Boulder County not forced to repave subdivision roads

On Thursday, June 30, the Colorado Court of Appeals upheld the dismissal of a lawsuit that asked the courts to require Boulder County to pay for the repaving of roads in unincorporated neighborhoods.

The lawsuit was submitted by a group of homeowners wanting the county to fund the repaving of their subdivision roadways, led by lead plaintiff Chuck Wibby of Gunbarrel. On April 2, 2015, a Boulder County District Court judge ruled that the homeowners suing the county did not have the necessary legal standing to more forward with their claim. Almost 15 months later, a three-judge Court of Appeals panel agreed with the district court ruling, going against over 300 residents and families who sued the Boulder County commissioners to get the court to require the county to budget more money for repaving their subdivision roads.

In the court documents Wibby, co-chairman of Fairness in Road Maintenance, and the other plaintiffs alleged that for many years the County has failed to maintain the subdivision streets and roads in unincorporated Boulder County, “despite the County having accepted responsibility for such maintenance.” The primary basis of their claim was standard language in the development agreements entered into when the subdivisions were built, in which the county required the developer to build the roads to meet county standards, following which the county “accepted” the roads for maintenance.

The plaintiffs claimed that the development agreement language was a contract with the county and that homeowners could sue to enforce it. But the Court of Appeals ruled that the legislature, in enacting land use regulations, did not intend to create a contractual right which would bind the county. Further, the decision noted that the plaintiffs asked the Court of Appeals to infer that the county entered into road maintenance agreements in connection with subdivision approval processes, without actually making the allegation in the Complaint or submitting any evidence of such agreements. As a result, the court ruled that the plaintiffs did not have standing to sue the County for breach of contract.

The court also ruled that state statutes do not allow private citizens to sue to enforce a legal duty on the part of the County to maintain subdivision roads. The court held that the county had budgetary discretion to determine how much to spend on road maintenance, and that “allowing a private right of action could subject the County to endless litigation” for every budgetary decision. The court added, “No doubt members of the public have an interest in the budget allocations of their county. But in the absence of a recognized legal basis to do so - that does not mean that every citizen has a right to challenge a county’s budgetary decisions and its discretionary allocation of finite funds.”

Boulder County changed a policy in the Comprehensive Plan in the mid-1990s to state that going forward, the county would only continue routine maintenance of subdivision roads (such as plowing snow, sealing cracks and pothole repair), and that it was the residents’ responsibility to pay the expenses of major repaving work and rehabilitation for their subdivision roads.

This policy change came after most rural subdivisions in Boulder County had been approved and the roads accepted for maintenance by Boulder County. However, the county did nothing for almost 20 years to create a mechanism to establish a fund to pay for the road repaving. When the county finally addressed the problem three years ago, it attempted to create a special district to assess taxes to pay for the repaving, but the measure failed at the polls. As a result, subdivision roads continue to fall further into disrepair.

Homeowners and members of the Boulder County Fairness in Road Maintenance organization have argued that Boulder County is required by Colorado law to bring its subdivision roads into good repair and maintain them, but unless the plaintiffs seek an appeal to the Colorado Supreme Court, the lawsuit has come to an end without a solution to the deterioration of the roads. The plaintiffs argued that Boulder County continues to spend money on matters that are not statutory duties for it, “such as non-profit organizations, parks and open spaces, and waste and recycling,” but the court’s decision essentially says that those budgetary priorities are political decisions, and not subject to review by the courts.

The court said that while many people may disagree with how a county spends its funds and how much it allocates to subdivision road maintenance, the disagreement alone does not “create a private judicial remedy.”

A statement from the Boulder County commissioners said, “Now that a second court has affirmed its decision in favor of Boulder County, we look forward to working with the community to find a practical solution for repairing subdivision roads.”

Wibby and the rest of the Fairness In Road Maintenance organization stated that they will continue working working on their goal, which is to obtain road maintenance without any further taxes, but no specific plan has yet been presented.