Significant developments and a new majority forming on the Green Mountain Water and Sanitation District Board leaning toward settlement? Question mark. Coyness and executive sessions make it hard to tell.
Karen Morgan, the new president (well deserved), has been consistently clear and transparent. So has Dave Wiechman. Implementing a public mandate against service outside the district.
Not so much Todd Hooks, Roger Wendell and (newly elected but interim a year ago) Dave Garner. Coyness and question marks.
But we’ll find out soon. They have some decisions to make.
Here’s what we know.
1. Cardel recently decided to apply for a new metro district (they failed in 2018) for its Rooney Valley project just south of Big Sky.
In their proposed Service Plan, Cardel makes clear they are planning on sewer from Green Mountain or directly from Denver Metro.
No mention of the sanitation district they actually fall in and where Red Rocks Centre is getting their sewer – Mt. Carbon.
From Cardel’s Service Plan:
” It is anticipated that sanitary sewer service to the property within the District will be provided either by Metro Water Recovery (formally known as the Metro Wastewater Reclamation District) (“Metro”) or Green Mountain Water & Sanitation District (“Green Mountain”) pursuant to one or more intergovernmental agreements among them, however the final means and parameters of such service have not been finalized as of the date of this Service Plan.”
Here are more details:
Cardel Homes Metro District Application – Indigo in Rooney Valley
2, On Friday, June 23, the Court in the Big Sky litigation held its first status conference since the appeal and Cardel presented a new attorney who dominated the hearing.
Cardel’s making a strong play and Green Mountain is the target.
The usually dominant Big Sky and CDN attorneys (same with two attorneys – Big Sky is CDN’s metro district for their land north of Cardel’s property and west of Solterra) sat passively by while Cardel’s counsel ran the show.
Where was Green Mountain’s counsel for the Big Sky Court hearing? Sadly all he could do was smile and put his thumb up in the air because his mic did not work.
The Judge, with a slight annoyed edge to his voice, repeated no one could hear him as he mouthed some words. Not a good first impression with the Court, opposing counsel or the client, Green Mountain.
Cardel’s counsel explained to the Court that HE had talked with his plaintiff co-counsel and that HE had talked with Green Mountain’s counsel and HIS plan was to get everyone together and try to agree on a plan to resolve the Big Sky case.
Green Mountain’s counsel smiled with his thumb in the air.
Three options are (there could be more or variations):
- First, get on a mediation track to settle
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- This is likely the plaintiff’s preferred route
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- Cardel’s new metro district advertising Green Mountain sewer as their sanitation provider is not coincidental.
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- With a new majority on the board more inclined to provide sewer outside the district boundary that could easily be the result.
- Second, finish the summary judgment motions. The Court of Appeals sent the case back to the District Court because the Court of Appeals did not have enough facts to confirm the District Court’s decision to dismiss the case.
Here are more details:
Court of Appeals Sends Big Sky Case Back for More Factual Findings
- Third, get ready for trial (likely coupled with mediation to put maximum pressure on Green Mountain to settle) Green Mountain has a lot of discovery they need to do.
There are more details to the options of course but these are the basic alternative courses.
What is Green Mountain’s plan. Other than smiling with a thumb up in the air, they are meeting in executive session tonight to discuss it.
Stand by.
- But make no mistake. Cardel smells blood in the water.
- New Cardel application for a metro district with Green Mountain providing sewer.
- New Cardel counsel taking the lead in the Big Sky case.
- New Green Mountain majority interested in settlement? Question mark.
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- Hard to tell but maybe Cardel knows something we don’t know.
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- We have to assume they are working on the new members to settle.
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- The new majority (Hooks, Wendell and Garner) haven’t said much. Coyness and executive sessions. Hooks said nothing about it during his recent campaign but during public meetings seems focused on how much money Green Mountain can make instead of the public policy considerations (unaccountable private developer selling sewer in Rooney Valley for a profit – see Big Sky IGA) Garner is new since May although he served on an interim basis a year ago.
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- Morgan and Wiechman have consistently fought not to provide service outside the district without a clear mandate from their constituents to do so. They have been completely transparent and clear where they stand.
3. Then there is the Brookfield play to get service they are not entitled to outside the Green Mountain District. (They call themselves “Solterra LLC” to confuse folks that they represent Solterra. Wolf in sheep’s clothing. Brookfield all the way.)
- A Brookfield litigation shotgun to Solterra’s head
- prompting Solterra’s Board (who have already said they will pay Brookfield more bond debt) to plead with Green Mountain to
- give Brookfield more sewer permits outside the district even though the special exception IGA Brookfield wrote which allowed service outside the district (2008) expired.
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- Brookfield does not have a right to sewer from Green Mountain because its development is outside the Green Mountain district boundary
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- They had the right through a 2008 IGA – which Brookfield wrote. But that IGA expired January 15.
The shotgun: Brookfield is suing Solterra Board to force faster payment for more Brookfield profit through issuing more bond debt.
Here are the details:
Brookfield is also suing the Solterra Board (Fossil Ridge Metro District – they frequently name the district different than the development to make it harder to find documents) to force the Solterra Board to force Green Mountain to give Brookfield more permits.
Has Brookfield told Solterra they will drop the shotgun lawsuit to accelerate issuing more bond debt if Solterra can convince Green Mountain to give Brookfield service they are not entitled to outside the district. Don’t know. But it’s a good question.
(In 2017, Brookfield held a gun to the Solterra residents’ head and said they would not resign their employees from the residents’ board seats unless the residents agreed to pay them another $30 million in bond debt. We recalled them instead)
Brookfield’s lawsuit against Solterra is really a silly case. Brookfield is arguing that since they mentioned Green Mountain would probably provide the sewer in the Solterra (Fossil Ridge) Service Plan, that the Service Plan requires that Solterra make Green Mountain give Brookfield service outside the district.
BUT IT DOESN’T HAVE ANYTHING TO DO WITH THE SERVICE PLAN. THE 2008 IGA IS THE ONLY REASON GREEN MOUNTAIN PROVIDED SEWER TO BROOKFIELD. AND THAT 2008 IGA TURNED INTO A PUMPKIN JANUARY 15, 2023. GREEN MOUNTAIN WAS NEVER A PARTY TO THE SOLTERRA SERVICE PLAN.
The Court set the Brookfield v. Solterra case for hearing today (June 28). All the witnesses and exhibits were ready to go.
But at the last minute, Brookfield and Solterra told the Court that Brookfield could not get what they wanted unless Green Mountain was in the case.
So on Friday they asked the Court to add Green Mountain to the case and postponed the hearing (no new date). And Monday morning, the Court signed the order doing what they asked.
Here is that pleading and the Court Order:
2023-06-26 16-39-49 Redline (Motion) (6-26-23)
Order_Granting Unopposed Forthwith Motion to Join Party and Continue Hearing
So now, Green Mountain is in the case. And the board will have to decide whether to:
- Settle and give Brookfield new service outside the district boundary it is not entitled to because it will cost Green Mountain money to defend itself
- Or fight to uphold the position that service will not be provided outside the district until after an amendment to the Green Mountain Service Plan with public hearings on whether or not to provide service outside the district.
To be sure, the past 5 years have been an interesting study.
- Up until 2018, Green Mountain had been an arm of the developers. The developers were the client and the district was there to service the developers.
- The Green Mountain board in 2018 even went so far to service the developer as to approve an incomplete IGA the very evening they were being voted out of office.
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- An IGA which created a new “master meter” sanitation district for all of Rooney Valley to be run by the Big Sky directors with profit to the developer for selling sanitation hook ups to other developers outside the Big Sky district.
- Then as the old board was signing the Big Sky IGA for the developer on election night May, 2018, three new residents were elected and dared to ask “what is this thing” – the Big Sky IGA. They put things on hold, studied it, tried to work it out (have Big Sky get permission to amend their service plan to become the new “master meter” for Rooney Valley), Big Sky threatened to sue and the three residents voted to terminate the Big Sky IGA. Alex Plotkin, Jeff Baker and, initially, Adrian Hanagan. They are now gone. After years of successfully negotiating many challenges – with significant help from Karen Morgan.
- The Green Mountain Service Plan limits service to the Green Mountain district.
- That can be changed.
- And maybe it should be.
- But not in election night votes without a public hearing.
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- And not in executive sessions without a public hearing.
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- And not without a clear vetting of the pros and cons –
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- not measured by how much money Green Mountain can make –
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- but measured instead by what is in the best interests of the residents of Green Mountain.
Hopefully the new majority will find their voice.
And along the way listen to the residents.
Which means the residents have to let them know what you think.
Settle with Big Sky and Brookfield. Or one or the other. Or not.
Cardel and Brookfield are working hard to make it happen.
Maybe it’s for the best. The developers are lawsuit happy and it costs a lot of money to fight them. Maybe it’s time to lay down and give up. The Solterra board did in 2017 after the residents recalled the developers off the board.
What do you think.
The Green Mountain Board meets tonight for an executive session. But there is public comment beforehand. 3 pm
https://us06web.zoom.us/s/89533225776#success
And here are their emails:
karen.morgan@greenmountainwater.org
david.garner@greenmountainwater.org
todd.hooks@greenmountainwater.org