6, 2004, Lochbuie approved the service plan for the District. A copy
of the service plan for the Altamira Metropolitan District No. 6 is attached as "Exhibit A" (the
"2004 Service Plan"). Based on the approved 2004 Service Plan, on November 12, 2004, the
Weld County District Court issued an Order and Decree organizing the Altamira Metropolitan
District No. 6.
23. The District's actions were, from its inception until December 23, 2013, governed
by the 2004 Service Plan.
The 2004 Service Plan
24. The 2004 Service Plan states that the District's purpose was to provide
the of a residentialneighborhood called the"A ltan. ra
infrastructure to support construction a �uuuuui
Development" in the Town of Lochbuie, near the intersection of Weld County Road 4 and Weld
County Road 37. In particular, the District was formed to "finance, construct and install local
- 4 -
and regional public improvements, including streets and traffic signals, and water, sewer, storm
drainage and park, open space and recreation facilities" for the Altamira Development on land
encompassed within the District and Altamira Metropolitan Districts Nos. 1 through 5. See
Exhibit A at 1, 3-4.
25. The 2004 Service Plan further states that the District "will work closely and
cooperate with the Town to serve and promote the health, safety, prosperity, security and general
welfare of the Altamira Development's inhabitants." Exhibit A at 4. Exhibits to the 2004
Service Plan identify and describe various improvements such as asphalt pavement, landscaping,
gutters and sidewalks, fire hydrants, water mains, sanitary sewers, manholes, "Turn-a-bouts
(including Curbing and Landscaping)," storm sewers, drainage facilities, and "Neighborhood
Park Landscaping." See Exhibit A at Exhibit F at 1, 2-3.
26. Upon information and belief, Sand Hills has not constructed, or even begun the
construction of, any of the features or projects described in its 2004 Service Plan.
Inclusion of 70 Ranch, LLC Property and
Activation of the District as a Funding Mechanism for United Water
27. From 2005 through the end of 2009, Altamira Metropolitan District No. 6 had
zero revenue and zero expenditures.
28. On November 25, 2008, the District's Board of Directors, including Bob Lembke,
approved certification of a mill levy of 51.118 mills for its "general operating expenses." At the
time of the District's mill levy certification, the District's Board of Directors certified that the
District's gross assessed valuation was $60, so that its revenue for the 2009 year would be $0.
29. In April 2009, Bob Lembke—owner of 13,000 acres of property known as 70
Ranch, LLC ("70 Ranch") — filed a "Petition for Inclusion" with the Sand Hills Board of
Directors seeking to include the ranch within the District. A copy of the Petition for Inclusion is
attached as Exhibit B. The petition was filed pursuant to C.R.S. § 32-1-401(1) (a), which
provides that the "fee owner or owners" of"one hundred percent of any real property" may
petition to include such property within a special district.
30. The 70 Ranch property is located outside of, and approximately 30 miles removed
from, the Town of Lochbuie. Although the 70 Ranch property reportedly has less than ten
human inhabitants, it is the site of significant mineral exploration and production activities by
companies such as Plaintiffs BBC and Bonanza Creek who own various subsurface mineral
rights at the ranch.
31. Bob Lembke's Petition for Inclusion described, by metes and bounds,
approximately 13,000 acres of surface land and recited that Bob Lembke was the"fee owner" of
the described property and that "no other person, persons, entity or entities owns any fee interest
in the Property." See Exhibit B at 1. The petition did not include or describe any real property
in the nature of subsurface mineral interests at the 70 Ranch and did not purport to include nor,
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pursuant to C.R.S. § 32-I-401(1)(a), could it have included the real property mineral interests
owned by Plaintiffs BBC and Bonanza Creek.
32. Within a few days, the District's Board of Directors (including Bob Lembke)
approved Bob Lembke's petition for inclusion of the 70 Ranch property. The inclusion of the 70
Ranch property was finalized on April 28, 2009, by Order of the Weld County District Court.
33. On November 24, 2009, the District's Board of Directors approved a budget and
mill levy certification for the following year. The certification was based on the newly included
70 Ranch property. However, despite the fact that they were not part of the newly included
surface property at 70 Ranch, the certification included the subsurface mineral leasehold
interests owned by Plaintiffs BBC and Bonanza Creek. The gross assessed valuation was
$17,785,350 and the Board of Directors approved a mill levy certification of 55.000 mills (for its
"general operating expenses").
34. The 2010 budget adopted by the District on November 24, 2009 earmarked
$912,275 for an "IGA [Intergovernmental Agreement] Payment" even though the District at that
time had not entered into any intergovernmental agreements.
35. In April 2010, Sand Hills entered into a "funding agreement" with Defendant
United Water (the "United Water Funding Agreement"). A copy of the United Water Funding
Agreement is attached as Exhibit C. In the United Water Funding Agreement, Sand Hills
pledged to "remit to United on a monthly basis as received, Net Revenues of Sand Hills." See
Exhibit C at 2, § 3.1.
36. Upon information and belief, the boundaries of United Water circumscribe a
small, vacant tract of land with no residents in Elbert County owned by Bob Lembke, or one of
his family members or entities.
37. In addition to Bob Lembke, who is president of both United Water and Sand
Hills, at least three other individuals are members of the Board of Directors of both the Sand
Hills and the United Water and Sanitation District.
38. Also in April 2010, the District moved for, and the Weld County District Court
issued, an Order Confirming Change of Name from Altamira Metropolitan District No. 6 to Sand
Hills Metropolitan District. Upon information and belief, the name "Sand Hills" is inspired by
the remote and desert-like landscape of the 70 Ranch property.
Exclusion of the District's Original Boundaries
39. On April 27, 2011, Sand Hills moved for an order excluding from its boundaries
that land originally comprising the Altamira Metropolitan District No. 6 in Lochbuie. The next
day, the Weld County District Court granted Sand Hills' motion.
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40. As a result of the March 30, 2009 inclusion of the 70 Ranch property into Sand
Hills, and the April 27, 2011 exclusion of the Town of Lochbuie property from Sand Hills, the
District encompassed only the 70 Ranch property that is entirely outside of and approximately 30
miles removed from the Town of Lochbuie.
41. Despite the fact that no property in the Town of Lochbuie is contained within
Sand Hills' current boundaries and, as described below, the only tax revenues collected by the
District have been paid by inhabitants of the District's current boundaries at 70 Ranch, the
District and the Lochbuie Board of Trustees wrongfully continue to operate as though Lochbuie
retains jurisdiction over the District's activities.
The District Collects Millions in Taxes
42. Each year since December 2008, Sand Hills has certified a mill levy for its
"general operating expenses." Through this mill levy certification, Sand Hills has collected
millions in property taxes from owners of subsurface mineral interests at 70 Ranch including
Plaintiffs BBC and Bonanza Creek (and its affiliates and subsidiaries), among others (such as
Involuntary Plaintiff Noble), despite the fact that such mineral interests are not included in the
District.
43. Upon information and belief, Sand Hills has transferred substantial sums of the
mineral taxes it has collected to Defendant United Water and Sanitation District.
44. Pursuant to Colorado's mineral tax code, the ad valorem taxes collected by Sand
Hills from Plaintiffs BBC and Bonanza Creek give rise to a credit against, and therefore reduce,
the severance taxes payable to the State of Colorado. Moreover, because the State of Colorado
returns a significant portion of the severance tax revenues it collects to local jurisdictions, Sand
Hills' ad valorem taxes reduce the revenues available to Weld County and its localities.
45. To date, and despite inquiries made to Sand Hills, it remains unclear how the
funds generated by Sand Hills' tax levies have been used, although it is apparent that none of the
funds were used to finance the activities set out in the 2004 Service Plan. Upon information and
belief, much of the tax revenue has been channeled to Defendant United Water and other special
districts with which Bob Lembke is involved.
The District Abandons the 2004 Service Plan and Proposes
to Pursue Different Activities Pursuant to an Amended Service Plan
46. Pursuant to C.R.S. § 32-1-207(1), a special district such as Sand Hills must
conform its activities as far as practicable to its approved service plan. Sand Hills has taken
virtually no steps to implement the 2004 Service Plan and its activities to date have deviated
widely from those set forth in the plan.
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47. After inquires by oil and gas producers within the District, including Plaintiffs,
about how their ad valorem tax revenues were being spent, the Sand Hills' Board of Directors
began developing drafts of a proposed modified service plan to legitimize its activities.
48. Pursuant to C.R.S. § 32-1-207(2), a special district may make material
modifications of its approved service plan only by petition to and with the approval of the
governing body of the county or municipality that approved the creation of the special district.
In April 2013, Sand Hills submitted a revised service plan to the Town of Lochbuie, followed by
another "Updated and Revised" service plan in September 2013. A copy of the September 2013
"Updated and Revised" service plan is attached as Exhibit D.
49. The "Updated and Revised" service plan, like the original 2004 Service Plan,
states that the District will make "local" improvements within Lochbuie by building such things
as streets, sidewalks, curbs and sanitation for the Altamira Development in Lochbuie, but states —
in addition—that the District will provide various "regional improvements" in Weld County such
as the construction of water truck depots and a"reservoir and recharge site" within the District's
boundaries, as well as a 36 mile-long pipeline to convey water from Kersey to Brighton,
Colorado. See Exhibit D at 7.
50. The "Updated and Revised" plan also calls for payment by Sand Hills to the
Town of Lochbuie to repair Lake Henry, a reservoir located in and belonging to Lochbuie that
has fallen into disrepair. Indeed, to encourage a "yes" vote by the Board of Trustees on its
proposed "Updated and Revised" service plan, Sand Hills committed to deliver a cashier's check
in the amount of$1.35 million to the Town immediately upon approval of the "Updated and
Revised" plan. See Proposed Stipulated Order to Joint Motion for Entry of Stipulated Order
herein, Filing ID 350978A0D95C6, at9[l.c.
51. Pursuant to C.R.S. § 32-1-103(20), a special district must provide services for its
inhabitants and, pursuant to § 32-1-203(2) and Colorado case law, there must be a sufficient need
by and benefit to the taxpayers within a district's boundaries for the proposed services.
52. There is no need within Sand Hills' boundaries at 70 Ranch for the services
described in the 2004 Service Plan which would be provided 30 miles away in the Town of
Lochbuie. Likewise, there is no need for any of the services described in the "Updated and
Revised" service plan, many if not most of which would occur outside the boundaries and
vicinity of the 70 Ranch and some of which will benefit Lochbuie's inhabitants only.
53. Taxpayers within the District's boundaries at 70 Ranch, including Plaintiff
Bonanza Creek, notified Sand Hills that there is no need for the types of public infrastructure and
improvements described in the "Updated and Revised" service plan and that the improvements
would be of no benefit to the taxpayers within the District. See August 23, 2013 letter to Sand
Hills' counsel, Miller & Associates, Exhibit E hereto, at 1. Given that the District did not
implement the activities described in its 2004 Service Plan, and in the absence of any need for
the services described in the "Updated and Revised" plan, these taxpayers called upon the
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District to prepare and file a petition for dissolution pursuant to C.R.S. § 32-1-701 et seq., and to
return the taxes it has collected to the taxpayers. Id. at 2. Sand Hills has refused to honor these
requests.
54. Pursuant to C.R.S. § 32-1-202(2.1), a special district's proposed service plan may
not be approved if a petition objecting to the service plan is filed "by the owners of taxable real
and personal property, which property equals more than fifty percent of the total valuation for
assessment of all taxable real and personal property to be included in such district." On
December 6, 2013, BBC and Bonanza Creek filed a petition objecting to the proposed "Updated
and Revised" plan tendered by Sand Hills and verifying that they owed real and personal
property comprising more than fifty percent of the total valuation for assessment of all taxable
real and personal property within the District. See December 6, 2013 letter to Town of
Lochbuie's counsel, Maureen Juran, Exhibit F hereto, at 1.
55. On September 16, 2013, without having secured approval to amend its 2004
Service Plan, Sand Hills filed a "notice" with this Court declaring its intention to undertake the
"planning, design, construction and financing" of myriad "facilities and improvements in Weld
County." See "Notice of Intention Pursuant to § 32-1-207(3)(b) Sand Hills Metropolitan
District, Weld County, Colorado," Filing ID No. 205241870941, Case No. 04CV1743 (Dist. Ct.,
Weld County, Colorado), Exhibit G hereto. The improvements described in the September 16,
2013 notice were entirely unrelated to any activities set forth in the District's then operative 2004
Service Plan but tracked the activities described in the District's proposed (but not yet approved)
"Updated and Revised" service plan. In sum, Sand Hills gave notice that it intended to break the
law and, accordingly, Plaintiffs initiated this lawsuit.
56. After this suit was filed, Sand Hills reversed course and decided to seek formal
approval of its Updated and Revised Service Plan from the Town of Lochbuie. A public hearing
on the plan was held by the Town of Lochbuie Board of Trustees on December 17, 2013 at
which representatives of Plaintiffs BBC and Bonanza Creek presented statements and testimony
in opposition to the plan. On December 23, 2013, in a four-against-three vote, the Board of
Trustees approved the "Updated and Revised" service plan.
57. Upon information and belief, the following day, the Town received from the
District a cashier's check in the amount of$1.35 million—not a penny of which was raised by
taxes on property or citizens in Lochbuie— for the purpose of repairing Lochbuie's Lake Henry,
a project that provides no benefit to the taxpayer inhabitants of the District who were the source
of the money.
FIRST CLAIM FOR RELIEF
(Injunctive Relief Against Defendant Sand Hills
Based on District's Improper Assessment of Taxes
in Violation of C.R.S. § 32-1-1101(1)(a))
58. The preceding allegations are incorporated as though set forth fully herein.
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59. Pursuant to C.R.S. § 32-1-1101(1)(a), a special district may levy and collect taxes
only upon "taxable property within the special district."
60. When Robert Lembke petitioned to include his property within Sand Hills, he did
so pursuant to C.R.S. § 32-1-401(1)(a) which provides that the "fee owner or owners" of"one
hundred percent of any real property" may petition to include such property within a district.
61. Mr. Lembke's petition identified and described only the surface estate of which
he was the sole owner and did not purport to include, nor could it have, the subsurface mineral
interests belonging to Plaintiffs BBC and Bonanza Creek and Involuntary Plaintiff Noble.
62. Despite the fact that Mr. Lembke did not petition for, and Sand Hills and the
Weld County District Court did not approve, the inclusion of the subsurface mineral interests
belonging to Plaintiffs BBC and Bonanza Creek, the District has certified and collected taxes
from these mineral interests since 2009.
63. Accordingly, Sand Hills has exceeded its authority and improperly collected
revenues and an injunction should issue as described in the Prayer for Relief infra.
SECOND CLAIM FOR RELIEF
(Injunctive Relief Against Defendant Sand Hills
Based on District's Failure to Conform With
2004 Service Plan in Violation of C.R.S. § 32-1-207(1))
64. The preceding allegations are incorporated as though set forth fully herein.
65. Pursuant to C.R.S. § 32-1-207, a special district must "conform so far as
practicable" to its approved service plan.
66. Since its inception in 2004, Sand Hills has not provided or attempted to provide
any of the services or facilities for which the District was organized despite the fact that it has
collected in excess of$4 million in ad valorem taxes pursuant to that plan.
67. Sand Hills now intends to expend funds raised pursuant to the authority it was
granted in its 2004 Service Plan on projects described for the first time in its newly approved
Updated and Revised Service Plan and, upon information and belief, has already delivered $1.35
million to the Town of Lochbuie to repair Lake Henry, a project not even mentioned in its 2004
Service Plan.
68. Accordingly, Sand Hills has failed to conform to its 2004 Service Plan and an
injunction should issue as described in the Prayer for Relief infra.
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•
THIRD CLAIM FOR RELIEF
(Injunctive Relief Against Defendants Sand Hills and the Town of Lochbuic
Based on the Improper Approval of Service Plan in Violation of C.R.S. § 32-1-207(2))
69. The preceding allegations are incorporated as though set forth fully herein.
70. Pursuant to C.R.S. § 32-1-203(1), the "approving authority" with respect to the
creation and operation of a special district is the board of commissioners in the county in which
the district is located. The sole exception to this rule occurs when a district's boundaries are
located "wholly" within the boundaries of a municipality in which event the municipality may be
designated as the "approving authority." Id.
71. At the time of its organization in 2004, Sand Hills was located wholly within the
Town of Lochbuie's boundaries. Since the District included the 70 Ranch property in 2009,
however, it has never thereafter been located wholly within the boundaries of Lochbuie. Indeed,
commencing in 2011 and through the present, no part of the District is located within the Town.
72. Pursuant to C.R.S. § 32-1-207(2), a special district may make material
modifications of its approved service plan by petition to and with the approval of the governing
body of the municipality that originally approved the creation of the special district. However,
such modifications must happen"in substantially the same manner as is provided for the
approval of an original service plan . . . ." Id. The "manner" for approving an original service
plan is set forth in C.R.S. § 32-1-203(1) which, as noted, dictates that the "approving authority"
is the board of county commissioners within whose boundaries the district is located.
73. While Sand Hills and the Town of Locbbuie have continued to operate as though
the Town remains the proper approving authority for the Updated and Revised service plan, the
Town was divested of its jurisdiction under C.R.S. § 32-1-203 in 2009 (or, at the latest, in 2011)
when the District transplanted itself to the 70 Ranch location.
74. Moreover, the District's modified plans constitute a radical departure from its
original service plan that cannot properly be characterized as a "modification." A "metropolitan
district" by definition provides for its "inhabitants," yet Sand Hills' modified plan—propounded
after the District transplanted itself to a new location—provides services specially benefiting
non-inhabitants like the citizens of Lochbuie, as well as "regional" projects for the benefit of
unspecified users. Effectively Sand Hills has become a "regional metropolitan district" whose
newly-authorized activities may benefit users outside of its boundaries, perhaps even outside of
Weld County. As such, assuming that there is even authority for such a creature, it must follow
the procedures for the organization of a new district set forth at C.R.S. § 32-1-203(1).
75. An injunction should issue as described in the Prayer for Relief infra.
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FOURTH CLAIM FOR RELIEF
(Injunctive Relief Against Defendants Sand Hills and the Town of Lochbuie
Based on the Improper Approval of Service Plan in Violation of C.R.S. § 32-1-202 (2.1))
76. The preceding allegations are incorporated as though set forth fully herein.
77. Pursuant to C.R.S. § 32-1-202(2.1), no service plan proposal by a special district
may be approved if a petition objecting to the service plan is filed "by the owners of taxable real
and personal property, which property equals more than fifty percent of the total valuation for
assessment of all taxable real and personal property to be included in such district."
78. On December 6, 2013, BBC and Bonanza Creek filed a petition objecting to the
proposed "Updated and Revised" plan tendered by Sand Hills and verifying that they owned real
and personal property the value of which exceeded fifty percent of the total valuation for
assessment of all taxable real and personal property within the District.
79. Despite the petition from BBC and Bonanza Creek, on December 17, 2013, in a
four-against-three vote, the Board of Trustees approved the "Updated and Revised" service plan.
80. An injunction should issue as described in the Prayer for Relief infra.
FIFTH CLAIM FOR RELIEF
(Injunctive Relief Against Defendant Town of Lochbuie
Based on Judicial Review of Lochbuie's Final Action
Pursuant to C.R.S. § 32-1-206(2) and/or C.R.S. § 24-4-106)
81. The preceding allegations are incorporated as though set forth fully herein.
82. Pursuant to C.R.S. § 32-1-206(2), the approval of a petition for organization of a
special district may be reviewed by a district court upon petition of any interested party and the
approval of a service plan may be denied upon a determination that the decision was arbitrary,
capricious or "unreasonable." Sand Hills' petition to modify its service plan should have been
presented as a petition for organization of a new district and, accordingly,judicial review should
be conducted pursuant to C.R.S. § 32-1-206(2).
83. In the alternative, Lochbuie's approval of Sand Hills' "Updated and Revised"
service plan is a final agency action reviewable pursuant C.R.S. § 24-4-106 upon petition of an
aggrieved party and subject to reversal by this District Court.
84. Plaintiffs herein are "interested parties" pursuant to C.R.S. § 32-1-206(2) and
appeared and presented objections to the Town of Lochbuie regarding the "Updated and
Revisal" service plan Plaintiffs are glen ^artres adversely afferterl and aggrieved nnrci,ant to
C.R.S. § 24-4-106 and had party status at the proceedings before the Town of Lochbuie
regarding the "Updated and Revised" service plan.
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85. The Town of Lochbuie's decision should be reversed as "unreasonable" pursuant
to C.R.S. § 32-1-206(2) and as arbitrary, capricious, a denial of statutory right, contrary to
constitutional right, power, privilege or immunity, in excess of statutory jurisdiction, authority,
purposes or limitations, not in accord with procedures or procedural limitations and otherwise
contrary to law and not supported by the record pursuant to C.R.S. § 24-4-106.
86. In particular, in addition to the violations of Colorado constitutional, statutory and
case law described in Claims One through Four above, the Town of Lochbuie acted
unreasonably, arbitrarily and capriciously in approving the District's "Updated and Revised"
service plan given that 1) Sand Hills' inhabitants and taxpayers have no need for the
improvements and services described in the "Updated and Revised" service plan and 2) will
receive no meaningful benefit from the improvements and services described therein.
87. In addition, the Town of Lochbuie acted unreasonably, arbitrarily, capriciously,
and in contravention of law in approving the District's "Updated and Revised" service plan by
diverting District taxes to its own use, thereby depriving the State of Colorado, Weld County,
and local communities the benefit of severance tax revenues.
88. In further addition, the Town of Lochbuie acted unreasonably, arbitrarily,
capriciously, and in contravention of law by approving the District's "Updated and Revised"
service plan that is vague, ambiguous and lacking in specific descriptions or commitments to
construct projects or provide services in violation of C.R.S. §§ 32-1-202(2) and 32-1-203(2),
such that the District could not be held accountable to "conform" its activities to its plan as
required by C.R.S. § 32-1-207O).
89. An injunction should issue as described in the Prayer for Relief infra.
SIXTH CLAIM FOR RELIEF
(Injunctive Relief Against Defendant Sand Hills
Compelling Refund of Revenues Pursuant to
TABOR Amendment, Colorado Constitution, Article X, § 20(1))
90. The preceding allegations are incorporated as though set forth fully herein.
91. Pursuant to Colorado's "Taxpayer Bill of Rights," Colorado Constitution, Article
X, § 24(a) ("TABOR"), voter approval is required in advance for "any new tax, tax rate
increase," or"mill levy above that for the prior year . . . ."
92. Pursuant to TABOR, Colorado Constitution, Article X, § 20(1), "revenue
collected, kept or spent illegally . . . shall be refunded with 10% annual simple interest" to the
taxpayers along with costs and reasonable attorney fees.
93. Upon information and belief, the only approval by taxpayers for the collection
and expenditure of tax revenues by Sand Hills has been pursuant to the 2004 Service Plan. Sand
Hills has, through its funding agreement with United Water and otherwise, collected and
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disbursed revenues on matters or projects entirely unrelated to the services described in the 2004
Service Plan.
94. Accordingly, Sand Hills has illegally collected and disbursed tax revenues and
must refund those revenues with interest.
95. A mandatory injunction should issue as described in the Prayer for Relief infra.
SEVENTH CLAIM FOR RELIEF
(Injunctive Relief Against Defendants United Water and Town of Lochbuie
Compelling Return of Revenues Illegally Collected By and Received From Sand Hills
Based on Doctrines of Constructive Trust and/or Unjust Enrichment)
96. The preceding allegations are incorporated as though set forth fully herein.
97. Upon information and belief, as a result of the actions described above, Defendant
United Water has received revenue collected and obtained illegally by Sand Hills and has
otherwise benefited from Sand Hills' illegal imposition and collection of taxes.
98. Also as a result of the actions described above, Defendant Lochbuie has received
$1.35 million of revenue collected and obtained illegally by Sand Hills.
99. The funds and other benefits received by Defendants United Water and Lochbuie
were received and obtained at the expense of the District's taxpayers, including without
limitation Plaintiffs BBC and Bonanza Creek, and Involuntary Plaintiff Noble, and at the
expense of Involuntary Plaintiffs Weld County and the State of Colorado.
100. Defendants United Water and Lochbuie received these funds and benefits under
circumstances that would make it unjust for them to retain the funds and benefits.
101. Therefore, a constructive trust should be imposed upon the funds received by
Defendants United Water and Lochbuie from Sand Hills, and/or Defendants United Water and
Lochbuie should be deemed to have been unjustly enriched by their receipt of such funds and/or
benefits, and the amount received should be returned to Sand Hills for refunding to its taxpayers.
102. A mandatory injunction should issue as described in the Prayer for Relief infra.
EIGHTH CLAIM FOR RELIEF
(Action for Declaratory Relief pursuant to C.R.S. § 13-51-101 et seq.)
103. The preceding allegations are incorporated as though set forth fully herein.
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104. Pursuant to Colorado's Declaratory Judgment Act, C.R.S. § 13-51-101 et seq.,
this Court has the "power to declare rights, status, and other legal relations" of the parties herein.
C.R.S. § 13-51-105.
105. Plaintiffs BBC and Bonanza Creek seek declarations including, without
limitation, that:
(a) Since its organization, Sand Hills has not provided or attempted
to provide any of the services or facilities in the 2004 Service Plan for which
the District was organized and by which it was bound until at least December
2013 nor has it otherwise conformed with that plan;
(b) The real property interests belonging to BBC and Bonanza Creek
at the 70 Ranch were not and are not included within the District and the
District had and has no power or right to certify taxes upon such property;
(c) The District's inclusion of surface property at the 70 Ranch and
exclusion of property within Lochbuie from its original boundaries (i) divested
the Town of Lochbuie's approving authority over the District, and (ii)
constituted a material modification of its 2004 Service Plan or the creation of a
new district either or both of which required approval by the Weld County
Board of Commissioners;
(d) Sand Hills' actions — including, without limitation, entering into a
funding agreement with United Water and Sanitation District and transferring
$1.35 million to the Town of Lochbuie to repair Lake Henry— are
unauthorized, illegal, and ultra vires because those actions (i) lack any link to
the 2004 Service Plan or district inhabitants, (ii) do not address any need or
bestow any benefit upon taxpayers within the District, and (iii) were not
approved by taxpayers as required by TABOR;
(e) Because BBC and Bonanza Creek, as owners of real and personal
property allegedly contained within the boundaries of the District, the value of
which exceeds fifty percent of the total valuation for assessment of all taxable
real and personal property, filed an objection, the "Revised and Updated"
service plan should not as a matter of law have been approved;
(f) The Town of Lochbuie erred in approving the "Revised and
Updated" service plan because, without limitation: 1) there was no need for the
improvements and services described in the plan by the inhabitants and
taxpayers of Sand Hills, 2) there would be no meaningful benefit to the
inhabitants and taxpayers of Sand Hills from the improvements and services
described in the plan, 3) the plan improperly diverts funds that would have
been paid to the State of Colorado, Weld County, and local communities, and
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4) the plan is vague, ambiguous and lacking in specific descriptions or
commitments to construct projects or provide services in violation of C.R.S. §§
32-1-202(2) and 32-1-203(2), such that the District could not be held
accountable to "conform" its activities to its plan; and
(g) Pursuant to C.R.S. § 32-1-701 et seq., the District should be
dissolved.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy, Inc.
respectfully request that the Court enter judgment in their favor and against Defendants Sand
Hills Metropolitan District, United Water and Sanitation District, and the Town of Lochbuie,
Colorado, and grant relief as follows:
1. A preliminary and permanent injunction against Defendant Sand Hills prohibiting
it from certifying mill levies, collecting taxes, making expenditures, transferring any of its assets
or revenues, or taking any actions in furtherance of its 2004 Service Plan or "Revised and
Updated" service plan;
2. A declaration of the rights, status, and other legal relations and obligations of the
parties as described in the Eighth Claim for Relief above;
3. A preliminary and permanent injunction against Defendant Sand Hills
ordering it to refund all revenues collected by it to Plaintiffs and other taxpayers,
including all remedies provided by TABOR, Colorado Constitution, Article X, § 20(1);
4. A preliminary and permanent injunction against Defendants United
Water and Lochbuie ordering them to return all amounts received from Sand Hills for
Sand Hills to refund to Plaintiffs and other taxpayers;
5. An order directing Sand Hills Metropolitan District to implement
dissolution proceedings pursuant to C.R.S. § 32-1-701 et seq.;
6. Costs;
7. Reasonable attorneys' fees;
8. Pre-judgment and post-judgment interest to the extent permitted by law; and
9. Such other and further relief as the Court may deem proper and just.
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Dated this 3"' day of January, 2014.
Is/R. Kirk Mueller
R. Kirk Mueller, #16746
Ann T. Lebeck, #42424
DAVIS GRAHAM &STUBBS LLP
Attorneys for Plaintiffs Bill Barrett Corporation
and Bonanza Creek Energy, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that on this 3`° day of January, 2014, a copy of the foregoing
AMENDED COMPLAINT was filed and served on the following via the Integrated Colorado
Courts E-Filing System(ICCES):
Darrell G. Waas
Mikaela V. Rivera
Waas Campbell Rivera Johnson & Velasquez LLP
1350 Seventeenth Street, Suite 450
Denver, CO 80202
waas@werlegal.com
rivera @wcrlegal.com
Counsel for Defendant Sand Hills Metropolitan District
Service upon newly added defendants and involuntary plaintiffs will be made pursuant to
C.R.C.P. 4.
/s/Tamara A. Stires
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PETITIONS FOR
ABATEMENT
OR
REFUND OF TAXES
• PETITION FOR ABATEMENT OR REFUND OF TAXES
County: WELD Date Received
(Use Assessor's or Commissioners'Date Stamp)
Section I: Petitioner,please complete Section I only.
Date: October 16, 2014
Month Day Year
Petitioners Name: Noble Energy, Inc.
Petitioner's Mailing Address: 1625 Broadway,Suite 2200
Denver Colorado 80202
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
See Exhibit A See Exhibit A
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for property tax year(s) 2012 and are incorrect for the following reasons: (Briefly
describe why the taxes have been levied erroneously or illegally,whether due to erroneous valuation, irregularity in
levying,clerical error or overvaluation. Attach additional sheets if necessary.)
Petitioner's estimate of value: $872,991.90 (2011 )and $ ( )
Value Year Value Year
I declare, under penalty of perjury in the second degree,that this petition,together with any accompanying exhibits
or statements, has been prepared or examined by me,and to the best of my knowledge,information and belief,is
?cueeam? .
Petf� Daytime Phone Number( 303 ) 2284000
Noble Energy,er's Signature Inc.
Noble Inc.
By Daytime Phone Number f
Agent's Signature'
'Letter of agency must be attached when petition is submitted by an agent
If the Board of County Commissioners,pursuant to§39-10-114(1),C.R.S.,or the Property Tax Administrator,pursuant to§39-2-116.C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of§39-2-125,C R.S.,within thirty days of the entry of any such decision,§39-10-114.5(1),C.RS.
Section it Assessor's Recommendation
(For Assessor's Use Only)
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected _._
Abate/Refund
❑Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer,§39-10-114(1)(a)(I)(D),C.R.S.
Tax year: Protest? 0 No ❑Yes (If a protest was filed,please attach a copy of the NOD.)
Tax year: Protest? 0 No 0 Yes (It a protest was flied,please attach a copy of the NOD.)
❑Assessor recommends denial for the following reason(s):
Assessor's or Deputy Assessor's Signature
15-DPT-AR No.920-66/11
FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY
(Section III or Section IV must be completed)
Every petition for abatement or refund tiled pursuant to §39-10-114,C.R.S.shall be acted upon pursuant to the provisions of this section by the
Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(17),C.R.S.
Section III: Written Mutual Agreement of Assessor and Petitioner
(Only for abatements up to$10,000)
The Commissioners of County authorize the Assessor by Resolution No.
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of$10,000 or less per tract, parcel, or lot of land or per schedule of personal
property, in accordance with §39-1-113(1.5),C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatement/refund of:
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected _-
Abate/Refund
Note:The total tax amount does not include accrued interest,penalties,and fees associated with late and/or delinquent tax payments,if
applicable. Please contact the County Treasurer for full payment information.
Petitioner's Signature Date
Assessor's or Deputy Assessor's Signature Date
Section IV: Decision of the County Commissioners
(Must be completed if Section III does not apply)
WHEREAS,the County Commissioners of County,State of Colorado,at a duly and lawfully
called regular meeting held on / / , at which meeting there were present the following members:
Month Day Year
with notice of such meeting and an opportunity to be present having been given to the Petitioner and the Assessor
of said County and Assessor (being present—not present)and
Name
Petitioner (being present--not present),and WHEREAS,the said
Name
County Commissioners have carefully considered the within petition,and are fully advised in relation thereto,
NOW BE IT RESOLVED,that the Board(agrees--does not agree)with the recommendation of the Assessor
and the petition be(approved--approved in part—denied)with an abatement/refund as follows:
Year Assessed Value Taxes Abate/Refund Year Assessed Value Taxes Abate/Refund
Chairperson of the Board of County Commissioners'Signature
County Clerk and Ex-officio Clerk of the Board of County Commissioners
in and for the aforementioned county,do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed the seal of said County
this day of
Month Year
County Clerk's or Deputy County Clerk's Signature
Note: Abatements greater than$10,000 per schedule,per year.must be submitted in duplicate to the Property Tax Administrator for review.
Section V: Action of the Property Tax Administrator
(For all abatements greater than$10,000)
The action of the Board of County Commissioners, relative to this abatement petition, is hereby
❑Approved ❑Approved in part$ ❑ Denied for the following reason(s):
Secretary's Signature Property Tax Administrator's Signature Date
15-DPT-AR No.920-66/11
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PETITION FOR ABATEMENT OR REFUND OF TAXES
1 County: WELD Date Received
(Use Assessor's or Commissioners Date Stamp)
Section I: Petitioner, please complete Section I only.
Date: October 16, 2014
Month Day Year
Petitioner's Name: Noble Energy, Inc.
Petitioner's Mailing Address: 1625 Broadway, Suite 2200
Denver Colorado 80202
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
See Exhibit A See Exhibit A
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for property tax year(s) 2012 and are incorrect for the following reasons: (Briefly
describe why the taxes have been levied erroneously or illegally,whether due to erroneous valuation,irregularity in
levying,clerical error or overvaluation. Attach additional sheets if necessary.)
Petitioner's estimate of value: $1,038,785.55 (2012 )and $ ( )
Value Year Value Year
I declare, under penalty of perjury in the second degree, that this petition,together with any accompanying exhibits
or statements, has been prepared or examined.by me,and to the best of my knowledge, information and belief,is
trz, rred,an I^SG.
Daytime Phone Number( 303 ) 228-4000
etitioner's Signature iii"
Noble Energy,Inc.
By Daytime Phone Number( )
Agent's Signature'
'Letter of agency must be attached when petition is submitted by an agent.
If the Board of County Commissioners,pursuant to§39-10-114(1),C.R.S.,or the Property Tax Administrator,pursuant to§39-2-116,C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of§39-2-125,C.R.S.,within thirty days of the entry of any such dedsion,§39-10-114.5(1),C.R.S.
Section II: Assessor's Recommendation
(For Assessor's Use Only)
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
❑Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer.§39-10-114(1)(a)(I)(D),C.R.S.
Tax year: Protest? 0 No 0 Yes (If a protest was filed,please attach a copy of the NOD.)
Tax Fl u ❑Ye` 1 Y ..a.. . ... .Y ... of ..... copy v D.)
❑Assessor recommends denial for the following reason(s):
Assessor's or Deputy Assessor's Signature
—~
15-DPT-AR No.920-66/11
FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY
(Section III or Section IV must be completed)
Every petition for abatement or refund filed pursuant to ¢39-10-114,C.R S.shall be acted upon pursuant to the provisions of this section by the
♦ Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(1.7),C.R.S.
Section III: Written Mutual Agreement of Assessor and Petitioner
(Only for abatements up to$10000)
The Commissioners of County authorize the Assessor by Resolution No.
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of$10,000 or less per tract, parcel,or lot of land or per schedule of personal
property, in accordance with§39-1-113(1.5), C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatement/refund of:
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
Note:The total tax amount does not include accrued interest,penalties,and fees associated with late and/or delinquent tax payments,if
applicable. Please contact the County Treasurer for full payment information.
Petitioner's Signature Date
Assessor's or Deputy Assessor's Signature Date
Section IV: Decision of the County Commissioners
(Must be completed if Section Ill does not apply)
WHEREAS,the County Commissioners of County, State of Colorado, at a duly and lawfully
called regular meeting held on / / , at which meeting there were present the following members:
Month Day Year
with notice of such meeting and an opportunity to be present having been given to the Petitioner and the Assessor
of said County and Assessor (being present--not present)and
Name
Petitioner (being present—not present),and WHEREAS,the said
Name
County Commissioners have carefully considered the within petition, and are fully advised in relation thereto,
NOW BE IT RESOLVED,that the Board(agrees—does not agree)with the recommendation of the Assessor
and the petition be(approved--approved in part—denied)with an abatement/refund as follows:
Year Assessed Value Taxes Abate/Refund Year Assessed Value Taxes Abate/Refund
Chairperson of the Board of County Commissioners'Signature
County Clerk and Ex-officio Clerk of the Board of County Commissioners
in and for the aforementioned county,do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed the seal of said County
this day of
Month Year
County Clerk's or Deputy County Clerk's Signature
Note: Abatements greater than$10,000 per schedule,per year,must be submitted in duplicate to the Property Tax Administrator for review.
Section V: Action of the Property Tax Administrator
(For all abatements greater than$10,000)
The action of the Board of County Commissioners, relative to this abatement petition, is hereby
❑Approved ❑Approved in part$ ❑ Denied for the following reason(s):
Secretary's Signature Property Tax Administrators Signature Date
�15-DPT-AR No.920-66/11
1
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PETITION FOR ABATEMENT OR REFUND OF TAXES
~ County: WELD Date Received _
(Use Assessor's or Commissioners Date Stamp)
• Section I: Petitioner,please complete Section I only.
Date: October 16,2014
Month Day Year
Petitioners Name: Noble Energy, Inc.
Petitioner's Mailing Address: 1625 Broadway,Suite 2200
Denver Colorado 80202
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
See Exhibit A See Exhibit A
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for property tax year(s) 2013 and are incorrect for the following reasons: (Briefly
describe why the taxes have been levied erroneously or illegally,whether due to erroneous valuation,irregularity in
levying, clerical error or overvaluation. Attach additional sheets if necessary.)
Petitioner's estimate of value: $1,401,986.37 (2013 )and $ ( )
Value Year Value Year
I declare,under penalty of perjury in the second degree,that this petition,together with any accompanying exhibits
or statements, has been prepared or examined by me,and to the best of my knowledge, information and belief,is
true,correct,and complete.
i Daytime Phone Number( 303 ) 228-4000
Petitions s Sig tire"-
Noble Energy,Inc.
By Daytime Phone Number f
Agent's Signature*
'Letter of agency must be attached when petition is submitted by an agent
If the Board of County Commissioners,pursuant to$39-10-114(1),C.R.S.,or the Property Tax Administrator,pursuant to§39-2-116,C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of§39-2-125,C.RS.,within thirty days of the entry of any such dedsion,§39-10-114.5(1),C.RS.
Section II: Assessor's Recommendation
(For Assessors Use Only)
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
❑Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer,§39-10-114(1)(a)(I)(D),C.R.S.
Tax year: Protest? 0 No ❑Yes (If a protest was filed,please attach a copy of the NOD.)
Tax year: Protest? 0 No ❑Yes (If a protest was filed,please attach a copy of the NOD.)
❑Assessor recommends denial for the following reason(s):
Assessor's or Deputy Assessor's Signature
—'
15-OPT-AR No.920-66/11
FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY
(Section 111 or Section IV must be completed)
Every petition for abatement or refund filed pursuant to §39-10-114,C.R.S.shall be acted upon pursuant to the provisions of this section by the
Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(1.7),C.R.S.
• Section III: Written Mutual Agreement of Assessor and Petitioner
(Only for abatements up to$10,000)
The Commissioners of County authorize the Assessor by Resolution No.
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of$10,000 or less per tract, parcel, or lot of land or per schedule of personal
property, in accordance with§39-1-113(1.5),C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatement/refund of:
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
Note:The total tax amount does not include accrued interest,penalties,and fees associated with late and/or delinquent tax payments,if
applicable. Please contact the County Treasurer for full payment information.
Petitioner's Signature Date
Assessor's or Deputy Assessor's Signature Date
Section IV: Decision of the County Commissioners
(Must be completed if Section Ill does not apply)
WHEREAS,the County Commissioners of County,State of Colorado, at a duly and lawfully
called regular meeting held on / / ,at which meeting there were present the following members:
Month Day Year
with notice of such meeting and an opportunity to be present having been given to the Petitioner and the Assessor
of said County and Assessor (being present—not present)and
Name
Petitioner (being present—not present),and WHEREAS,the said
Name
County Commissioners have carefully considered the within petition, and are fully advised in relation thereto,
NOW BE IT RESOLVED,that the Board(agrees—does not agree)with the recommendation of the Assessor
and the petition be(approved—approved in part--denied)with an abatement/refund as follows:
Year Assessed Value Taxes Abate/Refund Year Assessed Value Taxes Abate/Refund
Chairperson of the Board of County Commissioners'Signature
County Clerk and Ex-officio Clerk of the Board of County Commissioners
in and for the aforementioned county,do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
,IN WITNESS WHEREOF,I have hereunto set my hand and affixed the seal of said County
thi day of
Month Year
County Clerk's or Deputy County Clerk's Signature
.Note: Abatements greater than$10,000 per schedule,per year,must be submitted in duplicate to the Property Tax Administrator for review.
Section:r: Action of the Property TaxAdministrator
'tratoi
Action(For all abatements greater than$10,000)
The action of the Board of County Commissioners, relative to this abatement petition,is hereby
❑Approved ❑Approved in part$ ❑Denied for the following reason(s):
Secretary's Signature Property Tax Administrator's Signature Date
1$-DPT-AR No.920.66/17
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DATE PILED:March 19,2015 I :44 AM
DISTRICT COURT, WELD COUNTY, COLORADO CASE NUMBER:2013CV30928
Weld County Courthouse
901 9th Avenue
Greeley, CO 80631
Telephone: 970-475-2400
Plaintiffs:
BILL BARRETT CORPORATION and A COURT USE ONLY A
BONANZA CREEK ENERGY, INC.,
Involuntary Plaintiffs: Case No.: 2013 CV 30928
STATE OF COLORADO; Division: 5
WELD COUNTY, COLORADO; and
NOBLE ENERGY, INC.,
v.
Defendants:
SAND HILLS METROPOLITAN DISTRICT, f/k/a
ALTAMIRA METROPOLITAN DISTRICT NO.6;
UNITED WATER AND SANITATION DISTRICT; and
THE TOWN OF LOCHBUIE, COLORADO.
ORDER REGARDING OUTSTANDING MOTIONS FOR PARTIAL SUMMARY
JUDGMENT
THIS MATTER is before the Court on Plaintiff's Motion for Partial Summary Judgment
filed February 7, 2014, as well as an Amended Motion filed September 26, 2014, Defendant
Sand Hills Metropolitan District's Motion for Partial Summary Judgment filed March 14, 2014,
and Defendants Town of Lochbuie, Sand Hills Metropolitan District, and United Water and
Sanitation District's Cross motion for Summary Judgment filed September 10, 2014. The Court
has reviewed the motions, the responsive pleadings, and hereby proceeds as follows:
I. Factual and Procedural Background
Plaintiff Bill Barrett Corporation ("BBC"), is a Delaware corporation with its principal
place of business in Denver, Colorado. BBC is an oil and natural gas exploration and
devebpment company. Plaintiff Bonanza Creek ("Bonanza) is a Delaware corporation with its
principal place of business in Denver, Colorado. Bonanza is an exploration and production
company focused on the extraction of oil and associated liquids-rich natural gas. Both plaintiffs
operate in Weld County and within the current boundaries of Sand Hills Metropolitan District.
Plaintiffs claim injunctive relief, alleging that Defendants have failed to conform to the
2004 Service Plan in violation of C.R.S. § 32-2-207(1). They further seek injunctive relief,
alleging Defendants failed to provide needed services or benefits for taxpayers in violation of
C.R.S. §§ 32-1-103(20, 32-1-203(2). Plaintiffs seek injunctive relief for the alleged improper
approval modification of the service plan in violation of C.R.S. § 32-1-207(2). Lastly, Plaintiffs
seek relief through a declaratory judgment pursuant to C.R.S. § 13-51-101 et seq., ultimately
dissolving Sand Hills Metropolitan District.
Sand Hills Metropolitan District, formerly known as the Akamira Metropolitan District
No. 6, is a special district organized under Title 32 of the Colorado Revised Statutes with its
principal office in Greenwood Village, Colorado.
Defendant Sand Hills was organized with Lochbuie's approval in 2004 for the purpose of
developing 1,496 single family home units and 70,000 square feet of commercial space within
the Town's boundaries. At the time of its organization in 2004, the District's boundaries were
located entirely within the Town of Lochbuie, Colorado. Sand Hills, to date, has not constructed,
or begun construction of, any of the features or projects described in the 2004 Service Plan.
On November 25, 2008, the District's Board of Directors approved certification of a mill
levy of 51.118 mills for its "general operating expenses." At the time of the District's mill levy
certification, the District's Board of Directors certified that the District's gross assessed
valuation was $60, so that for 2009 the revenue would be $0.
On April 27, 2011, Sand Hills moved for an order excluding from its boundaries that land
originally comprising the Altamira Metropolitan District No. 6 in Lochbuie, which was granted
the next day. As a result of the March 30, 2009 inclusion of the 70 Ranch property into Sand
Hills, and the April 27, 2011 exclusion of the Town of Lochbuie property from Sand Hills, the
District encompassed only the 70 Ranch property that is entirely outside of and approximately 30
miles removed from the Town of Lochbuie.
Defendant United Water and Sanitation District is a special district organized under Title
32 of the Colorado Revised Statutes with its principal office in Greenwood Village, Colorado.
70 Ranch, LLC owns some but not all of the mineral interests beneath the surface of its
property. See Hayes Affidavit, Exhibit 3. 70 Ranch, LLC leases its oil and gas interests to
Plaintiff Bonanza Creek Energy, Inc. ("Bonanza'). See Oil and Gas Leases, Exhibit 3. Bonanza
began leasing the oil and gas interests from 70 Ranch, LLC on July 1, 2012, three years after the
70 Ranch was included in Sand Hills.
Bonanza leases mineral interests from other mineral estate owners beneath the 70 Ranch.
On April 30, 2013, Bonanza and 70 Ranch, LLC entered into an Amended and Restated Surface
Use Agreement ("Bonanza SUA"). The Bonanza SUA identifies all of Bonanza's leasehold
interests at the 70 Ranch. See Bonanza SUA, p. 34-41, Exhibit 7 to Sand Hill's response. Many
of Bonanza's leaseholds at the 70 Ranch predate the inclusion of the 70 Ranch into Sand Hills,
and were acquired by assignment. See Bonanza's Response to interrogatory No. 6, Sand Hills
Exhibit 8. Bonanza owns no mineral interests at 70 Ranch. it merely leases mineral interests
owned by others. Id. BBC also leases mineral interests at the 70 Ranch. See Lease Assignment
2
Agreements, Exhibit 9 to Sand Hills' response. BBC purchased its leaseholds on July 10, 2011.
See BBC's Response to Interrogatory No. 6, Exhibit 10 Sand Hills' Response. As with Bonanza,
BBC's leases were in effect at the time of the inclusion of 70 Ranch in Sand Hills. BBC also
owns no mineral interests at 70 Ranch; it too only leases interests owned by others. See Exhibit
9, Ex. A to Sand Hill's response.
11. Standard of Review
"C.R.C.P. 56 authorizes the resolution of issues of law on motion for summary
judgment." Evans v. Rhoades, 497 P.2d 337, 338 (Cob. App. 1972) (citing Carter v. Carter,
366 P.2d 586 (Cob. 1961); Dunford v. City of Thornton, 483 P.2d 977 (Colo.App. 1971)).
Summary judgment is a drastic remedy and should be granted when there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P.
56(c); Raygor v. Bd. of County Comm'rs, 21 P.3d 432, 435 (Colo.App. 2000). "A material fact
is simply a fact that will affect the outcome of the case." Peterson v. Halsted, 829 P.2d 373, 375
(Cob. 1992). Not every argument relating to an issue of fact presents a genuine issue of material
fact for trial. Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504 (Cob. App. 2006);
Burman v. Richmond Homes Ltd., 821 P.2d 913 (Cob. App. 1991). "The purpose of the
summary judgment is to permit the parties to pierce the formal allegations of the pleadings and
save the time and expense connected with a trial when, as a matter of law, based on undisputed
facts, one party could not prevail." Mt. Emmons Min. Co. v. Town of Crested Butte, 690 P.2d
231, 238 (Cob. 1984) (citation and quotation marks omitted).
"The burden of establishing the lack of any genuine factual issue is on the moving party,
but once this burden is met, the opposing party must then demonstrate that a controverted factual
question exists. If the party opposing summary judgment fails to meet this burden, then the court
may properly enter summary judgment on behalf of the moving party as long as the operative
legal principles entitle it to such judgment." Pueblo West Metro Dist. v. Southeastern Colorado
Water Conservancy Dist., 689 P.2d 594, 600-01 (Cob. 1984) (citations omitted). The court must
give the nonmoving party any favorable inferences that may reasonably be drawn from the facts,
and all doubts must be resolved against the nonmoving party. Friedland v. Travelers Indem. Co.,
105 P.3d 639, 643 (Cob. 2005). However, "even where 'it is extremely doubtful that a genuine
issue of fact exists,' summary judgment is not appropriate." Mancuso v. United Bank of Pueblo,
818 P.2d 732, 736 (Cob. 1991) (quoting Abrahamsen v. Mountain States Tel & Tel. Co., 494
P.2d 1287, 1290 (Cob. 1972)). A genuine issue of material fact cannot be raised solely by
means of argument. Sullivan v. Davis, 172 Cob. 490, 495-96, 474 P.2d 218, 221 (1970). The
party opposing a motion for summary judgment cannot rest upon the allegations or denials in its
pleading, but must, rather produce specific facts showing there is a genuine issue for trial. Fed.
Land Bank of Wichita v. Deatherage, 739 P.2d 905, 906 (Cob. App. 1987).
As to Lochbuie's actions in approving the Revised Service Plan, pursuant to C.R.S. § 32-
1-206(1), the standard of judicial review is whether the governing body's action was arbitrary,
capricious, or unreasonable. As stated in State Farm Mutual Automobile Ins. Co. v. City of
Lakewood, 788 P.2d 808 (Cob.1990), the Supreme Court held that a city council's action in
3
approving an initial petition to organize a special district within existing municipal boundaries
was a quasi-legislative action, which was not subject to certiorari review under C.R.C.P.
106(a)(4).
III. Issues to be Resolved
(A) Whether the Real Property Owned by BBC and Bonanza Creek is
"Included" Within the Special District, and therefbre, Whether it can be
Taxed by the District
This issue revolves around the statutory meaning of C.R.S. § 32-1-401(1)(a), specifically
whether it requires or contemplates the consent or participation of mineral leaseholders in an
inclusion petition.
Plaintiffs assert that when Mr. Lembke and Sand Hills added new surface area to the
District, that they failed to bring with it the subsurface mineral interests owned by BBC and
Bonanza at 70 ranch. Therefore, Plaintiffs assert that Plaintiffs' property interest should not have
been taxed by the District. While it is clear that Plaintiffs own a real property interest in the
leaseholds, what is not clear is whether that property interest is the type of property interest
which was contemplated by statute to be required to consent in order to be included in a special
district.
The property located at 70 Ranch is a piece of property where at least some of the
mineral rights have been severed, and are not owned solely by Mr. Lembke. BBC and Bonanaza
have mineral leaseholds at 70 Ranch, and do not own any of the surface estate. Plaintiffs assert
that because Mr. Lembke does not own the severed mineral leasehold interests belonging to BBC
and Bonanza, as well as others, he could not, and did not, petition to include those leasehold
interests within the District pursuant to C.R.S. § 32-1-401(1)(a). Therefore, Plaintiffs argue that
the only real property included within the District at 70 Ranch is the surface land owned 100%
by Mr. Lembke, concluding that the mineral leaseholds owned by Plaintiffs are not within the
district.
(i). Whether the Special District Act Requires Metropolitan Districts to
Provide Benefits for their Inhabitants
Plaintiffs assert pursuant to C. R.S. §32-1-103(10) that the purpose of a metropolitan
district is to provide two or more of certain identified benefits, for example, fire protection,
mosquito control, parks and recreation, for its inhabitants. Plaintiffs argue that none of the
improvements described in the 2004 Service Plan provide a benefit to Plaintiffs or their
properties. Additionally, Plaintiffs note that the Special District Act does not authorize or even
describe "regional" districts.
Defendants argue that while special districts are required to provide benefits to their
inhabitants, they are not required to exclusively benefit their inhabitants. Specifically,
Defendants point to C.R.S. § 32-1-1101(1)(k) which provides that special districts have the
4
power to furnish services and facilities without the boundaries of the special district and to
establish fees, rates, tolls, penalties or charges for such services and facilities.
The Court finds no constitutional violation based upon this argument raised by Plaintiffs.
(ii). Whether Sand Hills Violated the Colorado Constitution's
Requirements of Uniformity of Taxation when it Taxed its Inhabitants
to Construct "Regional" Improvements
Plaintiffs assert that Sand Hills violated Article X, § 3, of the Colorado Constitution
which requires that each property tax levy be uniform upon all real and personal property not
exempt from taxation located within the territorial limits of the authority levying the tax.
Plaintiffs assert that this has been violated by Sand Hills attempt to provide benefits for a region
which encompasses two entire counties and unspecified other areas, with taxes imposed on just a
small portion of inhabitants within that region.
Defendants argue that because taxes are levied uniformly within Sand Hills, there is full
compliance with Colorado Constitution's uniformity clause. Defendants further argue that the
Constitution only requires uniformity of taxation within the boundaries of the District and does
not preclude expenditures outside of the limits of the taxing entity.
The Court finds persuasive Defendants' assertion that were the Plaintiffs' interpretation
to prevail, that all political subdivisions, including counties and municipalities would be
prohibited from engaging in any activity that benefits anyone outside of its boundaries without
violating the Constitution. There would not be a way for governmental agencies to pool
resources or otherwise collaborate on joint projects which involved money. The Court therefore
finds no Constitutional violation on these grounds.
(iii). Whether the United States and Colorado Constitutions Require
Special Districts to Provide Benefits to Taxpayers that Correspond to
Taxes Paid
Plaintiffs assert that Sand Hills has violated the due process clauses of the Unites States
and Colorado Constitutions by imposing ad valorem taxes on Plaintiffs property at 70 Ranch for
the purpose of making improvements for the benefit of the Altamira Development in Lochbuie
and other regional improvements for the benefit of Weld and Adams Counties.
Defendants assert that Plaintiffs confuse ad valorem taxes with special assessments and
the requirements of each. Specifically, "Unlike special assessments, ad valorem taxes are
imposed to defray the general expenses of government. Bloom v. City of Ft. Collins, 784 P.2d
304, 307 (Cob. 1989). In contrast, an essential characteristic of a special assessment is that it
must confer a special benefit to the property assessed. Id. at 308. Because ad valorem taxes are
imposed to support general government expenses, it is not necessary that any special benefit
accrue to each taxpayer. Id.; see also Bradfield v. Pueblo, 354 P.2d 612, 616 (Cob. 1960) ("due
process of law does not require every taxpayer to be individually consulted relative to the
5
levying of a tax of a general nature"). Defendants' Response filed October 27, 2014 pages 8 and
9.
The Court finds that based upon this argument raised by Plaintiffs that there is no
violation of either the United States or Colorado Constitutions.
(B) Whether the town of Lochbuie was and is No Longer the Proper "Approving
Authority"for the Sand Hills District
(I) Municipalities are "Approving Authorities" Only for Districts
Located Entirely Within their Boundaries
Plaintiffs assert that starting in 2009, when the District was relocated to 70 Ranch, which
is not contiguous to Lochbuie, that Lochbuie lost its ability to be the "approving authority" for
the Sand Hills District. It is undisputed that no part of the District currently lies within the
boundaries of Lochbuie. Plaintiffs assert that Sand Hills has violated C.R.S. § 32-1-203, which
states that the board of commissioners of each county "which has territory included within the
proposed special district ... shall constitute the approving authority." Specifically, that C.R.S.
32-1-203 provides that it is only when the boundaries of a proposed district are "contained
entirely within the boundaries of a municipality" that a town can be vested with approving
authority.
(ii) Whether Municipalities Can, by the Vehicle of a Special District,
Impose Taxes on Citizens and Property that are Not Within their
Boundaries
Plaintiffs argue that it is unlawful and unconstitutional for Lochbuie to authorize the
district to collect taxes from property and citizens who have no contact with Lochbuie. As the
District is located outside of Lochbuie's municipal boundaries, the argument is that by approving
Sand Hills' request for authority to tax property at the 70 Ranch, Lochbuie is effectively levying
and collecting taxes on persons and property entirely outside of its jurisdiction.
Specifically, Plaintiffs point to Lochbuie voting "yes" on the District's proposed 2013
Revised Plan, where Lochbuie collected a check from the District in the amount of $1.35 million
to pay for repairs to the Town's reservoir. The entire $1.35 million was raised by ad valorem
taxes on the property located at 70 Ranch.
a. Whether Sand Hills Improperly Transferred Funds to Lochbuie
and United
Defendants contend that because the funding agreement between United and Sand Hills
provides that Sand Hills and United will jointly determine how funds are to be spent that the
funds were properly transferred. Additionally, Defendants represent that funds remitted to
United have only been spent in developing the plans for the projects and preparing the Revised
and Updated Service Plan, and not spent on any projects in the Revised and Updated Service
Plan.
6
(C) Whether the District Materially Departed from the 2004 Service Plan
Without Prior Approval and Without Properly Modifying its Plan
Prior to December 23, 2013, Defendants assert the District was operating pursuant to its
2004 Service Plan which called for the construction of infrastructure "for the use and benefit" of
a residential and commercial subdivision in Lochbuie. 2004 Service Plan attached to Plaintiff's
Brief as Exhibit A, at 3. Pursuant to the 2004 Service Plan, the District was authorized to fund
"any combination of the improvements" identified as "streets and traffic signals, and water,
sewer, storm drainage and park and recreation facilities . . . for the Altamira Development." Id. at
5, 6. In sum, the District proposed, and Town of Lochbuie approved, imposition of ad valorem
taxes to pay for only those projects associated with the Altamira Development as described in the
2004 Service Plan.
Plaintiffs assert that by December 2013, the District had collected over $4 million in ad
valorem taxes pursuant to the 2004 Service Plan, however it did not implement any of the
projects described in the plan. However, starting in April 2010, Plaintiffs allege that without
notifying or seeking approval from Lochbuie, the District's Board of Directors decided it would
institute an expanded and more regional role. Plaintiffs Ex C at 3, 2013 Revised Plan.
Beginning in 2010, the District began expending funds developing plans for various projects
described in its 2013 Revised Plan as "regional improvements" to be constructed in both Weld
and Adams Counties.
(i). Whether the 2013 Revised Plan was Improperly Approved Over the
Objection of Owners of Property Valued in Excess of Fifty Percent of
the District's Total
The Court addresses this issue briefly as it has found that as of 2013 the District was not a
legal entity under the statute based upon the lack of a legal governing authority. To the extent
that this argument is based upon Plaintiffs' objection to the plan, that argument must fail.
(ii). Whether the 2013 Revised Plan is Impermissibly Vague and Conflicts
with the Requirements of the Special District Control Act
As the Court has determined that as of the adoption of the 2013 Revised Plan there was
no longer a legal governing agency, the Court does not address this issue, as the plan is already
determined to be without authority.
(iii). Whether the Town Abused its Discretion and/or Acted Unreasonably
in Approving the District's 2013 Revised Plan
Defendants contend that based upon the information Lochbuie had before it, including
the future need for water, that Lochbuie did not arbitrarily, capriciously, or unreasonably approve
the amended service plan. However, based upon the finding that Lochbuie no longer had
jurisdiction once the special district was completely removed from its boundaries, the Court finds
that Lochbuie had no ability to approve the 2013 Revised Plan.
7
(D) Whether Plaintiffs are Barred from Relief Pursuant to TABOR
Plaintiffs assert that there has not been taxpayer approval for collecting taxes from
Plaintiff. TABOR requires voter approval for any new tax, tax rate increase, mill levy above that
for the prior year, valuation for assessment ratio increase for a property class or extension of an
expiring tax or a tax policy change directly causing a net tax revenue gain to any district. See
Cob. Const., Art. X, §20(4)(a). Defendants assert that the District has held two elections
authorizing tax increases and corresponding mill levy increases, in 2004 and 2012. The Court
can find no violation of TABOR. However, the Court finds that as of April 27, 2011, and
therefore prior to the 2012 election, Sand Hills was no longer a viable District in that it has no
legal governing authority, and therefore any actions would be null and void.
(E) Whether Sand Hills Should be Dissolved Pursuant to C.RS. §32-1-701
As the court has found the District is currently operating with no legal authority, it has no
ability to conduct business, including the collection of taxes. The Court notes C.R.S. § 32-1-701
governs dissolution of special districts. Pursuant to the procedures outlined in that statute, the
Court has no authority to dissolve the same. However, it appears in order for the now stated
purpose of Sand Hills, a new district will need to be formed with the proper governing authority.
IV. Defendant Sand Hills Metropolitan District's Position
(A)Plaintiffs' claim that their Leasehold interests are not properly taxed by Sand
Hills is barred by the statute of limitations and for failure to exhaust
administrative remedies
The court has addressed the issue of whether Plaintiffs must exhaust any administrative
remedies prior to bringing this matter by separate order. The court has determined that the
matter cannot be addressed administratively, and so Plaintiffs are not barred from pursuing relief
in this action.
Defendant Sand Hills asserts that Plaintiffs' leaseholds are properly taxed by Sand Hills.
Specifically, that Plaintiffs' claims are not tenable under a plain and logical reading of the
Special District Act. Sand Hills cites to C.R.S. § 32-t-401(l)(a) which provides: "The
boundaries of a special district may be altered by the inclusion of additional real property by the
fee owner or owners of one hundred percent of any real property capable of being served with
facilities of the special district filing with the board a petition in writing requesting that such
property be included in the special district. The petition shall set forth a legal description of the
property, shall state that assent to the inclusion of such property in 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."
Sand Hills notes that nothing in this statute requires or contemplates the consent or
participation of mineral leaseholders. Sand Hills notes that 70 Ranch, LLC is the only fee owner
8
of the 70 Ranch that was initially included in Sand Hills. Therefore, a petition from 70 Ranch,
LLC was all that was required for its inclusion.
Sand Hills notes that under Colorado tax law and the Colorado Constitution, mineral
leaseholds, like all other taxable real and personal property, are taxed based on the location of the
surface estate. C.R.S.§32-1-1101(l)(a) provides that a special district has the power to "levy and
collect ad valorem taxes on and against all taxable property within the special district." Plaintiffs
do not dispute that their leaseholds constitute taxable property. Instead, Plaintiffs contend their
leases cannot be taxed because they were not specifically identified in the inclusion petition for
the 70 Ranch. However, nothing in §32-1-401(1)(a) requires that all taxable property associated
with the property included within a special district be identified in the petition, or that the owners
of all taxable property consent to inclusion.
Sand Hills asserts that Plaintiffs' argument is illogical in that it requires that every taxable
interest must be specifically identified in the inclusion petition or it is immune from taxation.
Plaintiffs' interpretation would yield absurd results. C.R.S. §32-1-103(22) defines "Taxable
property" as "real or personal property subject to ad valorem taxes." If all taxable property had to
be identified in an inclusion petition, that would require the fee owner to identify every
leasehold, improvement, structure, and residence, and all personal property associated with the
land. This would also require a separate inclusion petition every time any such taxable interest
was added to the land. The Act is not so onerous. Nor is there any legal authority supporting such
a reading of the Act. Rather, the plain meaning of the Act is that only the surface owner can
petition for inclusion of the property into a special district. Pursuant to a separate statute, §32-I-
1101(1)(a), that special district then has the authority to levy and collect ad valorem taxes on "all
taxable property within the special district. "
Further, Sand Hills states that Plaintiffs' reading of §32-1-401(1)(a) also contradicts the
Colorado Constitution. Two sections of the Colorado Constitution expressly authorize Sand Hills
to collect taxes from Plaintiffs, irrespective of their consent to inclusion. Cob. Const. Art. X, §
30)(a) states: "Each property tax levy shall be uniform upon all real and personal property not
exempt from taxation under this article located within the territorial limits of the authority
levying the tax." Pursuant to this section, property is taxed based on its territorial location, not
the owners' consent. Because the 70 Ranch surface indisputably was properly included in Sand
Hills and Plaintiffs' mineral leaseholds are within the territorial boundaries of Sand Hills, their
interests are properly taxed by Sand Hills
In addition, the Colorado Constitution, Article X, § 10 states: "All corporations in this
state, or doing business therein, shall be subject to taxation for state, county, school, municipal
and other purposes, on the real and personal property owned or used by them within the
territorial limits of the authority levying the tax." Plaintiffs are corporations doing business in
Colorado who have mineral leaseholds that are within the territorial limits of the Sand Hills
district. Thus, their leaseholds are properly taxed by Sand Hills.
Sand Hills relies on the fact that assessors statewide have interpreted and applied the
statute to allow taxing of mineral interests contained within a special district. However, the
9
Court does not necessarily rely on this as the authority is being questioned in this action, and
does not appear to have been addressed or resolved previously by a trial or appellate court.
Sand Hills asserts that new legislation, as of June 6, 2014, HB1371, contradicts Plaintiffs'
claims. However, the court finds this argument not persuasive as to any years other than 2013,
when that oil and gas leaseholds in Colorado be taxed based on the location of the leasehold.
HB1371 provides that the method of taxing oil and gas leasehold production be based according
to the location of the wellhead.
(B)Lochbuie is the only jurisdiction with statutory authority to approve
modifications to the Sand Hills service plan.
Sand Hills states that part of the Sand Hills district remains within Lochbuie's boundaries
(see Exhibit 19 attached to their brief filed June 10, 2014). However, it appears to the court that
the territory which is currently located within the boundaries of Lochbuie was included in
December 2013, after the lawsuit was filed. Exhibit 19 of Plaintiffs' reply. From April 28, 2011
to December 5, 2013, no portion of Sand Hills existed within Lochbuie's boundaries.
V. Lochbuie's Position
Lochbuie's position is that its actions can be set aside only if found to be arbitrary,
capricious or unreasonable pursuant to the Special District Control action. See C.R.S. § 32-1-
206(1). Lochbuie's position is that the proposed infrastructure is needed because existing service
is inadequate. There is no water delivery service to the 70 Ranch. No local government
provides municipal type services to either the proposed Altamira development or to 70 Ranch.
Lochbuie concedes that the Revised Service Plan contains material changes from the
original Service Plan approved by the Town; Board in 2004. The Town correctly notes that
pursuant to C.R.S. § 32-1-207(2)(a) that material modifications of a service plan originally
approved may be made only by petition to and approval by the governing body of the
municipality that has adopted a resolution of approval of the special district pursuant to § § 32-1-
204.5 or 32-1-204.7 in substantially the same manner as is provided for the approval of the
original service plan.
A. Whether the Revised Service Plan is Impermissibly Vague
Plaintiff alleges that the Revised Service Plan is impermissibly vague. Specifically,
Plaintiff asserts that there is no project which the District has committed to complete in the
Revised Plan. C.R.S. § 32-1-202(2),(c) and (e) require that a service plan include not just a
description of the proposed services, but also a preliminary engineering or architectural survey
showing how the proposed services are to be provided, and a general description of the facilities
to be constructed.
10
VI. Analysis
It is undisputed that Sand Hills did not build the improvements associated with the
Altamira Development. At this time, the plan has been amended to build a regional water
infrastructure. A regional water infrastructure is an improvement to the property, which would
affect not only the property being taxed, but would greatly improve access for a regional area, as
indicated in the plan. This changes the essential character of the original plan which was for the
development of water resources for a very specific planned residential and commercial
development.
The plan was amended with the Town Board of Lochbuie approving the Revised Service
Plan on December 23, 2013, after the District had essentially abandoned the original intent of the
plan, and was taking steps in furtherance of a plan that had not yet been adopted. Essentially, the
adoption of the new plan was a retroactive approval of what the District had already done.
As there was no property existing within Lochbuie's boundaries from April 28, 2011
until December 5, 2013, after the filing of this lawsuit, Lochbuie lost its authority to be the
governing authority as of April 28, 2011. This loss of authority cannot be cured, more than two
years after the fact, including after the filing of suit regarding this specific issue. Lochbuie
cannot be the governing authority as this would result in an unconstitutional result under Section
32-1-207(2)(a) as applied here because — under the Special District Control Act — the entity with
approval authority acts as a check on a district. However, no Lochbuie citizen is impacted by
Sand Hills, the 70 Ranch taxpayers are unrepresented in the Town, and the Town is improperly
enabling taxes on property and citizens beyond its borders. See id. at 10-12; Colorado
Constitution XX, Sec. 6. See People in Interest of O.C., 308 P.3d 1218, 1221 (Cob. 2013)
("[W]e strive to avoid statutory interpretations that conflict with the Colorado or United States
Constitutions"). This court will not engage in a statutory interpretation which results in
Lochbuie authorizing taxing of persons or entities beyond its borders.
At the time Sand Hills moved to 70 Ranch, there was no longer a municipality available
to be the governing authority. The only legally available governing authority was Weld County.
Section 32-1-204.7 echoes the basic rule in C.R.S. § 32-1-204.5(1) that a municipality may
govern only those districts located "wholly" within its borders. Liikewise, Section 32-1-
207(2)(a)'s reference to what happens when a district includes territory in a county or
municipality with no other territory in the district at most recognizes that a boundary change may
itself constitute a material modification of a service plan and that the inclusion of new territory
may trigger other governments' rights.
The changing of boundaries, and the change of name on April 12, 2010, following the
inclusion of the 70 Ranch property and the Board of Directors instituting and expanded and more
regional role cannot be viewed as anything other than a "material departure" from the original
service plan pursuant to C.R.S. § 32-1-207(2)(a). This is not a simple boundary change; again,
the entire district was removed from the confines of Lochbuie's boundaries to be located at that
time entirely outside of Lochbuie's boundaries. The entire character of the special district was
changed.
11
In the end, it matters not whether Lochbuie's actions were arbitrary, capricious or
unreasonable as Lochbuie no longer had the authority to take action as to the Special District
given the lack of the district being contained within the town of Lochbuie.
As to the issue of whether C.R.S. § 32-401 contemplates the inclusion of leaseholds in
those property owners who would be required to petition for inclusion, the court looks first to the
statute. Section (l)(a) proves "The boundaries of a special district may be altered by the
inclusion of additional real property by the fee owner or owners of one hundred percent of any
real property capable of being served with facilities of the special district filing with the board a
petition in writing request that such property be included in the special district." Unfortunately,
there does not appear to be case law, or other guidance for the court in making the determination
whether it was contemplated that leaseholds would be required to consent when the 100% owner
of the surface rights consents.
The Court agrees that the leaseholds owned by Plaintiffs are a real property interest.
Further, as stated by the Court of Appeals in Keller Cattle Co. v. Allison, 55 P.3d 257, 262 (Cob.
App. 2002) essentially that the duration of a mineral interest may be in fee simple, in fee simple
determinable, for life, or for a fixed term of years. The case does not stand for the proposition
that all severed mineral rights interests are somehow fee interests as appears to be the position of
Plaintiffs. Here, the Court cannot find that the property interest held by Plaintiffs is one which
can be characterized as being held by a fee owner or owners. It is undisputed that Plaintiffs
possess leasehold interests, and are not, in fact, owners of the mineral interests in fee simple.
Therefore, the court cannot find that C.R.S. § 32-401 was violated by the inclusion of the
subsurface property rights held by Plaintiffs without their consent, as there was no requirement
that Plaintiffs consent to the inclusion of their property interests in the district. However, given
the Court's finding as to the loss of authority as of April 28, 2011, this point becomes moot, at
least as of that date. For the time period of April 29, 2009 to April 28, 2011, Defendants'
property was properly included and therefore subject to the taxation by the Special District.
VII. Conclusion
IT IS THEREFORE ORDERED that Plaintiffs Motion for Partial Summary Judgment
be granted as to actions taken by the Special District counLncing at the time the district was
removed from Lochbuie, April 28, 2011. At that time, the Special District lost its legal authority
to collect taxes.
Plaintiffs are entitled to a tax refund for those taxes paid for tax years 2011, 2012, and
2013 as previously determined by this Court in its order dated June 26, 2014.
The Defendants' Motion for Partial Summary Judgment as to the authority to tax
Plaintiffs from April 29, 2009 to April 28, 2011 is hereby granted.
12
DATED: March 19,2015
BY THE COURT:
0)‘46;43
Julie C.Hoskins
District Court Judge
This document was filed pursuant to C.R.C.P. 121, § 1-26. A printable version of the
electronically signed order is available in the Court's electronic file.
13
RESOLUTION
RE: ACTION OF THE BOARD CONCERNING PETITIONS FOR ABATEMENT OR REFUND
OF TAXES - NOBLE ENERGY, INC.
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, the Board of County Commissioners of Weld County, State of Colorado, duly
and lawfully called regular meeting held on the 9th day of March, 2015, at which meeting there
were present the following members: Chair Barbara Kirkmeyer, and Commissioners Mike
Freeman, Sean P. Conway, Julie A. Cozad, and Steve Moreno, and
WHEREAS, notice of such meeting and an opportunity to be present were given to the
taxpayer and the Assessor of said County, with said Assessor, Christopher Woodruff, being
present, and taxpayer, Noble Energy, Inc., being present and represented by Kirk Mueller,
Attorney, and
WHEREAS, at said hearing the Board deemed it advisable to continue said matter to
March 16, 2015, to allow the County Attorney adequate time to research and determine whether
the Board of Weld County Commissioners or the Board of Adjustment Appeals has statutory
jurisdiction to hear the matter; and then again to April 15, 2015, to allow for the matter to be heard
by a full quorum of the Board, and
WHEREAS, on April 15, 2015, the Board of County Commissioners has carefully
considered the attached petitions, and is fully advised in relation thereto.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Board deems it necessary to dismiss the aforementioned petition as it
does not meet Colorado State statutory requirements for consideration for abatement or refund.
CCyAsQ.
5./4
.f 10�➢cdCnt
2015-1028
AS0090
TAX ABATEMENT PETITIONS - NOBLE ENERGY, INC.
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 15th day of April, A.D., 2015.
BOARD OF COUNTY COMMISSIONERS
W D COUNTY, COLO ADO
ATTEST: Waittiot, (d rte_;A hair�fft�
`+ rbara Kirkmeyer,
Weld County Clerk to the Board (L —{
� Mike Freeman, Pro-Tem
BY. I lt+
De LA,Dy Clerk to lie Boar EXCUSED
eean�P. Conway
APPROV A I � �:\%dJ`•
ozad
11.61
;,..,..
Countyhneyref
'a v-� oreno
Date of signature:
2015-1028
AS0090
Esther Gesick
From: Brad Yatabe
Sent: Monday, April 13, 2015 10:38 AM
To: Mueller, Kirk
Cc: Esther Gesick; Robert J. Frick
Subject: Noble Abatement to be placed on April 15, 2015, Board of County Commissioner Agenda
Kirk,
The Noble abatement petition related to the taxes paid to Sand Hills Metropolitan District for tax years 2012-
2013 will be on the Board of County Commissioners hearing agenda this Wednesday, April 15. The meeting commences
at 9:00 a.m. here at the 1150 0 Street Administrative Building in the Centennial Hearing Room. Please let me know that
you received this email and whether you intend to be present or not, or if you want to request the date pushed further
out. It is possible to have you attend telephonically if that is more convenient.
Sorry for the short notice but I was just informed of this addition to the agenda. I am copying the Clerk to the
Board, Esther Gesick, who handles scheduling of agenda items, and Bob Frick as well. Thanks.
BRAD YATABE
ASSISTANT WELD COUNTY ATTORNEY
1 150 O STREET
MAILING ADDRESS: P.O. Box 758, GREELEY, CO 80632
TEL: (970) 356-4000 EXT. 4396
FAX: (970) 352-0242
t'
STATEMENT OF CONFIDENTIALITY& DISCLAIMER: THE INFORMATION CONTAINED IN THIS EMAIL
MESSAGE AND ANY ATTACHMENTS IS ATTORNEY-CLIENT PRIVILEGED, CONFIDENTIAL, AND INTENDED ONLY
FOR THE USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF
THIS EMAIL IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS EMAIL IN ERROR, PLEASE CEASE VIEWING
THE CONTENTS, NOTIFY THE SENDER IMMEDIATELY BY REPLY EMAIL, AND PERMANENTLY DELETE THIS EMAIL
AND ANY ATTACHED MATERIALS.
1
PETITION FOR ABATEMENT OR REFUND
County: WELD Date Reit
(use Assessor's or Commissioner Date Stamp)
Section I: Petitioner, please complete Section I only. OCT / 2014
October 16,2014 i�
Date: WEiLD COUNTY ASSB$SOR
Month Day Year GREELEY, COLORADO
Petitioner's Name: Noble Energy, Inc.
Petitioner's Mailing Address: 1625 Broadway, Suite 2200
Denver Colorado 80202
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
See Exhibit A See Exhibit A
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for property tax year(s) 2012 and are incorrect for the following r�ipfly` 'E D
describe why the taxes have been levied erroneously or illegally,whether due to erroneous valua I
levying, clerical error or overvaluation. Attach additional sheets if necessary.)
FEB I 2015
WELD COUNTY
COMMISSIONERS
Petitioner's estimate of value: $1,038,785-55 (2012 )and $ ( )
Value Year Value Year
I declare, under penalty of perjury in the second degree,that this petition,together with any accompanying exhibits
or statements, has been prepared or examined by me, and to the best of my knowledge, information and belief, is
true_correct, an��.
( 1 ��(/' Daytime Phone Number( 303 ) 228-4000
.1 etitioner's Signature p[i
Noble Energy.Inc. 1lL'/
By Daytime Phone Number J )
Agent's Signature'
'Letter of agency must be attached when petition is submitted by an agent.
If the Board of County Commissioners,pursuant to§39-10-114(1),C R.S.,or the Properly Tax Administrator,pursuant to§39-2-116,C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of)39-2-125,C.R.S.,within thirty days of the entry of any such decision,§39-10-114.5(1),C.R.S.
Section II: Assessor's Recommendation
(For Assessor's Use Only)
Tax Year 2L( [_ Tax Year
Actual Assessed Tax Actual Assessed Tax
odginall) 11 V/r/ d l j 1,; 't 11 'I U "I l a's / . 1/, &'{
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❑Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer,§39-10-114(1)(a)(l)(D),C.R.S.
Tax year: Protest? O No 0 Yes (If a protest was filed,please attach a copy of the NOD.)
.ax year: ❑No ❑Yes (ifaa, ass31.:5.3hcopy o.a .....:DD.) 2015-1028
/ o.... 5555, Pied,
Assessor recommends denial for the following reason(s):
C. 17,54
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I - Assessor' De Assessor's Si Lure
15-DPT-AR AR No.920-66/11
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FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY
(Section III or Section IV must be completed)
Every petition for abatement or refund filed pursuant to $39-10-114,C.R.S.shall be acted upon pursuant to the provisions of this section by the
Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(1 7),C.R.S.
Section III: Written Mutual Agreement of Assessor and Petitioner
(Only for abatements up to$10,000)
•
The Commissioners of County authorize the Assessor by Resolution No.
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of$10,000 or less per tract, parcel, or lot of land or per schedule of personal
property, in accordance with§39-1-113(1.5), C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatement/refund of:
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
Note.The total tax amount does not include accrued interest,penalties,and fees assodated with late and/or delinquent tax payments,if
applicable. Please contact the County Treasurer for full payment information.
Petitioner's Signature Date
Assessor's or Deputy Assessor's Signature Date
Section Iv: Decision of the County Commissioners
(Must be completed if Section III does not apply)
WHEREAS,the County Commissioners of County, State of Colorado, at a duly and lawfully
called regular meeting held on / / , at which meeting there were present the following members:
Month Day Year
with notice of such meeting and an opportunity to be present having been given to the Petitioner and the Assessor
of said County and Assessor (being present—not present)and
Name
Petitioner (being present--not present), and WHEREAS,the said
Name
County Commissioners have carefully considered the within petition,and are fully advised in relation thereto,
NOW BE IT RESOLVED,that the Board(agrees--does not agree)with the recommendation of the Assessor
and the petition be(approved--approved in part—denied)with an abatement/refund as follows:
Year Assessed Value Taxes Abate/Refund Year Assessed Value Taxes Abate/Refund
Chairperson of the Board of County Commissioners'Signature
County Clerk and Ex-officio Clerk of the Board of County Commissioners
in and for the aforementioned county,do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County
this day of
Month Year
County Clerk's or Deputy County Clerk's Signature
yrrN Section
Abatements greater than$10,000 per schedule,per year,must be submitted in duplicate to the Property Tax Administrator for review. -Y
V: Action of the Property Tax Administrator
(For all abatements greater than$10,0001
The action of the Board of County Commissioners, relative to this abatement petition, is hereby
❑Approved ❑Approved in part$ ❑ Denied for the following reason(s):
Secretary's Signature Property Tax Administrator's Signature Date
15-DPT-AR No.920-66/11
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PETITION FOR ABATEMENT OR REFUN I r , `• SI,VED
,
County: WELD Date 'ecelved �� -.3i(Use Assessor's or Commissi Ira DateStamp)
OCT
Section I: Petitioner, please complete Section I only. // J 2014
'J
Date: October 16,2014 w D COUNTY ASSESSOR
Month Day Year GREELEY, COLORADO
Petitioner's Name: Noble Energy, Inc.
Petitioner's Mailing Address: 1625 Broadway, Suite 2200
Denver Colorado 80202
City or Town State Zip Code
SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY
See Exhibit A See Exhibit A
Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the
above property for property tax year(s) 2013 and are incorrect for the following reasons: (Briefly
describe why the taxes have been levied erroneously or illegally,whether due to erroneous valuation,irregulari )q ,
levying,clerical error or overvaluation. Attach additional sheets if necessary.) REC N ED
RFf. 1 ` 201
WELD COUNTY
COMMISSIONERS
Petitioner's estimate of value: $1,401,986.37 (2013 )and $ ( )
Value Year Value Year
I declare,under penalty of perjury in the second degree,that this petition,together with any accompanying exhibits
or statements, has been prepared or examined by me,and to the best of my knowledge, information and belief, is
true,correct, and complete.
/ y 303 228-4000
• /“.._....2---
J �� Daytime Phone Number( )
GGGl_./ Petitioners Sig ��n�
Noble Energy,Inc. HT--
/
l. By Daytime Phone Number( )
Agent's Signature'
'Letter of agency must be attached when petition is submitted by an agent.
If the Board of County Commissioners,pursuant to§39-10-114(1),C.R.S.,or the Property Tax Administrator,pursuant to§39-2-116,C.R.S.,
denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant
to the provisions of§39-2-125,C.R.S.,within thirty days of the entry of any such decision,§39-10-114 5(1),C.R.S.
Section II: Assessor's Recommendation
�
(For Assessor's Use Only)
Tax Year;0//3 Tax Year
,.1 Actual Assessed Tax Actual Assessed Tax
Ongm I F I�S 1 190 $2-5�K*�V1 i S I(3`I`1197`4'iz
Corrected 1/112-5CICID $25)I%'i K4q P143941-17I31-
Abate/Refund '! U (`1
❑Assessor recommends approval as outlined above.
If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest
to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer,§39-10-114(1)(a)(p(D),C.R S.
Tax year: Protest? ❑No ❑Yes (If a protest was filed,please attach a copy of the NOD.)
Tax year: Protest? ❑No ❑Yes (If a protest was filed,please attach a copy of the NOD.)
Assessor recommends denial for the following reason(s):
—I ct,etua l value' has beef Cat le AiLl �rra,-+14-1 T"^'" C^"4-'
i s`^e- 04 uoh.eiws car-oci-S(Ara Mils K.eetyo '(st ta-i it y
P •• __bic- w5evClb (c ac�eu5tAn
iD ci o:A ,O0_ I1 4SS �
" An C . lsorrsS4te J
15-OPT-AR Na 920-66111
FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY
(Section III or Section IV must be completed)
Every petition for abatement or refund filed pursuant to 1 39-10-114,C R.S.shall be acted upon pursuant to the provisions of this section by the
Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(17),C.R.S.
Section III: Written Mutual Agreement of Assessor and Petitioner
(Only for abatements up to$10,000)
The Commissioners of County authorize the Assessor by Resolution No,
to review petitions for abatement or refund and to settle by written mutual agreement any such petition for
abatement or refund in an amount of$10,000 or less per tract, parcel, or lot of land or per schedule of personal
property, in accordance with§39-1-113(1.5), C.R.S.
The Assessor and Petitioner mutually agree to the values and tax abatement/refund of:
Tax Year Tax Year
Actual Assessed Tax Actual Assessed Tax
Original
Corrected
Abate/Refund
Note:The total tax amount does not include accrued interest,penalties,and fees associated with late and/or delinquent tax payments,if
applicable. Please contact the County Treasurer for full payment information.
Petitioner's Signature Date
Assessor's or Deputy Assessor's Signature Date
Section IV: Decision of the County Commissioners
(Must be completed if Section III does not apply)
WHEREAS,the County Commissioners of County,State of Colorado, at a duly and lawfully
called regular meeting held on / I ,at which meeting there were present the following members:
Month Day Year
with notice of such meeting and an opportunity to be present having been given to the Petitioner and the Assessor
of said County and Assessor (being present--not present)and
Name
Petitioner (being present--not present),and WHEREAS,the said
Name
County Commissioners have carefully considered the within petition, and are fully advised in relation thereto,
NOW BE IT RESOLVED,that the Board (agrees--does not agree)with the recommendation of the Assessor
and the petition be(approved--approved in part--denied)with an abatement/refund as follows:
Year Assessed Value Taxes Abate/Refund Year Assessed Value Taxes Abate/Refund
Chairperson of the Board of County Commissioners'Signature
County Clerk and Ex-officio Clerk of the Board of County Commissioners
in and for the aforementioned county,do hereby certify that the above and foregoing order is truly copied from the
record of the proceedings of the Board of County Commissioners.
IN IWITNESS(WHEREOF,I have hereunto set my hand and affixed the seal of said County
�thi5 day of
Month Year
County Clerk's or Deputy County Clerk's Signature
LNote. Abatements greater than$10,000 per schedule,per year,must be submitted in duplicate to the Property Tax Administrator for review.
( Section V: Action of the Property Tax Administrator id" strator
(For all abatements greater than$10,000)
The action of the Board of County Commissioners, relative to this abatement petition, is hereby
❑Approved ❑Approved in part$ ❑ Denied for the following reason(s):
Secretary's Signature Property Tax Administrator's Signature Date
15-DPT-AR Na 920-66/11 - --- - -- - - - - - -- -
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W W W W W W W W W W LLIW W W 00 H
CLERK TO THE BOARD
PHONE: (970) 336-7215, EXT. 5226
86 FAX: (970) 352-0242
1150 O STREET
JJ P.O. BOX 758
GREELEY, COLORADO 80632
GOUN
February 13, 2015
Noble Energy, Inc.
1625 Broadway, Suite 2200
Denver, CO 80202
RE: SCHEDULE NUMBER: O2538103+ (2012 and 2013)
Dear Property Owner:
This is to advise you that the Weld County Board of Commissioners will hear your petition for
abatement or refund of taxes on the property described as: Various Parcels (Please See
Attachment). The meeting is scheduled for March 9, 2015, at 9:00 a.m., in the Chambers of the
Board of County Commissioners of Weld County, Colorado, Weld County Administration
Building, 1150 O Street, Assembly Room, Greeley, Colorado 80631.
The Assessor is recommending that the Board Deny your petition. You are not required to be
present at this hearing; however, this is your opportunity to have your position heard, particularly
if your position is opposed to the Assessor's recommendation. If you intend to submit any
documentation in support of your position for this hearing, all such documentation must be
submitted to the Office of the Clerk to the Board and to the Weld County Assessor's Office at
least seven calendar days prior to the meeting date in order for it to be considered at the
scheduled hearing.
If you have any questions concerning this matter, please do not hesitate to contact me at
(970) 336-7215, Extension 5226.
Sincerely,
( CL661-010-, SifOOELit
afaela A. Martinez
Deputy Clerk to the Board
cc: Assessor
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