Rooney Valley News

Continued Highlights

17.  (One of the underlying public policy problems with having Big Sky run the sewer system for Rooney Valley is that the developer is “here today and gone tomorrow”.  As the lead CDN partner writing the checks testified, the plan is to sell Big Sky as soon as they can.  Preferably sell it to Lennar for $34 million.

This lack of continuity and commitment on the part of the owner and manager of this new sewer system, not to mention the entire lack of public accountability, is not the way to run an essential public utility.  It invites trouble and at the end of the day, under the Big Sky IGA, Green Mountain is responsible.)

18.  One line of evidence highlighting this problem was testimony from Tom Morton and Mr. Johnson.  They are the only two directors for Big Sky.  Under Title 32 there must be 5 or 7.  

Additionally, Mr. Johnson testified to his conflict of interest with Big Sky since he is a consultant, vendor, for Big Sky, who stands to make a lot of money billing Big Sky for his services related to building the sewer system.  Mr. Morton also has a conflict of interest to the extent he is employed by CDN who stands to make a lot of money based upon debt Mr. Morton voted to impose on the future residents of Big Sky.  

19.  Also, both Mr. Morton and Mr. Johnson testified that their only qualification to sit on the board is an “option” they have to purchase property.  (It’s a ruse of course.  They have no intention of living in the Big Sky district or ever owning property there.)  And as they testified, they have never exercised this “option” to purchase property, or paid any taxes related to any ownership interest.  

(We see this routinely in metro districts run by the developers.  It is one of the abuses that the legislature ignores and residents eventually resolve through recall (Solterra) or running for the boards, once the residents figure out what is going on.)

(In this case, however,  it raises a genuine question as to whether or not these two individuals had authority to enter into this new Big Sky IGA given the lack of a full 5 member board, the conflicts of interest and the game being played to qualify as an “elector” and then director of Big Sky.  Title 29 that defines IGAs requires authority from the responsible legislative body.  In this case, that would be Lakewood and Jeffco.)

20.  There was testimony from the former manager Ms. Cudahay.  (You may recall that she actively obstructed the new board’s efforts to investigate the Big Sky IGA and in emails with Cox criticized her own board.  She mounted an attempted protest by the employees over her imminent termination and sought to have the employees pressure the board not to question the Big Sky IGA.)   

21.  Both Ms. Cudahay, Attorney Ivey and Terry Kenyon testified for Big Sky that the plan all along was to have Big Sky pay for everything.   Even though the Big Sky IGA said Green Mountain would own and operate the lift station.  

What was clear from the testimony was that these three individuals ran Green Mountain before May 8, 2018.  (The elected board was just there to “rubber stamp” what they did.  No wonder the three of them were not anxious to share their control over the district with the new board, resisted in varying degrees, generated a lack of trust and forced the new board to find expertise and assistance they could trust.  This was a classic case where over time the former elected officials abdicated their responsibility for making public policy decisions and high dollar decisions to staff who in some cases benefitted financially from those decisions).

The testimony from Attorney Ivey was that the board saw the Big Sky IGA for the first time May 8.  (They likely did not have time to begin to read, and never mind understand,  it all.)  

Jeff Baker and even Adrienne Hanagan testified to the lack of trust in Attorney Ivey, later sued by the District for malpractice – the case is pending.  Jeff Baker explained the reasons in the lack of trust in Ms. Cudahay and Mr. Kenyon.

22.  The testimony indicated that Mr. Kenyon had benefitted financially from the work up for the Big Sky IGA and would benefit from the work implementing the Big Sky IGA.

23.  Jeff Baker testified about the new board’s efforts to implement more transparency.   There was ample evidence of all the public debate over the Big Sky IGA, numerous public hearings and meetings about the issue, discussions in the community and the expressed will of the residents. (Not folks with a fabricated “option” to purchase property.  Real people, paying real taxes and fees).  

24.  Jeff Baker testified about the reasons set forth in the resolution that terminated the Big Sky IGA.  That resolution is here. Green Mountain Adopted Resolution Terminating Big Sky IGA April 9, 2019

25.  Green Mountain presented three primary issues in the case.  

A.  The Big Sky IGA was invalid because Big Sky (and Green Mountain) did not have authority to create a new sanitation district without approval first from Lakewood and Jefferson County,

B.  the Big Sky IGA violated the Local Government Budgeting Act and

C.  the Big Sky IGA violated TABOR.  

The second two issues generally relate to whether or not there was official approval from the board (budget) and voters (election) to spend money over a period greater than one year.

26.  Mr. Kenyon testified that the timeline for building the Big Sky sewer system was at least 480 days – more than one year.  

Other Big Sky witnesses also testified to the timeline clearly indicating that money would be spent by Green Mountain for more than year and that there was no compliance with the Local Government Budgeting Act or TABOR.   (Note that these are the two issues that resulted in the dismissal of the case by the trial Judge in May, 2021.  The court of appeals sent the case back for more facts, hence the trial.)

27.  One of the obvious pieces of evidence that Green Mountain would be paying money for more that a year is this provision in the Big Sky IGA:

“Green Mountain shall rebate 50% of the SDF’s paid by Big Sky on a monthly basis, not later than the 15th of each month for all amounts paid in the previous month, until the earlier of (1) the amount rebated to Big Sky totals the Actual Costs of the GM Improvements paid by Big Sky pursuant to Section 4.1, without interest, as of the date of the rebate, or (2) the expiration of  (10) years from the date of the first SDF is paid by Big Sky to Green Mountain.”

(Translated this means that when residents pay their bill for sewer (SDF’s) to Green Mountain 50% of it is paid to Big Sky to repay Big Sky for the cost of making improvements to Green Mountain’s system.  Money that would normally go to Green Mountain and actually shown as income to Green Mountain from the residents’ fees is kicked back to Big Sky to pay down the “advance” to pay for various costs of construction of the sewer system.  And those payments from the residents don’t start coming in until the residents move in and can go on for 10 years.  Which is longer than 1 year.  

Big Sky’s claim that they would pay for everything was simply false.  Green Mountain would pay these costs over time with revenue it earned from the residents.  Money that would normally go to pay for Green Mountain service costs, not to pay off a “loan” from Big Sky.  This provision alone violates the Local Government Budgeting Act and TABOR).

What’s Next

Will Green Mountain settle.   Green Mountain and the residents have consistently said “no” to extraterritorial service with Big Sky and “no” to settlement if it involves providing service outside its district to Big Sky.  

But that doesn’t keep Big Sky from asking.  

Or the residents from changing their minds.

From what I heard, the Court has ample evidence to once again find in favor of Green Mountain.  And if it doesn’t, there are two levels of appeal.  Just as there are two levels of appeal for Big Sky to pursue if Green Mountain wins again.   

And after all this it would be good to get a ruling from the courts on some of these issues for the future.  It will likely help define more clearly the respective relationships between public bodies and private interests.

At the end of the day the only real settlement is providing Big Sky with service.  And that can happen now or after the appeals, assuming GM loses.  If GM wins, CDN spends its apparently unlimited financial resources on “plan b”.

But I’m no longer a GM customer or resident.  I don’t get a vote.  It’s up to you all to decide.   From the very beginning I did what I could to expose the facts and share my knowledge about the issues as a resident to support the new board’s effort to establish more public accountability and less developer control over the district’s policy making decisions.   At every step, it’s been up to the residents to decide the fate of Green Mountain.  That will never change.  Even doing nothing is a decision.

At the end of the day, the CDN investors will decide whats in their best financial interest.  Their decision making appears limited to calculations about how much profit they will make.  What is in the best interests of the residents simply isn’t on their screen.  What is good public policy and public accountability doesn’t compute for them unless it is reduced to profit or no profit.   Unfortunately it appears that is how Green Mountain also operated until May 8, 2018.  

I was proud to help give us and Green Mountain a voice that was different than the developer’s voice.  I was proud to help the residents restore public accountability for running a local government.  

I’ll continue to report on any new developments and provide more detail and correct any mistakes in these two blogs once we get the transcript.  Otherwise, the rest is up to you all.  

One last note.  If settlement is seriously considered, I would suggest settling on terms that were proposed initially back in 2018/2019.  That Big Sky apply for a modification to their Service Plan to create a new sanitation district.  Or start from the beginning in working with Lakewood and Jeffco to create a new regional sanitation district free of Green Mountain.  Title 32 provides the process.  It includes public hearings.  

Going back to the very beginning where Big Sky rushed through the Big Sky IGA on election night and does their best to avoid public hearings, maybe CDN’s lead who writes the checks might get an inkling that you can’t create or run a local government without answering to the voters.  

If he’s not willing to listen to the residents now, after all this, then he never will and doesn’t deserve to run a government (sanitation district or metro disrict).   No matter how much money he has.

Finally I would also suggest that any settlement include a payment of $10,000 to each and every resident who, in my opinion, plaintiffs’ attorneys harassed and intimidated in their misguided quest to find out the obvious:  that residents were discussing and debating these issues with their elected officials and exercising their right to speak freely with each other and the board members about important public policy issues.  Their objective of course, in my opinion, was to chill enthusiasm for, and scare people from, engaging in public participation on these issues so they, the developers, could dominate the narrative with the board.  In my opinion, that was wrong and there should be an accounting for this abusive behavior.