Much has happened in the lawsuit filed by Big Sky and the group of Rooney Valley developers to force Green Mountain Water and Sanitation District to set up Big Sky as the new sanitation district for Rooney Valley.
The last update was in May:
Here are the current updates:
1. The first trial is set for March 15, 2021.
2. Mediation, required by the Courts, is set for January 15, 2021.
The mediator will be retired Judge Larry Naves. Here is his biography: https://www.nadn.org/larry-naves
3. Currently the developers and Green Mountain are obtaining information from each other – discovery. Taking depositions and collecting documents.
4. At the time of the last update, Green Mountain had filed an appeal from the trial court’s decision that the developers did not wait too long to file the lawsuits.
The Court of Appeals decided to wait until after trial to decide whether or not the developers waited too long to file their lawsuits.
This position by the Court of Appeals is not unusual – the court of appeals generally will not start to review what the trial court did until all the issues are decided “once and for all” in the trial court.
5. The judge originally assigned to handle the case retired. Other judges are filling in as issues come up that need to be decided. A trial judge will obviously be assigned at some time prior to March 15, 2021.
The issues have not changed. The principle issue is who will decide land use policy – in this case – creation of a new sanitation district.
Developers alone
or
Developers and folks who live in the community (residents and voters) – together.
Until May 8, 2018, the developers had significant influence over the Green Mountain Board. On May 8, 2018, the developers forced through the Big Sky IGA – voted on by the Green Mountain Board the very night their majority was being voted out of office.
The developers anticipated the new members might not be as easily influenced as the prior board members. The developers were soon offended that new resident board members were critically evaluating what the prior board had approved when the prior board members were being voted out of office. In the words of their attorney “sounding an alarm” in an August 23, 2018, email: (disclosed in an unrelated CORA request):
” . . . an anti-development group has gained control over the Board of Directors at Green Mountain. Green Mountain has issued an RFP for special counsel to analyze the validity of the sanitary sewer service agreement between Big Sky Metropolitan District and Green Mountain.”
Beginning in June, 2018, the developers fought to maintain their influence over the Green Mountain board through the Boards’ prior attorney and business manager. They also threatened the Green Mountain Board twice and refused to address key defects with the Big Sky IGA as requested by the Green Mountain board.
Who makes public policy regarding the creation of a new sanitation district?
Developers alone?
or
Developers and residents, together?
The Green Mountain Board heard many public debates regarding the issue for 8 months and, after listening to both the residents and the developers, decided to terminate the Big Sky IGA on April 9, 2019.
In a recent brief, Cardel, parroting Big Sky, argued the factual question that a jury must decide in this case: “Green Mountain’s actions were improper, arbitrary, and capricious . . . “
Was the Board’s decision to terminate the Big Sky IGA “arbitrary and capricious”? That is the issue.
The developers’ (including Cardel) position is that the Green Mountain board’s decision was arbitrary and capricious because they are . . . well . . . “anti-development”. Because, says Big Sky (paraphrasing), “they don’t like us”.
In these developers’ world, if you want decisions made by developers and residents working together, not just developers alone, you are “anti-development”.
In these developers’ world, if you listen to both the residents and the developers, not just the developers alone, you are “arbitrary and capricious”.
Arbitrary and capricious essentially means the new board didn’t critically evaluate the Big Sky IGA and didn’t have good reasons to terminate what the prior board approved the night they were being voted out of office.
Here is the resolution terminating the Big Sky IGA:
Green Mountain Adopted Resolution Termination Big Sky IGA April 9, 2019
In sum, the Board found, after careful study, that the process was defective, the document was defective, there was risk to the district and it was in the public interest to terminate the Big Sky IGA.
Thats what boards are elected to do. And they did it after listening to both the residents and the developers.
But Cardel continues to argue, parroting Big Sky, “not a single residence or business can be built on the property without the provision of sanitary sewer services [by Green Mountain] to collect and dispose of wastewater Green “. They argue that unless the Big Sky IGA is enforced, they cannot develop. That is why they sued Green Mountain.
But, that assertion is not accurate. Green Mountain is not the only source of sewer service. And, instead of suing Green Mountain, they could have worked with Green Mountain to get sewer by working with the public interest, not against the public interest.
And the developers knew the risk. That is why they jammed through the election-night agreement before they lost their favored board members to a new election.
There are at least five ways to obtain sewer in the Rooney Valley without the defective Big Sky IGA. Several don’t have anything to do with Green Mountain and none of them rely upon a defective Big Sky IGA. All require a public hearing.
1. All the Rooney Valley properties were originally part of the Mt. Carbon Metropolitan District. After Mt. Carbon emerged from bankruptcy, it was limited to providing water and sanitation services to Rooney Valley, including all the land owned by the developers in these cases. The developers were all set to get sewer from Mt. Carbon.
For some reason, Big Sky and the other developers decided they did not want to get sewer from Mt. Carbon. So they formally and legally withdrew from (excluded themselves from) the Mt. Carbon Metro District.
But that was their decision. They already had access to sewer from Mt. Carbon and decided to go in a different direction.
They can still get sewer from Mt. Carbon and reverse their exclusion from the Mt. Carbon Metro District – their future residents will still be obligated to pay the Mt. Carbon bankruptcy “tax” one way or the other.
2. The developers can also apply to the City of Lakewood to modify the Big Sky Service Plan to increase the Service Area for Big Sky and expand the purpose of Big Sky, to establish Big Sky as a new sanitation district for Rooney Valley. But it requires a public hearing and Big Sky’s group of developers don’t like public hearings – they prefer the decision to be made with input by the developers alone.
3. The developers can also work with Green Mountain to be formally included within the Green Mountain Water and Sanitation District as to sanitation services. This would formally enlarge the Green Mountain District physical boundaries to include Rooney Valley.
Since Solterra is not formally included in the Green Mountain territory, it would make sense to include them at the same time.
Once the Rooney Valley development areas are part of Green Mountain’s Service Area, Green Mountain is obligated to provide them with sanitation service. But this also requires a public hearing – making the decision with public input – not just the developers alone.
4. The developers could also work through the process in Title 32 for the creation of a new sanitation district. Again, this would require public hearings – making the decision with public input – not just the developers alone.
5. The developers could work with Green Mountain to have Green Mountain apply to the City of Lakewood and or Jefferson County modify Green Mountain’s Service Plan to permit Green Mountain to provide services outside the limits of its Service Plan and Service Area. This would also require public hearings – making the decision with public input – not just the developers alone.
There may be other ways to do it as well. But what is clear is that there are several ways to obtain sewer without Green Mountain’s involvement and at least five ways to get sewer without relying upon the defective Big Sky IGA.
The case will probably be resolved with a settlement or trial within the next 8 months.
The next update will likely be an announcement to the court regarding the results of the mediation session – as to whether or not the case will be settled or go on to trial.
John Henderson
(Disclaimer – This blog is solely my analysis and does not attempt to represent the position of the Green Mountain Water and Sanitation District or any individual member of the District. The Board was not aware of and did not have an opportunity to review this blog. I have been asked on occasion to provide advice and counsel to the board on a pro/bono basis but this blog, again, is independent of any consulting role I may have provided. All of the information contained in the blog is based upon public information or analysis independent of any consulting role I may have provided to the Board.)