Rooney Valley News

 

 

The District Court ruled on one of many pending motions on May 6, 2021.  Big Sky v. Green Mountain and all the related Rooney Valley developer cases, including Cardel and the Three Dinos – Dismissed.  All of it.

 

 

1. First, recognition for those who made a difference

              and then details about the decision.

 

It was a long journey for Jeff, Alex, Adrienne and the community.

 

Jeff, Alex and Adrienne provided the leadership.

 

Stabilizing the issue and putting everyone on notice that the board was reviewing the Big Sky IGA.  Obtaining new counsel.  Further investigation, research, analysis and review of the Big Sky IGA.  Multiple public debates and a hearing on the Big Sky IGA.  Eight months of working through the issues and trying to resolve the issue with Big Sky.  Finally, after Big Sky refused to work with the District and Lakewood refused to address the issue, termination of the Big Sky IGA.

 

Many many many folks deserve congratulations for all their hard work in representing the community on this issue.  

 

Jeff Baker, Alex Plotkin and Adrienne Hanagan for daring to ask the question “what is this Big Sky IGA thing”.

 

For daring to question the attorney at the time, who had long and strong connections to counsel for the Rooney Valley developers, particularly Charles Norton.

 

For daring to question the manager at the time who consistently tried to sabotage their efforts to evaluate the Big Sky IGA and openly defied and ridiculed them.

 

For being willing to reach out to the community for help.

 

The current manager and the hard working staff and crew at Green Mountain Water and Sanitation District for having the patience to work with a board often times distracted by the litigation issues.   And for providing all the extra support, analysis and expert advice to help them make responsible decisions about the litigation.

 

Karen Morgan and Rhonda Peters, who joined the board after the lawsuits were filed, for having the patience and courage to get up to speed and work with Adrienne, Jeff and Alex on managing the legal issues and litigation “business”.

 

Rita Bertolli, Deborah Romero, Imara, Lynn Judson, Mary Gilkison Carol Baum and Dave Weichman and many others for being there to support the board members, providing help in doing research and in providing a sounding board for the board members individually (and never more than two at a time)

 

Rita in particular was an unsung “hero”.

 

Linnea Hauser and Eric Brown for providing additional support.

 

I know I am missing folks and apologize for not including them.  It was truly a community effort.

 

And what ultimately was the point and the goal.  Everyone had their own perspective.  From my perspective,  giving the community a seat at the table – a voice – in deciding public policy.  As the Court ultimately ruled, the election night Big Sky IGA robbed the residents of the community of their right to vote.  The right to be heard.  The right to participate in fundamental decisions about their community.  

 

Alex, Jeff and Adrienne fought to preserve your right to vote and they won.

 

And to be perfectly clear, the plaintiff developer community have a right to be heard as well.  And Alex Plotkin, Jeff Baker and Adrienne Hanagan listened to them and heard them.  But it is not an exclusive right.  Unlike other elected officials, these three decided to also listen to the folks who actually live in the community they represent.

 

And the plaintiff development community, particularly Big Sky, Cardel and the Three Dinos were heard.  They exercised their “right” to try to push through election night agreements without a hearing.  They exercised their  “right” to intimidate citizen elected officials with threats of litigation.  They exercised their “right” to mislead and bully the citizen elected officials.  They exercised their “right” to sue.  They exercised their “right” to make false claims to the Board and the Court.

 

Of course it goes without saying that the attorneys who represented Alex, Jeff and Adrienne deserve credit for identifying as many issues as they could, presenting those issues and pressing the case.  To be sure, they were hired to do a job and were paid well.  But they also deserve the community’s thanks.   Jo Timmons, Scott Gessler and their staff and paralegals.

 

Those following this case closely know that there have been problems.  This was a stressful case for everyone.  

 

And there was an overwhelming  full court press to settle from all quarters.  

 

But several brave residents (Linnea Hauser and Lynn Judson come to mind) stood firm and continued to maintain that “we have a good case and can win”.   Apparently the Judge thought so too.

 

And perhaps in a strange sort of way those who kept the board from addressing the settlement issues meeting after meeting did everyone (except the plaintiffs) a favor of delaying a decision on settlement – until the Judge could rule on the motion.

 

 

But at the end of the day,  to  the three board members who dared to ask the question “what is this Big Sky IGA thing”

 

who dared to stand up against the ridicule and criticism of their own counsel and manager

 

who dared to look the wealthier, politically stronger, Rooney Valley developers and their legions of attorneys in the eye and question their misrepresentations

 

who sacrificed thousands of hours away from their families

 

who withstood the abusive conduct associated with the litigation

 

For Alex and Jeff  in particular who withstood the abusive conduct in the depositions

 

To Jeff, Alex and Adrienne who dared to fight relentlessly so you all could have a voice, a seat at the table

 

The community owes an incalculable debt of gratitude, an immeasurable amount of respect and a genuine and often repeated simple “thank you”.

 

A final note regarding the resident contributions.  Many residents were attacked with subpoenas demanding information from their personal email accounts regarding communications with the board and each other about the Big Sky IGA.

 

This was clearly calculated by the plaintiff developers as a way to suppress public involvement.  If you are going to be forcibly involved in litigation by participating in local civil affairs, you will think twice about getting involved.

 

Unfortunately, the business model followed by the plaintiff developers relies heavily upon a one way conversation between them and the elected officials.  They don’t like public hearings and they don’t like meddlesome citizens.

 

It works.  Many citizens are afraid to participate in local government for fear of being drawn into litigation.  Look at what Cathy Kentner had to endure.

 

The board should consider compensating those who hired an attorney to represent them and defend against these abusive intrusions into their private communications.

 

 

2.  The Court Decision

 

Here is the bottom line excerpt from the decision (emphasis added and clarifying information in brackets.  Paragraphs are added to make for ease in reading).

 

“IV. CONCLUSION

A. Order on Cross-Motion for Summary Judgment

 

In conclusion, the Court has received the IGA and the affidavit of Adrienne Hanagan as evidence demonstrating that there is no material dispute that the IGA violates the LBGL, violates TABOR, and precludes a promissory estoppel claim.105

 

In response, Blue Sky [Big Sky] provides improper evidence of an interpretation of the IGA that contradicts its plain meaning.106 As such, even when making all inferences in its favor, Blue Sky [Big Sky] fails to meet its burden of demonstrating a genuine dispute of material fact for trial.107

 

Ultimately, one set of taxpayers in this scenario will have to bear the effect of the void IGA.

 

According to LGBL and TABOR, the law primarily focusses on protecting the taxpayer’s right to vote and participate in the budget process. Because the IGA denied the taxpayers of Green Mountain their right to vote, the law shifts the harm to Blue Sky [Big Sky] —a consequence of the burden and risk they accepted in contracting with another government entity.108

 

Although this unfortunately forces the taxpayers of Blue Sky [Big Sky] to suffer a monetary loss, the strictness of the law makes little to no exceptions to the rules when protecting the right to vote.

 

[Note there are currently NO residents in Big Sky – the only “taxpayer” is CDN – a Canadian real estate speculator – who also owned Solterra before selling to Carma/Brookfield.]

 

Therefore, the Court GRANTS the Cross Motion for Summary Judgment.109 The Court enters JUDGMENT in favor of Defendant Green Mountain and DISMISSES all of Plaintiff Big Sky’s claims.

 

B. Effects on Developers

The Court, sue sponte, [on its own with no motion from anyone] reviews the effects this Order has on the claims of the Developers who are the remaining Plaintiffs in this case.

 

The Developers brought claims related to breach of contract. Breach of contract and breach of the implied covenant of good faith and fair dealing claims “require a valid contract.”110

 

Because the Court found the IGA void as a matter of law, it follows that all claims brought by the Developers as third-party beneficiaries for breach of contract and breach of covenant of good faith and fair dealing are dismissed as a matter of law.

 

The Court also reviews the issue of standing. “Standing is a jurisdictional prerequisite that can be raised any time during the proceedings.”111 On October 26, 2020, the Court ruled on a motion to dismiss brought by Green Mountain against Developers, stating “the factual allegations of Developers’ complaints along with the language of the Big Sky IGA create an issue of fact regarding Developers’ status as third-party beneficiaries of the Big Sky IGA, and therefore the Court cannot grant Green Mountain’s Motions to Dismiss as to the standing of Developers.” Without the IGA, the Court concludes that the developer Plaintiffs lack standing against Green Mountain.

 

However, because Green Mountain brought this cross motion against Big Sky specifically [and not the other developers] , the Court ORDERS that the Developers have 21 days to file a response to this ruling should they wish to argue for their standing in the case. Green Mountain will then have 14 days to file any replies.

SO ORDERED in Golden, Colorado on May 6, 2021.
BY THE COURT:

Jason D. Carrithers
District Court Judge”

(emphasis added and clarifying information in brackets.  Additional paragraphs added for ease of reading)

 

 

Here is the full decision, including the footnotes to portions of the record and case citations:

 

Order_ Cross Motion for Summary Judgment

 

 

Here is a brief description of the history of the issues raised and decided by the Court.

 

1. Prior counsel to the board, Brian Matise first raised the TABOR issue in a letter to Big Sky attorney Charles Norton as to whether or not the Big Sky IGA violated tabor because it imposed a multi-year financial obligation which had not been voted upon by the Big Sky voters.  “To the extent these are multiple fiscal year obligations of District No. 2 under TABOR, voter approval may also be required. I have not yet researched whether this is required but I raise this to insure that we consider it.”

 

2.  He repeated the issue in a letter to Lakewood.  “There also does not appear to be any specific voter authorization by the taxing district (Big Sky No. 2) for what appears to be a multiple fiscal year obligation imposed through Big Sky No. 1. Nothing in your analysis deals with this.”

 

3.  Current Counsel, Jo Timmons was retained in February, 2019.

 

4.  The Resolution terminating the Big Sky IGA on April 9, 2019, reviewed by counsel and voted on by Alex Plotkin, Jeff Baker and Adrienne Hanagan stated, among over a dozen other reasons: “WHEREAS, numerous fees contemplated in the Big Sky IGA may be properly considered a tax under Colorado law and create violations of TABOR, Colorado Constitution Article 10 Section 20; and . . .”

 

5.  In September, 2019, Jo Timmons filed a motion to dismiss which raised issues regarding the failure to comply with the Local Government Budgeting law – that requires an appropriation by the government entity (Green Mountain) to fund future expenditures in an intergovernmental agreement before it is a valid agreement.  If there is no appropriation of money, there is no agreement.

 

The motion also presented the promissory estoppel argument – Big Sky cannot claim to rely on a contract that was void from the beginning.

 

6. That motion was refilled  as a motion for summary judgment in January, 2021.  The TABOR argument was included in the motion for summary judgment.  (Perhaps Mr. Gessler contributed to that decision as well.)

 

The TABOR argument, again, is that Green Mountain could not commit to multi-year obligations (a commitment to pay for something longer than one year) without a vote of the residents.

 

7. Note that there were a multitude of other issues raised in various motions, including whether or not Green Mountain or Big Sky had authority to unilaterally expand their service areas.

 

8. But, the Court chose these issues addressed in the January motion for summary judgment, and as quoted above, the Judge found that:

 

1.) there was no dispute as to a material fact establishing

 

2.) that the Big Sky IGA obligated Green Mountain to spend money that had not been put in a budget (no appropriations) in violation of the Local Government Budget Law and

 

3.) that the Big Sky IGA also obligated Green Mountain to make payments beyond one year in violation of TABOR and

 

4.)  Big Sky could not rely on a void contract and

 

5.)  Since all the other Rooney Valley developers’ claim against Green Mountain was dependent upon the Big Sky IGA and the Big Sky IGA was void from the very beginning, their claims were also fatally defective.

 

Case dismissed.  All of it.

 

John Henderson