After public comment, the only agenda item is to discuss the Big Sky litigation.
Why.
- Green Mountain must file its renewed motion for summary judgment in 8 days – next week – November 17, 2023.
- The mediation – settlement – deadline is December 1, 2023.
The Big Sky developers are working over time (as shown in their discovery responses) to persuade the Green Mountain board to settle and provide at least Cardel and Big Sky with sewer service OUTSIDE THE DISTRICT BOUNDARY.
- Even though, as the recent Court held in the Solterra case: ” . . . Green Mountain’s governing documents do not obligate it to provide Fossil Ridge [or Big Sky or Cardel] with sanitation services. . . .”
- Even though the Court of Appeals in the Big Sky case is expecting a new summary judgment motion with a better factual foundation stating: “Rather, we conclude that the IGA is ambiguous in key respects — thus requiring further factual development and precluding a grant of summary judgment on this record.”
- Even though the Court of Appeals in the Big Sky case never got the full story in the first motion for summary judgment stating in their decision:
-
- “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 [of the reasons stated in the resolution were] eventually advanced in the district court or on appeal).”
- Even though the Court of Appeals in the Big Sky case decided that any claim for damages because Big Sky or Cardel thought Green Mountain would provide service (“reliance”) were denied stating:
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- “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.” [citation to case omitted]
[“quantum meruit” is “promissory estoppel” or “reliance” – “we (Big Sky) spent money because we thought Green Mountain would provide sewer”]
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- The Court of Appeals also clearly stated: “As an initial matter, we disagree with Big Sky that its promissory estoppel claim did not depend on the validity of the IGA. The only other Green Mountain promise that Big Sky identifies — its “will-serve” promise to provide Big Sky with wastewater services in a 2015 letter — was expressly subject to “the successful negotiation” of the IGA.”
So, if there’s no IGA, there’s no obligation. And the only damages are from the point that there was an IGA established obligation to the time there is no IGA – reliance.
And according to Big Sky’s budget there were no expenses paid relaying on the IGA from the time it was signed (election night May 2018) until the board suspended the IGA pending a legal review of the IGA in the Declarations issued September 4, 2018 and November 2, 2018 and then terminated the IGA on April 9, 2019.
And even if there were expenses between May and September, 2018, it couldn’t be much . . . . and the IGA is still terminated.
Big Sky and Cardel want sewer, not money. (And they can get sewer from Mt. Carbon or pursue some other source and quit bothering Green Mountain.)
And if there is no IGA . . . . and there isn’t one unless the new board majority writes one by settling with Big Sky and Cardel . . . . . as the court in Solterra said ” . . . Green Mountain’s governing documents do not obligate it to provide Fossil Ridge [or Big Sky or Cardel] with sanitation services. . . .”
The Court of Appeals sent the case back to the District Court for more facts and another decision on a motion for summary judgment which, if the District Court grants again in favor of Green Mountain, will be appealed again by Big Sky and we’ll get a final decision.
But of course, Big Sky and Cardel don’t want to talk about motions for summary judgment. They only want to talk about settlement.
So, what will the Green Mountain board talk about Tuesday night.
- A new summary judgment motion with the facts and arguments that were missing the first time.
- Or settlement, which is what Big Sky and Cardel are pushing for.
Probably both. But because the decision will be made in executive session, we won’t know what they decide to do unless they tell us . . . . or until it happens – like happened with their decision to forfeit the jury trial.
Right now, the only opportunity to let your representatives on the Green Mountain board know what you want them to do is by talking to them individually or at the public comment portion of the meeting tomorrow at 5 pm.
Settle
or
Summary Judgment Motion.
NOTICE OF SPECIAL MEETING GREEN MOUNTAIN WATER AND SANITATION DISTRICT
November 07, 2023
https://us06web.zoom.us/j/89533225776
Or call +1 669 900 6833 and enter the Meeting ID.
Meeting ID: 895 3322 5776
https://files.greenmountainwater.org/2023_1107_GMWSD_Board%20Special%20Meeting%20Agenda_Posted.pdf