The developer induced chaos at the Green Mountain Water and Sanitation District continues, with pro-development advocate Christopher Arlen leading the way, assisted by Brenda Bronson, Rita Bertolli and Kathe Odenweller.
And don’t forget the 75 percenters – the non-residents who were paid to collect 75% of the signatures for the Arlen/Bronson/Bertolli and Odenweller recall petition.
Here is the latest:
1. Arlen/Bronson/Bertolli/Odenweller “ABBO” filed a new lawsuit.
They filed it on their own, pro se.
It falsely claims that more than two of the board members met in illegal meetings and that the board made final decisions in executive sessions run by Counsel Timmons. It frivolously alleges violations of the Open Meetings Law.
ABBO demands a Court Order to the Board not to replace Counsel Timmons, and a Court Order to stop an RFP to obtain counsel to assist with the day to day operations.
(The Board continues to state they are not replacing Timmons as counsel on the Big Sky litigation – only obtaining counsel to address Title 32 operational issues which have not been addressed during the litigation).
Essentially ABBO wants the Court to run the District the way ABBO wants to run the district until ABBO can persuade enough voters to replace three Directors in a recall election later this summer.
ABBO wants to run the district. Here, again, is what that looks like:
As a result of ABBO’s new pro se complaint, the Board will now have to retain another attorney.
Here is the new complaint:
Complaint Under Colorado Open Meetings Law
Here again is the Open Meetings Law:
relevant excerpt:
“. . .The public place or places for posting such notice shall be designated annually at the local public body’s first regular meeting of each calendar year. The posting shall include specific agenda information where possible.”
“b) All meetings of a quorum [3/5] or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.”
“B) If, in the opinion of the attorney who is representing the local public body and who is in attendance at an executive session that has been properly announced pursuant to subsection (4) of this section, all or a portion of the discussion during the executive session constitutes a privileged attorney-client communication, no record or electronic recording shall be required to be kept of the part of the discussion that constitutes a privileged attorney-client communication.”
full text:
The good news is that the District should be able to recover attorneys’ fees from ABBO for the false allegations and frivolous claims of violating the Open Meetings Law.
2. Due to the “appearance of impropriety”, the District Court replaced Director Hanagan with Sue Blair as the new “designated election official”
The Court also “tolled” the timelines which meant the deadlines for filing the recall petition, collecting signatures and certifying that there were at least 300 qualified signatures started over on the date of the Order, June 3, 2021.
Here is the Order:
Order_ Designation of Election Official
This was important because even though the Court removed Director Hanagan on May 28 as the DEO, she defied the Court Order and went ahead and certified the petitions as sufficient at the request of ABBO:
2021-06-02 Recall Certificate of Sufficiency for June 2,2021
The new designated election official, Sue Blair, with no allegiances to ABBO, will make an independent evaluation as to whether or not the signatures qualify and she will also decide any disputes.
The result may be the same but making sure the process is free of any “appearance of impropriety” is equally if not more important.
Assuming the signatures are sufficient, there will be a recall election between 30 – 60 days following the expiration of the date for objections, currently set next week.
Here is a timeline for the recall process:
So, there will be a recall election for three directors in late July, or mid August.
First question on the ballot – do you want to replace Director Karen Morgan, Alex Plotkin or Jeff Baker.
If the answer is “no”, then that is the end. They remain directors on the board until the next election in May, 2022.
If you vote “yes” to remove them from the board, the second question is who do you want to replace them. You will have a list of people to vote for. Those people “self-nominate” – put themselves on the ballot at least 15 days before the election.
3. The Developer Plaintiffs filed a Response to the Court’s Order Trying to Persuade the Court that the Court’s Decision should be reversed, or that the third party developers should be able to keep going even without the Big Sky IGA.
True to form, the attorneys, particularly Attorney Durling, continued to mislead the court on several issues.
First, as Attorney Durling has stated in open court, two directors met “in secret”.
By definition under the Open Meetings Law, there is no meeting recognized by the statute if two members get together. It is not a “meeting” that the law cares about.
The only “meetings” that must be advertised to the public are “meetings” of more than two members. And, a meeting can only be “secret” if there is an obligation to advertise it. Under the Open Meetings Law there is no requirement to advertise and invite the public to a “get together” of two board members.
Second, Attorney Durling repeats again, “Without sewer service [from Green Mountain], CDN [Big Sky] cannot construct a single home or business on its property and cannot complete a sale to an interested purchaser [Lennar Homes] for millions.”
The Three Dinos even went further – the resolution terminating the now illegal Big Sky IGA, “obliterate[d] the ability to develop the Property for its permitted uses and to convert it to de facto open space.”:
Attorney Durling and the Three Dinos go out of their way not to tell the court
1.) that there are several ways to get sewer without Green Mountain and
2.)that Green Mountain did not have a legal obligation to provide service outside the boundary of their district.
Attorney Durling and the Three Dinos went out of their way not to tell the Court that they have their own district – Mount Carbon.
That Mount Carbon is the designated sanitation district for their area and is in fact providing sewer already to Red Rocks Centre.
They do not tell the Court that CDN/Big Sky and Three Dinos took themselves out of the Mount Carbon District and can put themselves back in the district.
Neither do they tell the Court that there are several other ways to obtain sewer.
Finally, they steadfastly refuse to explain to the Court that Green Mountain has no obligation under their Service Plan, Rules and Regulations and Title 32 to provide service outside its boundary.
Third, Attorney Durling continues to misrepresent the testimony about emails. Inaccurate statements which Counsel Timmons has also used to attack Board members in public to defend her high legal bills.
Inaccurate statements from Counsel Timmons which of course are now being repeated by the developer plaintiffs – using Counsel Timmons’ own words against Counsel Timmons’ own clients:
“GM’s counsel Ms. Timmins recently stated at a public GM board meeting that board members “destroyed evidence in this case. That has caused us an enormous amount of legal maneuvering and posturing now. That has run up our [my] legal bills!” Ex. 19 at 36 (Apr. 13, 2021 GM board meeting trans.).”
Not surprisingly, not everyone had all the emails but the plaintiffs eventually collected all the emails from everyone they could think of.
Now that they have all the emails from all the citizens and board members, what did they find.
What is so important about these emails – what “smoking gun” evidence do they contain.
That residents talked with each other and their elected representatives about public issues. What a big surprise.
All they had to do was read the hundreds of pages of blogs on this site during that time to see residents were talking about these issues.
Not only talking about the issues, but also that citizens were doing something about the back room deal passed election night May 8, 2018, to create a new sanitation district without a public hearing and without authority under each of the service plans.
“Information” which is entirely irrelevant to whether or not the Big Sky IGA was illegal.
Very few of these emails would have ever gotten into evidence if there had been a trial because they aren’t important to whether or not the IGA was legal or the Resolution terminating the IGA in April, 2019, was legal.
But the emails do tell an important public service story about the effort of the citizens to get a seat at the table, along with the developer community, to participate in decisions that affect public resources – water and sewer.
The developer plaintiffs campaign to get emails from private citizens was also a deliberate attempt by the developer plaintiffs to harass private citizens and scare them from talking to their representatives and scare their representatives from talking with the citizens. So, of course, the only ones the directors can talk to are the developers. That of course is ok, according to the development community.
(Oh, and for what its worth, the discussion about the Big Sky IGA took place at Rita Bertolli’s invitation at Rita Bertiolli’s kitchen table, not mine. It was a good discussion among citizens and two board members. Nothing “secret” about it.)
Fourth, and most important, the only real two issues before the Court are 1.). whether or not the Big Sky IGA was an illegal violation of the Local Government Budgeting Act and TABOR and 2.). whether or not there are binding agreements separate from the Big Sky IGA.
1.) Violation of the law.
The Court ruled that the Big Sky IGA was illegal.
In their attempt to persuade the Court to reverse its own decision, the developer plaintiffs claim that the Big Sky IGA said nothing about incurring costs for the design and construction of the Big Sky sewer system because Green Mountain would get those costs paid back.
The point that the Court made and the developer plaintiffs conveniently ignore is that local government entities always get “paid back” – because they can’t print money.
The money comes from somewhere.
In this case, under the Big Sky IGA, the money will come from District taxpayers, CDN/Big Sky and kickbacks from future residents (Taxpayers) of Big Sky.
The Budgeting Act and TABOR do not make exceptions for “kick-backs” or reimbursements.
2.) Other Binding Agreements. In an effort to keep their individual lawsuits, the developer plaintiffs now claim that they had their own contracts. Contracts that were not dependent upon the Big Sky IGA. “Will Serve” letters.
Problem of course is that all the “Will Serve” letters were contingent upon the Big Sky IGA as well as agreements from Lakewood and Jefferson County.
If there is no Big Sky IGA, there is no “Will Serve” letter. The “Will Serve” letters are not binding contracts unless all the conditions are met – which included the Big Sky IGA.
So, there you have it.
1. The Court will decide whether or not to reverse its own ruling and whether or not all the developer lawsuits are dependent upon the Big Sky IGA – which the Court has held was illegal.
2. Assuming the signatures on the recall petitions (75% collected by paid non-residents) are legally “sufficient”, there will be an election in mid July – August.
Do you vote to remove three directors and do you vote to replace them with ABBO supporters.
3. Do you support providing sewer service outside the district.
ABBO does. What do you think.
Voting “no” in the recall election will likely say “no” to providing sewer service outside the district.
Voting “yes” in the recall election will likely say “yes”, lets provide service outside the district boundary.
Three directors on the board worked hard to give you the choice as to whether or not to provide service outside the district boundary. You didn’t have that choice on May 8, 2018. But as a result of their efforts, you have it today.
ABBO and the 75% non-resident paid signature collectors want you to get rid of these three directors. ABBO and the non-residents know better how to run the district.
In July/August you get to decide.
John Henderson