Brookfield has been busy taking people to court. Here are updates on:
- Brookfield trying to force Green Mountain to provide more sewer service outside the district in violation of the service plan and without a public hearing.
-
- The 15 year contract Brookfield entered into with Green Mountain under Adam Paul’s leadership to provide new sewer to Solterra expired January 15, 2023 and Brookfield now claims it is “entitled” to another contract for more sewer.
- Brookfield is suing Solterra because Solterra isn’t paying them an additional $20 million in interest fast enough.
-
- Sadly Solterra is reduced to arguing they are paying as fast as they can since they forfeited their right to challenge that they owed any money at all
-
- A study by residents showed that residents in fact paid Brookfield twice for the infrastructure. Once in the money they paid for the developed lot when they bought the house and a second time through the “metro district financing” wholly controlled by Brookfield.
Here are the new developments:
1. Green Mountain Sewer Service Outside its District Territory
On May 4, 2023, the Court held a status conference on Brookfield’s effort to try to get the Court to rule that Solterra’s Service Plan somehow “requires” Green Mountain to provide sewer after the IGA expired (January 15, 2023).
The Service Plan was an application by Brookfield to create the Solterra metro district (named Fossil Ridge instead of Solterra for “some reason”).
Green Mountain didn’t have anything to do with the Service Plan and certainly was not a party to the Service Plan. Just Brookfield and the City of Lakewood who (City Council) approved the Service Plan.
The 2008 IGA between Brookfield and Green Mountain is the only document that established any obligation by Green Mountain to provide new sewer hook ups outside its district territory – an agreement written by Brookfield and supported by Adam Paul (then VP of Green Mountain) – and it expired January 15, 2023.
In Court, Brookfield asked for a hearing on their motion for a “permanent injunction”. The Court set the hearing date for all day, June 28, 2023. Brookfield wants to take depositions of Green Mountain and Solterra people. The Court directed the parties to come up with an agreement for “limited discovery” and let the Court know if there are any discovery disputes.
During the hearing, counsel for Green Mountain argued the Court did not have jurisdiction over Green Mountain in the matter. Brookfield argued they could not get relief without Green Mountain. The Court indicated it would “address any necessary issues prior to the hearing”.
Here is the minute entry from the clerk that summarizes the hearing.
As part of the briefing on the issue, Solterra, to their credit explained to the Court why Green Mountain has nothing to do with the Service Plan and has no obligation to provide sewer hook ups after January 15, 2023:
“First, because the Amended Motion glossed over Brookfield’s failure to complete (or in some cases even start) construction before the expiration of the Reserved Capacity Term, Brookfield goes to great lengths to argue that the Reserved Capacity Term has nothing to do with its current predicament. That is nonsensical because the expiration of the Reserved Capacity Term is precisely why Green Mountain is refusing to provide service. If Brookfield wants to argue that its yet-to-be built residences somehow fall within the Reserved Capacity Term, that is a contractual dispute for Brookfield to raise under the Green Mountain IGA, not a matter of enforcing the Districts’ Service Plan. The reality is that Brookfield neglected to appreciate that the Reserved Capacity Term was expiring. Then, when neither the Service District nor Brookfield could negotiate an extension of the term, Brookfield scrambled to tender advance payment to Green Mountain for future residences. Brookfield’s refusal to acknowledge that the Reserved Capacity Term is at the center of its predicament is disingenuous. . . .
“Finally, because the reality is that Green Mountain provides the sewer service, Brookfield must renew its argument that the Districts’ Service Plan can be enforced against Green Mountain (which has its own service plan) in a proceeding to which Green Mountain is not a party. None of the authorities cited in the Reply support that theory, which defies common sense and violates basic principles of due process, where the only commitments Green Mountain made are in the Green Mountain IGA, not the Districts’ Service Plan. “
Here is the full document:
Reply by Solterra re Green Mountain
2. Pushing Solterra to Pay Interest Faster
Brookfield filed a lawsuit to try to force Solterra residents to pay it more interest faster.
In its most recent brief filed May 4, 2023, Solterra noted:
“Brookfield’s Response does not, and cannot, dispute this critical fact, which is fatal to Brookfield’s case—the Districts have never refused to issue additional bonds for eligible costs that are properly documented when reasonably feasible to do so. Instead, Brookfield contends it can force the Service District to force the Financing Districts to bond years ahead of schedule and well outside the financial parameters set in the Service Plan based on the implausible allegation that sufficient “assessed values” exist. But the contracts and organizational structure Brookfield put in place to take advantage of public tax dollars were intentionally designed to preclude Brookfield, as developer, from having any say over whether and when the Financing Districts, as independent local governments, determine it is reasonably feasible to issue repayment bonds supported by taxpayer dollars.” . . .
“The fact is, Brookfield never counted on having to live with the terms of the documents it put in place because Brookfield believed it would be able to dictate when it was repaid by controlling the Districts’ Boards. Having given up control of the Boards, Brookfield now complains it should be paid ten years ahead of schedule because the Reimbursement Agreement does not allow Brookfield to recover any more interest on top of the tens of millions in interest it has already been paid. But that financial term, which Brookfield put in place, does not create an otherwise nonexistent contractual right to force early repayment. “
[Note that Brookfield didn’t voluntarily “give up control of the Boards”, the residents recalled them off the board.]
http://solterracommunity.org/index.php/2017/06/30/board-resignations/
http://solterracommunity.org/index.php/2017/08/03/recall-postcript-the-final-numbers/
The briefing on Solterra’s motion to dismiss several, but not all, of the Brookfield claims appears to be complete. The Court should be issuing a decision shortly.
In 2017 the current board decided to appease Brookfield instead of challenging the double payments because they were afraid Brookfield would sue them. Unfortunately, Brookfield sued them anyway. No surprise there.
3. Finally, Green Mountain appears to be considering a resolution clearly stating that it will not provide service outside of its territory without:
1. A public hearing
2. Amending the service plan.
Neither of which were done in the case of providing service outside the district to Solterra or in the terminated Big Sky IGA.
A new resolution has been discussed several times at board meetings. A final draft will likely be shared with the public in the board packet in the near future (nothing in the packet for tomorrow). Stay tuned.
John Henderson