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Plaintiffs Consider Appeal After Boulder District Court Dismisses Case Against Boulder County to Protect Open Space From Commissioners’ Development Whims

MARCH 22, 2021 | BOULDER – Just days after Boulder County Commissioners publicly backed away from plans to develop an industrial-scale composting factory on Rainbow Open Space, District Court Judge Patrick Butler today sided with lawyers for Boulder County and dismissed a case brought by residents seeking to prevent the County from developing vulnerable Open Space. However, rather than address the critical merits of the case, the Court bowed to the County’s mischaracterizations of the suit in its dismissal

Karl Kumli, Plaintiffs’ attorney commented, “We clearly are pleased that the County has withdrawn the application to site a compost factory on Open Space land adjacent to our clients’ property. The Court made clear that it took the County’s retreat into account in its ruling. We also appreciate the County Commissioners’ statements as reported in the media over the weekend, that the County will not be pursuing development of the compost factory at the Rainbow Open Space. However, we are disappointed in the Court’s determination made today and we disagree very substantially with the Court’s analysis.  Accordingly, we are examining the best manner in which to proceed for the benefit of our clients.  We have calendared the appropriate deadlines, including those for filing a notice of appeal.” 

Judge Butler determined the material issue of whether there was merger of the conservation easement when the County purchased the land. This was a substantive issue that was not before the Court on the motion to dismiss. The Court would only be in a position to provide such a determination based on evidence adduced at trial, unfortunately, Judge Butler prevented that from occurring and instead took it upon himself to rule without the benefit of proper procedure.

On the issue of standing, the Court went directly to a determination based on the County’s recently withdrawn development application. Therefore, the substance of the issue remains unaddressed, and the protection of Open Space lands remains in peril from the whims of the County.

The Court similarly relied on the County’s withdrawal of the application to undercut the lawsuit’s TABOR claim. The County purchased the property with a wrongful intent and clearly not to use the property for Open Space purposes. Judge Butler determined that because there are no current plans for the property, there must not be a claim which exists for TABOR.

Plaintiff Brandon White added, “we feel very strongly the Court followed the lead of the County in dodging the substance of the plain matter of protecting Open Space lands, purchased for perpetual conservation with restricted tax revenues, from development. In so doing, the Court and County also failed to address the related legal issues. It’s unfortunate we now have to turn to the Court of Appeals, but we respect the process on this very important matter for all Boulder County residents.” 

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BOULDER COUNTY TAKES IMPORTANT STEP TOWARD RESTORING TRUST IN OPEN SPACE

MARCH 4, 2021 | BOULDER – Residents involved in litigation against Boulder County to prevent development on lands purchased with Open Space funds and protected by a perpetual Conservation Easement were heartened today when the Boulder County Commissioners accepted a staff recommendation to withdraw the County’s application to itself to develop a massive industrial composting factory on Rainbow Open Space.

The County’s application withdrawal request was submitted after months of intense community feedback highlighted opposition to developing lands that were purchased for conservation. Staff also noted their original proposal failed to adequately anticipate or address a range of operational and economic variables they will now revisit.

Commissioner Matt Jones accused opponents of the County’s development plan of “grandstanding” right before acknowledging indeed the County “created the problem and it’s not going away.” Despite Commission Chairman Jones’ acknowledgment of the County’s role in the controversial plan, the Commission did not seize the opportunity to reaffirm its plain promise to taxpayers that Open Space and Conservation Easements, paid for with restricted Open Space tax revenue, will never be developed.

New Commissioner Marta Loachamin, who ran an election campaign rooted in community participation in local government acknowledged the +190 residents who took time away from their workday commitments to participate in the 1:00pm County hearing.

Commissioner Claire Levy, also newly elected, observed the County’s aggressive, self-imposed trash-diversion goals had given the County “tunnel vision.” She, in concert with Commissioner Loachamin, expressed relief the development application withdrawal curtails the quasi-judicial review process thus allowing staff and the new Commissioners to discuss all facets of the proposal and examine alternatives to the original plan.

Reached after the Commission hearing, Lisa Battan, a plaintiff in a lawsuit against Boulder County Commissioners seeking the protection of Rainbow Open Space from development, commented, “I am encouraged by today’s action to withdraw the development application that would destroy Rainbow Open Space. I am also somewhat disappointed the Commissioners could not also express a clear policy of honoring the protection of Open Space lands from development. That little step would eliminate the need for divisive litigation and restore public trust in the entire Open Space system.”

Brandon White, a plaintiff alongside Ms. Battan, was similarly encouraged, “I am optimistic this signals an end to the County’s appetite for developing lands taxpayers purchased to protect. Hopefully, rather than fight in court about how to protect Open Space lands we can all come together and refocus on how best to advance policies that are at once environmentally responsible and respectful of the commitments we have made to conserve our natural lands.”

Ms. Battan and Mr. White are founding members of the Open Space Protection Alliance (OSPA), a 501(c)(3) non-profit formed to raise community awareness of threats to Open Space and Conservation Easements. OSPA maintains the website, www.ProtectRainbowOpenSpace.org

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Media Contact:  Rob O’Dea – (720) 340-9095 rob@barracudamad.com

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BOULDER COUNTY SEEKS COVER BEHIND NON-SUBSTANTIVE REPLY TO LAWSUIT AND ASKS COURT TO DISMISS TAXPAYER LAWSUIT TO PROTECT OPEN SPACE

February 5, 2021 | BOULDER – Taxpayer-funded attorneys, defending Boulder County Commissioners, filed a motion in Boulder District Court late today asking the Court to dismiss a lawsuit brought by residents that seeks to protect Open Space. The anticipated maneuver highlights Boulder County’s strong desire to avoid addressing the substance of the case - that Open Space purchased with restricted taxpayer funds should never be exploited for commercial development.

In a show of resolve and conviction that perpetual conservation easements and Open Space lands, purchased with restricted tax revenues, should never be in jeopardy of development – and certainly not by the County itself – Plaintiffs just one week ago amended their complaint to include a new TABOR claim. In short, the amended claim asserts the County is prohibited, under Colorado’s Taxpayer Bill of Rights (TABOR), from knowingly misusing restricted funds for a purpose not approved by voters.

Boulder County’s voter-approved Open Space tax clearly states proceeds may only be used to purchase and maintain Open Space. Despite this, Boulder County is applying to itself for permission to develop and operate a massive commercial sewage, manure, and rotting food factory on the 40-acre Rainbow Tree Farm Open Space lands that were purchased with restricted Open Space tax revenue. The County’s development effort on Open Space is a betrayal of its obligations to the taxpayer and a clear violation of Colorado’s Taxpayer Bill of Rights.

Under Colorado law, Boulder County’s TABOR violation requires it to refund to all taxpayers the full purchase price of the Open Space land plus 10%/year interest. Further, Plaintiffs are seeking reinstatement of the perpetual conservation easement protections that were purchased on the land by Boulder County taxpayers. The amended action seeks to establish an important precedent in Colorado that no matter how virtuous an entity perceives its development objectives of Open Space to be, the protected status of taxpayer-funded Open Space lands are, in fact, inviolable.

Brandon White, a plaintiff in the suit against Boulder County observed, “I am not at all surprised the County is seeking to have the case dismissed on a non-substantive technicality. That strategy helped the County avoid accountability in past cases including Wibby v. Boulder County Commissioners and Rechberger v. Boulder County Commissioners.” White added, “just once it would be nice to hear a policymaker in Boulder acknowledge a lapse in judgment, or to simply take responsibility for a mistake. Instead, we taxpayers have to hire attorneys to sue the County, which in turn uses our tax money to hire attorneys to double down and defend its errors. It’s time the Commissioners save us all the aggravation and expense, and simply honor the promises they made when voters approved a sales tax to purchase and protect Open Space lands.”

Mr. White is a founding member of the Open Space Protection Alliance (OSPA). The non-profit was formed to raise community awareness of threats to Open Space and Conservation Easements from policymakers who cannot resist the temptation to overreach. OSPA maintains the website, www.ProtectRainbowOpenSpace.org

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Contact:  Rob O’Dea – (720) 340-9095 rob@barracudamad.com

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OPEN SPACE PROTECTION ALLIANCE DEMANDS EVIDENCE PRESERVATION AND SERVES BOULDER COUNTY NOTICE OF INTENT TO FILE SUIT

Boulder County attempting massive industrial development on taxpayer-funded Open Space lands in violation of conservation easement 

Boulder, CO November 24, 2020 — Newly formed Boulder non-profit, Open Space Protection Alliance (OSPA) informed Boulder County today of its intent to file a lawsuit against the Board of County Commissioners seeking declaratory judgement, to quiet title, to impose a constructive trust and for other relief related to the County’s unlawful plans to build an industrial-scale waste processing and compost facility on Open Space lands, purchased with dedicated funds and protected by legally-binding conservation easements.

OSPA’s letter also demanded that Boulder County comply with the Federal and Colorado Rules of Civil Procedure regarding their duty to preserve evidence related to the forthcoming claims. On October 21, November 12, and November 17, OSPA filed Colorado Open Records Act requests with the County seeking disclosure of public records related to the County’s unusually secretive and unprecedentedly fast-tracked application to itself to authorize construction on protected Open Space.

Boulder County has not been adequately forthcoming in its production of public records requested by OSPA, as required under the Colorado Open Records Act. It has attempted to discourage public inquiry through exorbitant fees for records access and has provided glaringly incomplete responses.

Paradoxically, while Boulder County is blaming the pandemic for its delays and non-responsiveness, the County has rejected OSPA’s written request to provide a corresponding delay in its deadline for community and stakeholder input to Boulder County’s application to itself.

Plaintiff, OSPA co-founder, and Boulder County resident Lisa Battan notes, “it is offensive for Boulder County – which is at once the land-owner, developer, applicant, reviewer, and future operator of this highly controversial project – to deny the community their lawful right to review the details of this project and to understand its far reaching and long lasting impact on the community.” Battan added, “the County is rushing to finalize this project without adequate transparency. The County’s unprecedented action to destroy taxpayer funded conservation easements which existed on the property for more than 25 years, as well as to convert Open Space and important agricultural lands into industrial and commercial uses, should not be lightly or hurriedly undertaken. The County is preventing residents from understanding what a small group of people are doing to develop lands which belong to the public.”

Underlying OSPA’s concern is the fact that despite having pro-actively expanded the notification radius on other recent Land Use Review matters to as far as 2-miles, on its own application to develop a high-intensity, industrial-scale facility on 40-acres of Open Space, Boulder County instead chose to only notify 12 individual property owners. The County asserts this satisfies its legal minimum obligation to notice only property owners within 1,500’ of the proposed commercial development. Dawson School, the Town of Erie, and hundreds more homeowners would be made aware of the true nature of the County’s plans if it applied the same 2-mile standard to itself that it forced Boulder Rifle Club’s to adopt in its recent expansion application process.

Former local government attorney and OSPA member, Jeffrey Davis adds, “Boulder County’s plan to accept 60,500 tons of animal manure, rotting food and human sewage bio-solids is an industrial-scale commercial operation on lands that were purchased with Sales Tax money for Open Space. This is wrong and poses serious contamination threats to groundwater, onsite wetlands, and the adjacent Leggett Ditch. Under the feel-good banner of Zero-Waste, the County is proposing to clear-cut a forested conservation easement and transform Open Space into a toxic source of life-altering air and odor pollutants just two miles upwind from downtown Erie.”

Davis framed the full scale of Boulder’s proposal by adding, “for perspective, Boulder County’s projected 60,500 tons per year of waste at this property is equal to the weight of 40,000 Toyota Prius cars…all being trucked from around the region, along already congested Highway 287, to be dumped in the heart of Boulder County on irreplaceable USDA-certified agricultural lands of national significance that we taxpayers paid more than a million dollars to protect. This is a horribly ill-conceived proposal that does not survive any reasonable scrutiny.”

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NON-PROFIT FORMED TO EDUCATE BOULDER COUNTY RESIDENTS ABOUT IMMINENT THREAT TO OPEN SPACE

Boulder County attempting massive industrial development on taxpayer-funded Open Space lands protected with conservation easements

Boulder, CO November 13, 2020 — Dismayed by Boulder County’s recent special use application — submitted to itself for approval — seeking approval for the development on a 40-acre Open Space parcel encompassing a former tree farm into the Rocky Mountain region’s largest industrial-scale facility for processing human sewage bio-solids, animal manure and rotting food waste into compost, a group of concerned Boulder County residents has formed a non-profit, Open Space Protection Alliance (OSPA), and launched www.ProtectRainbowOpenspace.org

In December 1993, using taxpayer funds, Boulder County took one of the first self-described “rare” actions of purchasing a conservation easement on the 40-acre Rainbow Nursery located on US 287 between Lookout Road and Highway 52. More than twenty years later when Rainbow Nursery was listed for sale, the County reaffirmed the land’s exceptional preservation values and exercised its purchased right of first refusal to purchase the land with Open Space funds. It added the parcel to Boulder County’s Open Space inventory on April 17, 2018.

On October 6, 2020, Andrew Barth, a spokesman for Boulder County, told neighbors in a limited, invitation-only public meeting at Rainbow Open Space that Boulder County was only in the early consideration phase of developing a future composting facility at Rainbow Open Space. In a discussion that was video-taped, Barth assured approximately 30 neighbors the project was “not a done deal” and still “very early in the process”, and that his only interest was to gain neighbor feedback. Yet, only five days later, on October 11, 2020, the County submitted a 235-page Special Use Review Application to Boulder County, seeking to clear-cut the 40-acre Rainbow Open Space parcel and develop it into a massive industrial-scale waste processing facility covered with industrial processing buildings and significant paving.

The County’s application illuminated a highly unorthodox land transfer within the County’s various departments wherein the Open Space land was stripped of its protected status, was stripped from the Open Space inventory, was stripped of its perpetual conservation easement, and was unilaterally transferred to Public Works for development. According to Barth, Boulder County has spent close to $1,000,000 on contractors for this clandestine effort. This is in addition to the $935,000 Boulder County spent to purchase the Rainbow property in 2018 and the $169,000 Boulder County spent to purchase the conversation easement in 1993. To gain more transparency, OSPA was required to submit a Colorado Open Records Act (CORA) request on October 22, 2020. As of today, and despite having pre-paid a staggering $2,000 in fees, Boulder County has yet to make any public records available. Thus, OSPA is unable to confirm the origins of this effort, the full extent of future expansion plans, how much taxpayer money has already been spent, and how much more has been approved beyond the more than approximately $2,000,000 Boulder County has already spent.

OSPA is determined to raise community awareness of the proposed abuse of Open Space, the troubling precedent set by the County’s never-before seen dismissal of legally binding conservation easements and the manipulation of public trust through an inexplicably rushed and unilateral review process, particularly at a time when Boulder County's “Safer at Home Level Orange: High Risk” precludes in-person public hearings. Boulder County’s application to itself is particularly problematic for community members who are concerned about the extreme incompatibility of the proposed facility’s industrial-scale with its original Open Space designation and agricultural surroundings, and the related noise from the expected 6-acre paved open-air wood grinding plant, numerous industrial vehicles and the nearly constant back-up beepers.

 Health, safety and environmental impact concerns tied to the impact of Boulder County’s anticipated 40-50 heavy truck trips each day in and out of the Rainbow Open Space on an already exceptionally dangerous stretch of US-287 also remain unaddressed in Boulder County’s application to itself. This unprecedented abuse of Open Space calls into question Boulder County’s commitment to preserving other Open Space it owns or on which it holds a conservation easement. Boulder County residents have long relied on the protection of Open Space to provide outdoor and recreation opportunities and enhance their quality of life. Citizens should not suddenly have to start worrying about where Boulder County will next choose to abandon the values it espoused in acquiring Open Space and instead subject residents to an entirely inconsistent industrial use of the land.

Notably, there is no private landowner option to do what Boulder County is attempting to do for itself in erasing taxpayer-funded conservation easements or developing Open Space to the detriment of the entire resident community. Boulder County’s callous and hypocritical posture in pursuing an industrial-scale waste processing facility on Open Space undermines its own recent District Court petition to prevent Extraction Oil & Gas from drilling in Weld County on land where Boulder County owns a conservation easement “to protect the high-quality agricultural and open-space qualities of the land.” Commissioner Gardner noted in a recent press release, “If Extraction proceeds, it will cause harm to the property that could never be fully repaired. We will do everything we can to stop them.”

“The double-standard applied by the County in its pursuit of a pet project, at the expense of the entire community, is alarming. Wrapping the County’s own development in a feel-good, green-washed wrapper does not lessen its impact or the outrageousness of clearcutting and paving Open Space for a highly intensive industrial project of this scale,” remarked OSPA founding member and Boulder attorney, Lisa Battan. She continued, “the adverse impacts of the County’s plan are completely at odds with the County’s own justification for protecting the lands in the first place. The taxpayers who purchased these lands for preservation deserve better and they need to know what’s at stake.” 

Attorney for the new organization, Karl Kumli, added, “We have asked Boulder County for publicly available information on this matter in order to determine our next steps.  However, the County is delaying delivery of any information sought by our Open Records Act requests.  At the same time, the County is hurtling forward with unprecedented speed to make its final determinations in this case where it is the industrial applicant, the proponent of termination of the Rainbow Open Space and the entity which will decide the fate of that Open Space.  This process cannot be a railroad job. The integrity of the County’s Open Space program is clearly in issue.  So, we are forced to examine all our legal options.”

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