Rooney Valley News

 

 

 

Public debate proved its virtues again during the Green Mountain meeting last Tuesday, August 13.  During the meeting, Green Mountain’s counsel in the Big Sky case argued in favor of the developer’s position:  “Buyer Beware” in metro districts.   That is, the burden is on the residents to spend time and money on an attorney or accountant to figure out the developer imposed abuses of metro districts before buying their homes.  

 

This apparent bias is, in this author’s opinion, consistent with the notion that metro districts are there for developers, not residents.

 

• The developer’s convenience in getting paid (including significant profit) is more important than the residents’ right to vote.  

 

• Green Mountain is “just an appliance, like a toaster”, Green Mountains is simply there to do what is most convenient for the developer

 

Which easily translates into “the developer’s convenience in getting sewer from Green Mountain is more important than the residents’ right to decide for themselves what is in their best interests.”    

 

• That the developer’s convenience is more important than the limitations on the governmental powers granted in the Big Sky and Green Mountain Service Plans.

 

 

With this “developer oriented” bias in play, in this author’s opinion,  Green Mountain’s counsel in the Big Sky case must try to overcome this bias and represent the residents’ interests, not the developer’s interest.

 

 

The Courts’ understand the residents’ interests, the Board majority understands the residents’ interests, the question is, does Green Mountain’s own counsel “get it”.

 

 

For example, the Big Sky IGA is not “just a contract”.  It is an IGA. 

 

• Inter Governmental Agreement.  

 

• Which under the statutes MUST  have the permission of the elected body of the government.   It must be approved by an elected public body.  

 

• • Which public body is always accountable to the approval of the citizenry through recall.

 

• Which requirement of approval by an elected body is undermined when the IGA is jammed through by Big Sky and signed by the legislative body the very night the majority of the elected body are being voted out of office.  

 

• • An IGA jammed  through, according to Big Sky’s own attorney’s emails, to lock in the District before the new board was in place, knowing that the new board probably wouldn’t approve the IGA.

 

• Which requirement of approval by an elected body is undermined by a maneuver to essentially cheat the residents out of the representation they’re voting for.   

 

 

Here is how we know the Courts “get it”:

 

• The District Court identified the following several issues related to whether or not the Big Sky IGA was an unlawful creation of an essentially new sanitation district because it changed the purpose and territory of the Big Sky Service Plan   as included in the issues to be decided at trial in its Order setting the case for trial:

 

• • “The validity of the May 5, 2018 Intergovernmental Agreement (IGA) between GM and
    Big Sky.”
  • “The applicability of the Big Sky Service Plan and whether the IGA was within the scope.”
  • “Big Sky’s authority under the IGA and Special District Act.”
  • “Whether GM’s or Big Sky’s obligations were approved by voters and exempt from the
    LGBL.”

 

• The Court of Appeals noted the conspicuous absence of the reasons set forth in the Board’s Resolution Terminating the Big Sky IGA in prior counsel’s presentation of the case:

 

• • “Big Sky and Green Mountain executed the IGA in mid-2018. But less than a year later, the latter’s Board of Directors approved a resolution terminating the IGA. The resolution further declared the IGA void since its inception on a number of grounds (though none eventually advanced in the district court or on appeal).”

 

• • In the above quote from the Court of Appeals decision in the Big Sky case, the Court of Appeals suggested there was  no explanation offered by Green Mountain’s former counsel for “why” the Board terminated the IGA “less than a year later”,

 

• • • like for instance, the explanation set forth in the Resolution,  that the Big Sky IGA unlawfully violated the Big Sky and Green Mountain Service Plans and was jammed through the very night the board approving it was being voted out of office because Big Sky was afraid the new board would not approve the IGA.

 

• And the Court of Appeals also “gets it” when it comes to how an IGA is not “just a contract”:

 

• • “As far as Green Mountain’s promises in the void IGA, then, the case law is clear — “the party contracting with a governmental entity bears the risk that ‘all recovery, including quantum meruit, [will be] denied’ if the contract isn’t valid.” Falcon Broadband, ¶ 41 (quoting Normandy Ests. Metro. Recreation Dist. v. Normandy Ests., Ltd., 191 Colo. 292, 295, 553 P.2d 386, 388-89 (1976)).”

 

• • “And in this case, Big Sky had the duty when negotiating the IGA to ascertain whether it complies with the LGBL. Id. If the IGA is void, then, Green Mountain “cannot be estopped to deny the validity of the contract.” Rocky Mountain Nat. Gas, LLC v. Colo. Mountain Junior Coll. Dist., 2014 COA 118, ¶ 31.” 

 

• • “Accordingly, we conclude that if the IGA is void, the district court was correct to conclude that Big Sky’s promissory estoppel claim fails as a matter of law.”

 

 

Which is all consistent with what other Courts have said about IGAs and legislative bodies: 

 

“Thus, since each respective group of citizenry in the City and County can effect change through the electoral process, it follows that if they are dissatisfied with an intergovernmental contract entered into by their responsible governing boards, they can also exercise their rights by recalling the elected officers who approved the contracts.” Durango Transp., Inc. v. City of Durango, 824 P.2d 48, 52 (Colo. Ct. App. 1991). 

 

Keeling v. Grand Junction 689 P2d 679 (Col. App. 1984)

 

Simply stated, as applied to the Big Sky IGA, a Board being voted out of office and signing a contract jammed through election night to “trick” the residents out of being represented on the issue cannot bind a future board and lock in the “trick”.

 

And if the residents object to an IGA they can always recall the elected body that approved it and vote in an elected body that will terminate it.

 

And not only must the Big Sky Service Plan limitations and Green Mountain Service Plan limitations be enforced (can’t provide service outside the territory and can’t turn a residential development district into a sewer district for all of Rooney Valley without amending the Service Plans), but Title 32 prohibits by-passing Title 32 and creating new sanitation district through an IGA without first amending the relevant Service Plans with public hearings. 

 

 

 

Green Mountain’s counsel is an experienced professional and will undoubtedly succeed in overcoming the “developer oriented” bias he apparently expressed, in this author’s opinion,  last Tuesday.  It may be inconvenient for the developers but it will serve the best interests of the residents who are ultimately who  his client represents.