Judge dismisses TLAG lawsuit

Boulder County District Judge Nancy Salomone recently granted a motion to dismiss a lawsuit from the Twin Lakes Action Group against Boulder County regarding the purchase of open space as part of the Gunbarrel Public Improvement District (PID) that was approved by voters in 1994.

The taxed amount over 11 years (the PID ended in 2005) came to a total of just over $2.3 million, and the county had pledged to match up to $1.9 million, according to the lawsuit.

To date, the county is still $594,366 short of the amount promised, which is what spurred the suit last August from plaintiffs David Rechberger, Nicolette Munson, Rolf Munson, Laurel Hyde Boni, Dinah McKay, Donald Sherwood, William B. Swafford, Jr., Marilyn Kepes, Donald Wrege and Douglas Johnson — all Gunbarrel residents and part of the Twin Lakes Action Group (TLAG).

Salomone — who has been on the bench for the 20th District since October 2017 — was given the case after she was appointed to replace retiring Judge Maria Berkenkotter.

The judge’s decision basically determined that TLAG has no standing to sue the county and used previous failed suits over road maintenance — or lack of — in subdivisions as precedents.

The plaintiffs argued that language prepared by the county in the Comments section of the 1993 election notice constituted an enforceable contract. The comment stated, “The Boulder County Commissioners have indicated that, subject to the passage of this issue and the Boulder County Open Space tax, the County will provide a matching contribution toward open space purchase with in the Gunbarrel Public Improvement District up to a maximum amount of $1,900,000.”

Some 25 years later, the Boulder County Attorney’s office argued that the words “indicated” and “up to a maximum” did not constitute a promise by the county enforceable as a contract. The judge agreed with the county, finding that the language used was “open to fundamental differences in interpretation” and indicated that there was no meeting of the minds essential to forming an enforceable contract.

The court went on to hold that even if there had been a contract, the county has contributed “roughly $1.3 million to date” and that the county has thus “performed any purported contractual obligation.”

Much of the specific language from the judge’s ruling is what’s leaving many scratching their heads.

“All of it boils down to the way the judge argued it,” Rechberger said. “It was by saying that that whole ballot was nothing more than a political promise that can’t be litigated. We have no standing and therefore everything gets thrown out.”

Rechberger and TLAG contended that the funds were supposed to be used for the purchase of open space, which at the time was becoming hard to find in unincorporated Boulder County. Thus the decision came as a shock as to why the county would not make good on its promise.

“It caught me completely off guard,” Rechberger said. “We were shocked with the judge’s determination. All of our lawyers and every other one I’ve talked to around the county were dumbfounded by the decision as well.”

A 10-acre parcel located at 6655 Twin Lakes Road ended up being sold for $470,000, below what the county had left in matching funds, but commissioners transferred the land to the Boulder County Housing Authority instead of designating it as open space.

If that purchase had been turned over to open space, Rechberger said, the suit would not have been filed.

“By right it should have gone to the Gunbarrel Improvement District, not signed over to the (Boulder County) Housing Authority,” he said.

The ruling raised concerns for the plaintiffs beyond not having the last piece of land to be dedicated to open space. TLAG says that the decision makes ballot initiatives within the county non-binding on the commissioners.

“This basically says that whatever you put in front of the voters — if the county says they’re going to do something, they don’t have to do it, because it’s just a ‘political promise,’” Rechberger said. “Win, lose or draw in this case, the precedent that’s being set by this decision is just mind-numbing.”

At the time of the PID, the county did buy most of the open space that was available for purchase, but that was very limited two decades ago and even more so today.

“It’s not only how (the taxpayer’s) dollars are spent,” Rechberger said. “This was an explicit, specific bond measure by all the citizens, 10 or 12 thousand of us in Gunbarrel, that voted to tax ourselves for 11 years, and the county promised to match it.

“We have records of it, it’s documented left and right, and yet the judge says we didn’t prove any harm and that we didn’t have standing.”

The location of the 10 acres is also close to a split of 20 acres the county recently acquired — 10 from the Boulder Valley School District and 10 from the Archdiocese of Denver. Those have been marked as “land-banked” by the county, but proposals for medium-density housing have crossed the land use and zoning boards since the purchase.

“What it’s saying to me is that the county doesn’t care to uphold its responsibility to its voters,” Rechberger said. “It’s what they say, not what the voters say. Their own commission wrote the language for this ballot and yet they’re choosing not to uphold what the voters agreed on with this ballot initiative.

“It’s a conscious choice … that to me is fraud, it’s just horrible. The fact that the only recourse for citizens is to file lawsuits against your own government is pitiful. What do you do? It’s very frustrating. We’ve tried for years to come up with a good solution, but with them, nothing is good enough.”

TLAG has about 33 days left to respond to the dismissal. “We have to evaluate our response,” Rechberger said. “We have an option to appeal, we have an option to have them reconsider.”