You remember – the Big Sky IGA – an intergovernmental agreement presented by the Big Sky developer to the Green Mountain Water and Sanitation District Board Members to sign on May 8, 2018.
The Big Sky IGA – approved by the pro-developer Green Mountain board members literally as the votes were being counted – voting them out of office.
The Big Sky IGA – which established Big Sky, really just one private developer – Tom Morton, as the new sanitation district for all of Rooney Valley. A for-profit sanitation district run by a developer – not accountable to the residents – accountable to really only one person – Tom Morton.
You also remember that the new Green Mountain directors voted into office by the residents on May 8, 2018 – Alex Plotkin, Jeff Baker and Adrienne Hanagan – soon realized what had happened and put the Rooney Valley developers on notice that they were reviewing the IGA. After working on the issue for 8 months, including hearing from Big Sky’s attorney in a debate in January, 2019, the new board members passed a resolution terminating the IGA on April 9, 2019.
Big Sky sued and persuaded their developer friends to also sue:
Big Sky – a special district created in 2016 for a large tract immediately west of Solterra – no residents – just a director, Tom Morton. The same Tom Morton who was VP of Brookfield when Brookfield ran Solterra. He was also on the Solterra board when Solterra’s elections were routinely cancelled and Brookfield employees appointed themselves to run Solterra.
Cardel Homes – a homebuilder who said they would no longer fund children’s sports activities because 200 was passed by the voters limiting over-development in Lakewood. They own a parcel immediately south of Big Sky. They will be applying to be a special district in June. We look forward to that debate – the first application was a poster child for special district abuse and the second application will no doubt be equally defective.
CDN – the actual investors from Canada who own Big Sky – yes, they have the same interests as Big Sky and sued to add to the costs for Green Mountain.
The Three Dinos – according to their attorney’s explanation in court is pronounced “DEEEEnos” as in “DEEEnosaur” – the three investors, including Greg Stevenson, who tried to build car-lots at Dinosaur Ridge. They own the land surrounding the C-470/Alameda Interchange at Dinosaur Ridge.
Stream Realty – led by Hank Brumley – actively involved in trying to cash in on the development of the three deeenos property for many years – has a contingency contract to build warehouses around Dinosaur Ridge. Yes, his interests are the same as the three deeenos and sued to add to the costs for Green Mountain.
Big Sky has a history of getting other organizations to “pile on” with additional lawsuits and pay those other organizations’ attorneys fees. My guess is that they are paying Cardel, three deeenos and Stream Realty’s legal costs – to add to the harassment costs for Green Mountain.
Here are the prior reports on the litigation:
Big Sky Hearing Rescheduled To December 9, 2019 at 3:00 pm and Recent Briefs
Big Sky Sues Green Mountain Water and Sanitation to Force the IGA
Here are the updates since November, 2019:
1. Consolidation.
Big Sky and the other developers have worked hard to dominate and disrupt the litigation by having multiple attorneys make multiple arguments in their favor – there are 5 of them and 1 of Green Mountain. Their “strategy” is working. The Judge spends two hours listening to the developer attorneys and 10 minutes listening to Green Mountain’s attorney.
The Judge took several months and finally consolidated the cases – but, predictably, was persuaded by the shear volume of argument from 5 different developer attorneys that their cases were all somehow special and needed individual treatment. The cases are consolidated, but they aren’t. There will be multiple hearings and trials on separate issues.
That of course will cost Green Mountain more money – which is ultimately Big Sky’s “strategy”.
2. The Critical Issue
All the cases rise or fall on one issue – the Big Sky IGA. Did the new Green Mountain board have the authority to terminate the Big Sky IGA approved by the previous board the very night the previous board was being voted out of office.
Big Sky and their minions argue that the Big Sky IGA was simply a contract and that the new board – elected the night Big Sky was signing the IGA with the old board – was stuck with the deal approved by the old board.
Green Mountain argues that, first, the Big Sky IGA was just what it says it was – an intergovernmental agreement.
Green Mountain has taken the position initially that Green Mountain’s decision to terminate the IGA was a quasi-judicial decision and Big Sky waited too long to file their lawsuit – the lawsuit was barred by the statute of limitations.
What is equally true, and has not yet been argued by Green Mountain, is that if not a quasi-judicial decision, terminating the IGA – just like approving the IGA in the first place – was a legislative decision by Green Mountain. As such – a legislative decision – it is entitled to significant deference and limited review (second guessing) by a court. Setting up a new sanitation district – as is clear from all the detail of the Big Sky IGA itself – and allowing a significant modification of the Big Sky special district – was a significant policy decision by the old board – not simply a contract.
So, is the IGA a contract or a legislative act. Was terminating the IGA a quasi-judicial decision, a legislative decision – or as argued by Big Sky – simply reneging on – breaking – a contract.
What is most interesting about the multiple briefs filed by Big Sky and their minion developers is their reliance upon caselaw that predated, or involved transactions predating, adoption of the statute creating IGA’s by the legislature. Big Sky relies on pre-IGA cases to argue the IGA is not an intergovernmental agreement (legislative act). They argue it is really just a contract.
But, by the terms of the IGA itself and the statute, IGA’s are not simply contracts – they are legislative acts. And the only case – a court of appeals decision – that addresses IGA’s – is completely and deliberately ignored by the Big Sky group. That decision not only makes clear that the IGA is a legislative decision, but goes so far as to indicate the citizens may recall a board that passes an IGA so that a new board may terminate the IGA – in other words an IGA is subject to reversal upon action by the citizens. An IGA is not simply a contract. Big Sky fails to address this case or the statute – simply ignores the law regarding IGA’s. Convenient.
Here is the reference to the IGA statute and decision. Both can be googled:
CRS 29-1-203 and the 1970 amendment to the Colorado Constitution Article XIV Sec. 18.
Durango Transp., Inc. v. City of Durango, 824 P.2d 48, 52 (Colo. Ct. App. 1991). (intergovernmental agreements are legislative acts which are by their very nature “subject to the control of the citizenry” and “since each respective group of citizenry in the City and County can effect change through the electoral process, it follows that if they are dissatisfied with an intergovernmental contract entered into by their responsible governing boards, they can also exercise their rights by recalling the elected officers who approved the contracts.”)
3. District Court Decision
Big Sky’s “strategy” has worked on the District Court Judge – Chris Bachmeyer. She also ignored the fact that the cases Big Sky relied upon were pre-IGA cases. She also ignored Durango Transp, Inc. v. City of Durango.
Judge Bachmeyer filed a written decision denying Green Mountain’s motion to dismiss (because Big Sky filed the lawsuit too late) deciding that the resolution by Green Mountain termainating the IGA was not a quasi-judicial decision, in part because the IGA is simply a contract, not a legislative decision.
The decision is wrong for at least two reasons.
First, whether or not the IGA is a contract or legislative decision depends upon certain factual assumptions and it will be up to a jury to make those decisions, not the court. The facts set out in the IGA itself show that the IGA creates a new sanitation district and modifies the Big Sky Service Plan – it is not on its own terms a contract. The court’s decision ignored the factual dispute.
Second, as already discussed, the court completely ignored the fact that the cases relied upon by Big Sky all pre-date the IGA statute, that the IGA statue and the IGA itself define the IGA as a legislative act, and the court completely ignored the Durango decision.
Here is the court’s decision:
4. The Appeal
Green Mountain has appealed the district court’s decision. There are three levels of courts – district court, court of appeals, Supreme Court (Colorado).
The appeal is over whether or not the district court was correct in denying Green Mountain’s motion to dismiss based upon the statute of limitations. In other words, did Big Sky and the rest of the group wait too long to file their lawsuits.
The first issue however, is whether or not Green Mountain has to wait until the case is completely over – trials and hearings and final decisions on all the issues – before they can ask the Court of Appeals to review the decisions – decide whether or not the district court was right.
Big Sky and the others have asked the Court of Appeals to dismiss the appeal until after the entire case is decided.
If the Court of Appeals decides the appeal was premature, then the case goes back to the district court for more hearings, discovery and ultimately a trial. Then, whoever loses can file an appeal, including if necessary, an appeal on whether or not the lawsuits were filed too late.
If the Court of Appeals decides the appeal was not premature, then it will decide whether or not the lawsuits should be dismissed because they were filed too late. The district court said they were not filed too late. The Court of Appeals would decide whether or not that was correct.
5. Perpetual False Narrative by Big Sky (plus minions)
A. Big Sky and the others consistently assert that they cannot develop the Rooney Valley without the IGA. This is simply false – and they know it. There are at least four ways for them to get sewer for their developments.
Their problem is – unlike the midnight IGA signed the night of the election May 8, 2018 – all the ways to get sewer require public applications and public hearings. They can develop and obtain sewer without the IGA, they just don’t want to “bother” with public hearings on setting up a new sanitation district
Big Sky and the others hate public hearings. There is a reason that their special districts, including Solterra under Tom Morton’s (now Big Sky) direction, cancelled the public elections and eliminated the right of the residents to vote on bond debt. They want complete control over the decision-making. They don’t like the public interfering. So they create private governments – special districts – that get to tax and pass laws – without interference (during a period from 10 – 20 years) from the very residents they “represent”. This is not good public policy. By definition.
B. Another false narrative advanced to the courts is that the new Green Mountain directors hate development and will do anything to stop Rooney Valley from developing. This is simply false.
I have heard each of the directors elected May 8, 2018, speak publicly about their views. They do not oppose development. They support development.
They do, however, oppose abuse – abuse of special districts, abuse of the public trust and abuse of the laws established to guarantee public policy making, not private profiteering, over the regulation of scarce public resources like water and sewer.
They have a duty – a significant duty – to the public – to protect the integrity of the delivery of sanitation services. Giving up that duty to private developers is a violation of their obligation to the community.
Big Sky and the others can get sewer, but they have to follow the rules, and defend their applications in public hearings, just like everyone else.
You will not find these board members – this group of elected citizens – signing midnight IGA’s on election night to circumvent, sabotage and corrupt open and public representative government.
C. Another false narrative is that Big Sky and the others have some kind of right to sewer from Green Mountain. This is simply false. Green Mountain is a special district created for the purpose of providing water and sewer services to the residents in its district. Big Sky and the others are outside the district. They are not residents of the Green Mountain district. Green Mountain owes them no duty or obligation whatsoever.
Indeed, under the terms of the Green Mountain service plan, Green Mountain has no authority to provide service outside its territory – without a public hearing and vote to amend its service plan.
Adam Paul (then on the Green Mountain board) and Big Sky’s attorney (and also Brookfield’s attorney at the time) came up with the idea to get around the service plan with an IGA – first as to Solterra. The idea of an IGA was later used for Big Sky. But it was wrong. Of course they got away with it – until someone said, “no”. (Note that the Solterra IGA did not create a new sanitation district – and the agreement to provide sewer service to Solterra expires in 2023. Solterra has no right to sewer service from Green Mountain either – because Solterra is also outside the Green Mountain district).
So, I’ll report again once the Court of Appeals decides whether or not the appeal was filed too soon.
Meanwhile, support your board. These residents had the courage to stand up to Big Sky and expose their abuse of the special district laws, expose Big Sky’s abuse of the previous board and expose Big Sky’s attempt to create a new private profiteering sanitation district for all of Rooney Valley -with no accountability to the public for the foreseeable future. These citizens are working hard to make good public policy. They are working hard to resist the abusive efforts by the short term developers to monopolize public policy making in order to maximize their profits. In the Front Range, this representation by elected representatives is rare. They deserve your support.
Also, we just had an election. Congratulations to Rhonda Peters and Karen Morgan, the two new members of the Green Mountain board.
They replace two members – who actually signed the Big Sky IGA May 8, 2018 – and who steadfastly opposed the new board members’ efforts to terminate the Big Sky IGA.
Here again are a few key documents:
The IGA
The resolution terminating the IGA:
Green Mountain Adopted Resolution Termination Big Sky IGA April 9, 2019
Map of Proposed Big Sky IGA enlarged territory beyond territory originally approved by City of Lakewood in 2016:
attachment B Big Sky Evaluation
Map of the only Big Sky territory approved in 2016 by Lakewood City Council. The map above is what Big Sky unilaterally “approved” for themselves in the IGA – with no permission from Lakewood to modify the Big Sky Service Plan. The expansion in the map above that goes beyond what is shown below is a violation of the Big Sky Service Plan:
Original approved Big Sky territory in 2016 (outlined in black) overlay with expanded territory which violates Big Sky Service Plan and is not approved by the City of Lakewood:
John Henderson
Thank you for all your efforts putting light on the abuses visited on the Green Mountain community by developers who are only focused on lining their own pockets financially.
Thank you for your diligence and disclosure of the facts, as well as the incestuous and self-serving integration of these development groups whose only interest is their own profit, not the welfare of Lakewood or Jeffco citizens and our resources.