BOULDER–Boulder County’s controversial plan to turn public open space into an industrial-scale composting plant is already the subject of a lawsuit to stop it. Now the neighbors who filed the suit have amended it to claim that the county also violated the Taxpayer’s Bill of Rights (TABOR).
TABOR is an amendment to the Colorado Constitution that requires, among other things, voter approval for new or increased taxes.
The new claim says that open space taxes approved by Boulder County voters, by ordinance and the conditions of approval by the voters, are only to be used to purchase open space that can then only be used for designated passive recreation and agricultural purposes.
They have asked for a declaratory judgment that the county violated TABOR and that the illegal use of restricted funds voids the purchase contract for the property. The county has two weeks from the date that the amendment to the claim was made to respond.
“It’s not complicated,” said Rob O’Dea, a consultant for the Open Space Protection Alliance. “We feel very strongly that the bait and switch that the county has effected on this parcel is a complete violation of the promise that it made the taxpayers who very favorably supported the sales tax increase to fund open space.
The Open Space Protection Alliance was formed in the wake of the county’s actions to “educate Boulder County residents about development threats to Open Space and conservation easements.” The group announced Thursday that the IRS has granted it 501(c)(3) non-profit status, making donations eligible for tax deductions and employer matching contribution programs.
According to the plaintiffs in the suit, Boulder County purchased the property under false pretenses.
“I think there’s a virtually limitless extent to which certain members of the Boulder County Commission are willing to go to identify loopholes to get around plain promises that they made the people who pay the taxes and elect the officials,” said O’Dea.
“We feel very strongly that when elected officials make promises to the taxpayers, and in this case there was a promise made to taxpayers, that they’re supporting an amendment or for an increase in the sales tax, it would be used simply for the purchase of open space land, the maintenance of open space land, the protection of open space land,” O’Dea continued.
The plaintiffs claim that evidence they have obtained shows that the county always had the intent to turn the former tree farm into an industrial composting plant, not preserve it as open space. This, they say, means that the county violated TABOR by deliberately misinforming voters about how dedicated open space tax funds would be spent.
“I believe they knew precisely what they were doing, and knew that their only option to be able to use this land for an industrial-scale composting and waste factory was to purchase it as open space, which they had the right to do under the original conservation easement,” O’Dea said. “And then they came up with this scheme where they believe they could effectively apply rules to themselves that no private citizen would ever have the benefit of.”
According to the county’s website on the plan, “The County Compost Processing Facility is a top priority for Zero Waste infrastructure need and will support the Board of County Commissioners’ Climate Action strategic priority, the Zero Waste Action Plan, the Environmental Sustainability Plan, and components of the Boulder Valley Comprehensive Plan.”
The website goes on to say, “The creation and implementation of the compost facility will help achieve our goal of Zero Waste or Darn Near (sic) by 2025 by capturing 20 to 30 percent of compostable (sic) county waste and increasing landfill diversion by five to 10 percent.”
According to the plaintiffs the county is planning to process 125 million pounds of animal manure, sewage sludge and food waste per year at the site.
According to O’Dea, if the court voids the purchase of the property on the TABOR claim it would revert to the estate of the deceased previous owner, Loren Frederick, which is controlled by his daughter. Neither are parties to the suit.
The county was not offered the property by Frederick, who intended to sell it to another private buyer. The county intervened in the sale because at the time they purchased the conservation easement, it included a right of first refusal that ran with the title to the land through several intervening owners, all of whom were bound by the conservation easement.
When the county bought the property it was supposed to be “on the same terms” as those offered to the private buyer, which O’Dea believes included the restrictions of the conservation easement.
Once the county bought the property it claimed that because it owned both the title to the land and the conservation easement, an obscure real estate doctrine called “merger” meant that the conservation easement was extinguished, thus allowing them to rezone and use the land for an industrial compost facility.
O’Dea and the plaintiffs argue that open space property, because it is purchased with restricted funds for a specific purpose, is held in trust for the citizens of Boulder County and cannot be converted or used contrary to a conservation easement or contrary to the purposes of the Open Space Program itself.
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