Suit over Kanemoto conservation easement can proceed, judge rules

BOULDER – A Boulder County district judge late Monday rejected the county’s motion to dismiss a lawsuit filed by a neighborhood group that opposes a planned housing development southwest of Longmont, even though his order upheld parts of the county’s claims.

The group Keep Airport Road Environmental and Safe, or KARES, in September had sued the Boulder County Board of Commissioners, asking the district court to overturn the commissioners’ decision that aided the developer’s plan by terminating a 41-year-old conservation easement.

The commissioners’ 2-1 vote to terminate the easement on Aug. 15 cleared the way for annexation of a 40-acre tract into Longmont and eventual construction of up to 426 “affordable” and “attainable” residential units. The panel added conditions designed to compel developer Bestall Collaborative Ltd. to keep to its commitments to provide that lower-cost housing in its proposed Somerset Village along the east side of Airport Road about a half-mile north of the Diagonal Highway.

The neighbors had contended that ending what’s known as the Kanemoto Estates Conservation Easement to allow the development would be in conflict with the county’s land-use rules.

Boulder County on Oct. 5 moved to dismiss the lawsuit, claiming that KARES had no standing to sue, that it had suffered no injury, that the county is not an “agency” for purposes of the State Administrative Procedure Act, and that the plaintiff’s Rule 106 claim should be dismissed because the commissioners’ action was not quasi-judicial.

Under Rule 106, the public can challenge certain governmental decisions within a short time frame, and District Judge Robert Gunning ruled the commission’s action was the type that permitted a Rule 106 challenge.

Gunning found that the plaintiffs “alleged sufficient harm from the termination of the conservation easement to demonstrate standing because they lived ‘adjacent to or near’ the proposed development, and that they had sufficiently alleged financial and aesthetic harms associated with the proposed development,” said attorney Randall Weiner of the Boulder-based Weiner and Cording law firm, who represented the neighborhood group. “He rejected the county’s argument that such harms were too remote and speculative where Longmont still needed to approve the development in the future and he agreed that the decision was quasi-judicial.

“The fact that Judge Gunning allows us to continue this lawsuit because we have people adjacent to or near the conservation easement is quite significant,” Weiner said. “The clients are elated that they will be able to continue to press their concerns about the county’s dangerous decision to open for a massive housing development land that had been set aside for a conservation easement for four decades.”

Approved in 1982, the Kanemoto Estates easement consisted of three parcels: tracts of 3.9 and 5.6 acres, each with an existing house, and a 28.76-acre outlot. The land-use code required the granting of a conservation easement, which usually designates an area to be open space in perpetuity, but the easement included language to allow it to be terminated if the county decided later that development would be appropriate. However, the subdivision plat signed on April 21, 1982, by George and Jimmy Kanemoto includes a dedication of improvements on the property “to the use of the public forever.”

Boulder County’s “Transferred Development Rights” program was developed to transfer development rights from “TDR Sending Sites” where the county determined development should not occur, to areas “suitable for development,” referred to as “TDR receiving sites.” According to the Somerset Village website, “the intent was to promote cluster development within municipalities and to preserve rural open space outside of the municipal boundaries.

The Kanemoto Estates property is one of the last TDR receiving sites approved by the county as suitable for development.”

The KARES lawsuit contends that the county improperly allowed one of the lots to be treated as a TDR receiving site even though such designation was unlawful, for, among other reasons, that it was on agricultural lands of national significance.

It alleges that Article 27 of the Colorado Constitution “recognizes the importance of preserving natural resources for the benefit of present and future generations” and that the county’s action violated that article. It says the Colorado Conservation Easement Act requires that conservation easements “may not be terminated unless it becomes impossible to fulfill its conservation purposes.”

“This is the kind of case that is likely to be decided by a judge rather than a jury,” Weiner said. “The court will decide whether the county violated the law by terminating the conservation easement without following legal requirements.”

The next step for developer Jack Bestall is to seek annexation into the city of Longmont, but it is unlikely Longmont would schedule hearings before the lawsuit is resolved.

Reached Tuesday morning, Bestall said he had yet to read the court order, and that “I need time to review it and understand what the implications are.”

Neither Hannah Hippely, the county’s long-range planning manager, nor the county attorney’s office returned calls seeking comment before BizWest’s afternoon deadline.

The case in Boulder County District Court is Keep Airport Road Environmental and Safe: Eric Scherer, Gwen Scherer, Greg Petrosky, and Michelle Romeo, James Potter and Kelly Potter, plaintiffs, v. Boulder County Board of Commissioners, defendant, case No. 2023CV30652.

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