Mr. Skilling sent a letter with copies to the City Council and asked that it be posted on this blog. Ms. Franks also signed on.
The letter is linked below. Here is an open letter in response to the letter from Ms. Franks and Mr. Skilling:
Dear Dave and Barb
Thank you very much for your letter in response to my recent blogs.
Until recently I have always been supportive of your work and especially appreciative of your efforts to facilitate open discussion of all issues during the Ward 4 meetings. I continue to appreciate your hard work and respect your thoughtful consideration of the issues.
But, I have to honestly add that my support has gradually waned because of a lack of leadership – on behalf of the citizens – on land use issues over the years, beginning with the Dinosaur Ridge issue. The residents of Ward 4 have consistently asked for leadership -representation of the citizens – on land use issues regarding Dinosaur Ridge, preservation of open space, Special District abuse, the Big Sky IGA, Repayment of the C-470 Interchange Loan, Strategic Growth Initiative – and the response has been wanting. For example, you continue to “lead” the effort to “clarify” and further whittle away at the Strategic Growth Initiative. We are only just beginning a discussion of special district abuse and reform. And while I am looking forward to and am more than ready to address that subject at the upcoming study sessions, it has been a long wait.
This issue regarding the new Big Sky Ordinance “clarifying” how the Strategic Growth Initiative applies to CDN/Big Sky is representative of the tension we feel. Despite numerous efforts to find out what this issue was all about it was not until last week, days before the first hearing, that we discovered its true nature and at the same time discovered that you and Barb were “carrying the water” on this issue for Tom Morton and Big Sky/CDN. Representing Big Sky/CDN. Not so much the residents.
This Big Sky/CDN Ordinance is another watershed moment for your “leadership”.
Lets assume for the moment that we are all doing everything we can to genuinely understand the issue and communicate the pros and cons of the issue as clearly as possible to the public. Full and open debate can only help us all decide for ourselves what is going on and what we think about it.
I continue to hope that your continued consideration of the issue and keeping an open mind on the issue will generate the best decision. Barb I think is still listening. I am not sure Dave that you are, but I hope so. I hope you have not pre-judged the issue before the full and fair debate is concluded just because you are sponsoring this new ordinance on behalf of Big Sky/CDN.
Lets begin with what we agree on.
At the Ward 4 meeting, you agreed with me that under the proposed Ordinance, Big Sky/CDN was free to build as many homes as they want to, whenever they want to.
Under the proposed ordinance, the Strategic Growth Initiative 1% cap would not limit or prevent Big Sky/CDN from building as many homes as they want to, whenever they want to.
Thats why their attorney in the letter I published wants you to pass this new ordinance for them – why the attorney even went so far as to demand that you pass the ordinance – and who in no uncertain terms threatened to sue you all if they didn’t get what they wanted.
We can also agree that under the proposed new Big Sky/CDN ordinance, all other developers are not free to build as many homes as they want to whenever they want to. In fact, because the new proposed ordinance guarantees that Big Sky/CDN, and only Big Sky/CDN, can take as many permit allocations as they want to, the other developers’ pool of available allocations is actually smaller.
The other developers get a much smaller piece of the pie because they only get what is left over after Big Sky/CDN takes their slice. The pie is smaller for the other developers because of the Big Sky/CDN proposed ordinance.
This sounds like an exemption to me.
Right now, the SGI applies equally to Big Sky/CDN and all the other developers. At Big Sky/CDN’s request and under your “leadership”, the proposed ordinance frees Big Sky/CDN from the potential obligation to limit their number of permits each year according to the allocation process – that applies to all the developers under the SGI.
Under the proposed ordinance, Big Sky/CDN gets a big break that does not apply to all the other developers. Big Sky/CDN’s letter plainly states they want to be treated differently from all the other developers.
But you argue that the number of permit allocations that Big Sky/CDN takes is not “exempt’ from the 1% cap – that the 1% cap still limits all the other developers – and therefore there is no “exemption”.
As long as we agree on what is going on I don’t know that it matters a whole lot what you call it. Big Sky/CDN is getting a big break that the other developers aren’t getting. Lets call it the Big Sky/CDN “Big Break”.
I discussed this dynamic in my last blog. You didn’t appear to disagree with it, but let me know if you do. It will help shape the next debate.
Here it is again:
“Real numbers:
Lets say the 1% cap is calculated for next year and a total of 500 permits are allowed. Under Skilling/Franks scenario 1, Big Sky/CDN is guaranteed whatever they ask for – say 400 permits. Under scenario 1, the rest of the developers still get to divide up 500 permits.
Total permits is now 900 instead of 500. Big Sky/CDN wins, Citizens penalized.
Under Skilling/Franks scenario 2, Big Sky/CDN is still guaranteed whatever they want – again lets say 400 permits for next year. Again, lets say the 1% cap equals 500 permits allowed for next year. Under scenario 2, Big Sky/CDN still gets their guaranteed 400 permits first, and then the rest of the developers fight over what’s left (500 total minus 400 for Big Sky/CDN equals 100 permits left for the rest of the developers).
Total permits is still 500. Big Sky/CDN still wins, Other developers penalized by Big Sky/CDN special treatment preferential treatment.
So, the Skilling/Franks argument is – we need to pass this ordinance (Scenario 2) now, guaranteeing the Big Sky/CDN exemption [Big Break] and penalizing other developers, to prevent a future city council from passing an ordinance adopting scenario 1 – again guaranteeing the Big Sky/CDN exemption [Big Break] but penalizing the citizens instead of penalizing other developers.
What a choice – penalize other developers or penalize the citizens – all to guarantee Big Sky/CDN is exempt [Big Break] from the Strategic Growth Initiative. Preferential treatment for Big Sky because . . .
Of course, there are other choices, including, don’t penalize anyone and treat Big Sky/CDN the same as any other developer. No special preferential treatment. (There’s a novel idea).
. . .
Finally, one might ask – who cares. Under the proposed ordinance (Skilling/Franks scenario 2) Big Sky/CDN gets what they want but the end result – the net result – is still a total cap of 1%. Under the Skilling/Franks ordinance, scenario 2, Big Sky gets what it wants but it only hurts the other developers, not the citizens.
Think about that for a moment. The two Skilling/Franks scenarios either punish the citizens or punish the other developers – but Big Sky/CDN always comes out on top. They always win. The Skilling/Franks scenarios just decide who gets hurt – pick your poison – either the citizens or the other developers.
Nice choice.
That is the kind of public policy analysis generated by a profiteering motive, not a public policy motive. That is a developer approach to making public policy. It is not a representative of the residents approach to good public policy – guided by what’s good for the residents as opposed what’s profitable for the developer. (Yet another example of why its a bad idea to have a private developer running a government – a special district.)
And what about the other developers. Do you think they have an argument that this ordinance violates the equal protection clause – passing a law that favors one specific developer over another. Legislation targeting and benefiting one private special interest is always fraught with danger. Sets the City up for failure with more challenges from other developers.
There are other choices. One choice is to do nothing. We can deal with it if it becomes an issue – and if it does – the legal argument in response is that Big Sky/CDN may have a “vested” right to 1,630 units in 25 years, but that is no guarantee as to the RATE they will be built. The citizens have spoken on the RATE of growth and it is capped, for everyone, including Big Sky/CDN, at 1%.”
Dave and Barb, your letter also addresses the 2009 Ordinance which was described and argued in detail in the letter from Big Sky/CDN’s attorney, which I included in my first blog. This was the ordinance that established the “vesting rights” for the development in 2009.
Lets look at that 2009 Ordinance. It is written as a contract with two key provisions. The first is the agreement – what is Big Sky/CDN getting and what is the City getting in return. (Never really see what the City is getting in return, but that’s a different issue) Here is what it says:
“Vested Rights The ODP . . . creates vested property rights to develop the property in the manner contemplated by the Site Specific Development Plan.”
There is nothing in this definition of the “vested rights” or the Site Specific Development Plan that establishes a guaranteed right to the number of permits per year and the RATE of construction.
In fact the very next sentence in the “vested rights” section says there may be “subsequent approvals” which will become vested.
For example, the subject of such “subsequent approvals” might include something like the SGI which regulates the RATE of the development – something that is absent from this agreement.
And, the very fact that Big Sky/CDN is demanding this new ordinance that you and Ms. Franks are promoting is the best evidence that the RATE of the development – the number of permits each year – is absent from this 2009 agreement ordinance.
If it was already guaranteed in 2009, you wouldn’t need this new proposed 2020 ordinance.
Paragraph 2 talks about the term of the vested “agreement”. 25 years.
So, under this 2009 agreement ordinance, what Big Sky/CDN gets is a vested right in the number of units in the Site Specific Development Plan (1,630) and for 25 years.
Nothing about how many permits per year during those 25 years.
Nothing.
The second provision, after the agreement about what is vested, is the “Remedies/Referendum” section. If the City breaks the agreement, what happens. This does not create new vested rights. The vested rights are defined in paragraph 1 and 2.
This remedy section says what will happen if the City does anything to impair the “vested rights” set forth in paragraphs 1 and 2 above.
Again, the RATE of development (number of units per year) is not included in the vested rights.
“Remedies/Referendum . . Any action that deprives, revokes, diminishes or impairs the vested rights provided herein shall entitle owners [Big Sky/CDN] to . . . [remedies – either make the City follow the “agreement” or make them pay money damages]” . . . “Any zoning or land use action by the city or pursuant to an initiated measure which would alter, impair, prevent, diminish, impose a moratorium on development, or otherwise delay the development or use of the property as set forth in the Site Specific Development Plan . . . shall entitle [Big Sky/CDN to claim remedies from the City].
So, if the City did something to change the total number of units allowed (1,630) or the total number of years (25) – that would violate the agreement.
But the SGI regulating the RATE (number of permits per year) does not change the total 1,630 number or change the number of years (25). The RATE (number of units per year) simply is not part of the “vested rights” contained in the “Site Specific Development Plan”. By definition.
And Big Sky/CDN of course knows this – that is why they are asking you for this new ordinance – to fill in that blank.
Note, Big Sky/CDN has to also show good faith if they want to get a court order. Sitting on their hands with inactive districts and wasting time by failing to follow the rules for obtaining sewer is not good faith – the failure to timely pursue the development is on them – not the City.
Probably the most important and immediate point is this:
Why now. Step back. There is no problem. There is no emergency or fire to put out.
If Big Sky/CDN went to court tomorrow demanding an injunction because they can’t build 1630 units in 25 years because of the SGI, the Court is going to ask:
Q. Well, have you applied for any permits.
A. Uh, no
Q. Why not.
A. Uh, we aren’t ready to build yet
Q. So, the City hasn’t denied any permits.
A. Uh, no
Q. Then why are you wasting my valuable time, the City’s valuable time and resources and the residents patience.
A. Uh . . . Because we want to sell the land and make more money by having a guarantee that the future owners can do whatever they want to whenever they want to, if they ever get around to doing what they need to do to build houses.
Q. Case closed and don’t you ever come back to my court with this kind of frivolous lawsuit again. Costs awarded to the City.
. . .
Dave, thank you for confirming in your letter that Big Sky/CDN’s request for this new ordinance and their threat to sue was prompted by the fact they have a buyer in line for the property and that the sale will have more value to Big Sky/CDN if you are able to get this ordinance passed for them.
I believe I have addressed the merits of your response. If not, please let me know right away. This is an important issue and our open and genuine debate about the issues will help advance a fair and thoughtful resolution.
You did have a couple of minor issues with my blog – that scenario 1 is the opposite of the proposed ordinance (scenario 2) – yes, that is correct. Your scenario 1 is giving Big Sky/CDN what it wants and penalizing the citizens with a higher limit of allocations. Your scenario 2 is giving Big Sky/CDN what it wants and penalizing the other developers. I think you confused your two scenarios.
I already addressed the “exemption” issue – again lets call it Big Sky/CDN’s “big break”. And I already addressed the “leadership” issue.
Dave and Barb, thank you again for your thoughtful response. The continued debate can only help bring fresh air and sunshine to the issues and allow everyone to see what’s going on and decide for themselves what is the best public policy.
John
Blog readers – here is the full text of the letter from Barb and Dave:
I will continue to report on the ongoing debate as there are new developments. Again, the new ordinance will be presented July 27, 2020 at the Lakewood City Council meeting.
John Henderson