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Neighbors of planned Boulder County compost factory sue to stop it

BOULDER–Three landowners in eastern Boulder County are suing to stop the county’s plan to turn 40 acres of “prime agricultural land” into an industrial-level composting facility that would process 125 million pounds of animal manure, sewage sludge and food waste per year.

Lisa Battan, Brandon White and Victor Vargas all own property adjoining or near the county-owned parcel located south of Colorado Highway 52 and north of Lookout Road along Highway 287 in eastern Boulder County.  The lawsuit was filed Dec. 23 in Boulder County District Court.

The property was once the Rainbow Nursery tree farm and adjoins county open space on the north. Within a mile to the southeast lie homes and subdivisions. Downtown Erie is less than 2 miles southeast.

In 1994 the county spent $169,625 to preserve the property as open space under a conservation easement that was supposed to perpetually run with the title to the land specifically “in order to assure its preservation in perpetuity for agricultural uses and for the open space function which it serves.”

In 1995 the county cited the conservation easement in denying an intermediate owner permission to build a residence on the property.

Now it wants to build an industrial composting plant on the same parcel.

In their complaint the adjacent landowners say Boulder County is betraying the trust of residents by pursuing an industrialized facility that is incompatible with the conservation easement county taxpayers purchased.

In 1993, when the county began its program of preserving and purchasing agricultural land and open space, the county asked voters for permission to impose sales and use taxes for the acquisition of open space.

Since then Boulder County voters have approved almost all county requests to continue or increase sales and use taxes for open space.

But, the resolution approved by the voters says county open space can be used solely for passive recreation, agriculture or environmental preservation purposes. This applies to all county open space purchases.

All three of the plaintiffs say they purchased their properties after carefully researching the area and bought them in large part based on the promises of the conservation easement on the Rainbow Nursery property.

In 2018 the county purchased full title to the property after invoking a “first right to purchase” the property when the then-owner decided to sell.

The complaint says that the county is trying to ram the project through with the bare legal minimum of required review and that it purchased the property with little public notice and with the full intent to build the plant in spite of the conservation easement.

On October 6, 2020 the county held a meeting on the property, but according to the lawsuit only invited 12 landowners living within 1,500 feet of the site and apparently did not publish a public notice of the meeting.

“This meeting was the first indication that neighboring property owners received of the County’s intent to develop the Compost Factory. County staff at that meeting indicated that the plans for a “proposed compost facility” were preliminary,” states the lawsuit.

The complaint suggests that the county misled landowners at the meeting, knowing that the plan to build the composting facility was not preliminary at all, but rather was fully completed, right down to the required engineering and design studies.

Six days after the site meeting, on October 12, the county filed a 235 page fully-completed application for special use review with itself, making it “both the applicant and the reviewing governmental entity.”

The complaint goes on to say, “Because the County has jurisdiction over the Special Use Review and other associated administrative processes, the County has placed itself in the position of being: 1) the beneficiary of the Conservation Easement; 2) the purchaser of the Property; 3) a proponent of the position that the Conservation Easement no longer exists, 4) the proponent and prospective developer of the Compost Factory on the Property; 5) the prospective constructor, operator and entity maintaining the Compost Factory on the Property; and, 6) the governmental entity which will decide the fate of the Property pursuant to the County’s own Special Use Review process.”

According to the complaint, immediately after the purchase the county asserted an obscure provision of real estate law called “merger” that it claims extinguishes the conservation easement.

The merger doctrine says that conditions of sale are “merged” with the deed and if they are not explicitly restated in the deed they are extinguished.

Boulder County has used the merger doctrine before to combine adjoining parcels on small deeded mining claims that don’t meet current lot size zoning codes that are owned by the same person under separate deeds. The county has involuntarily merged some into single parcels in order to limit use-by-right residential construction in the mountains, much to the ire of property owners.

In response to the county’s actions, citizens started “Protect Rainbow Open Space” to inform and advocate against the county’s plan.

The website says, “Boulder County is racing to build a $10 million waste factory on Open Space so they can truck 125-million pounds per year of manure, human sewage sludge and rotting food into the heart of Boulder…all in the name of “Zero Waste.”

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