Judge rejects neighbors’ complaint in conservation easement case

Editor’s note: This story has been updated with comments from KARES’ attorney.

BOULDER — Rejecting a complaint by neighbors of a proposed development on the southwest edge of Longmont, a Boulder District Court judge ruled Friday that the Board of Boulder County Commissioners acted properly last year when it conditionally terminated a 41-year-old conservation easement.

Barring an appeal by the plaintiffs, who had organized as Keep Airport Road Environmental and Safe, or KARES, the ruling by District Judge Michael T. Kotlarczyk clears the way for developer Bestall Collaborative Ltd. to seek annexation of the 40-acre tract into the city of Longmont and eventually build Somerset Village with up to 426 housing units along the east side of Airport Road about a half-mile north of the Diagonal Highway.

The developer envisions a diverse, energy-efficient residential community with single-family homes, duplexes, fourplexes, cottages, townhomes and flats — with “attainable” and “affordable” price points — as well as a bodega, ride-share plaza, early-childhood center and community center. The commissioners’ approval of terminating the easement came with added conditions designed to compel the developer to keep to its commitments to provide lower-cost housing in Somerset Village.

A month after the commissioners’ vote, KARES sued the county, asking Boulder District Court to overturn the commissioners’ decision. Under Colorado’s “Rule 106,” the public can challenge certain governmental decisions within a short time frame.

KARES’ lawsuit contended that terminating what’s known as the Kanemoto Estates Conservation Easement to allow the development would be in conflict with the county’s land-use rules.

“We expected this ruling from the court. It aligns with the terms of the Agricultural Conservation Easement; and Boulder County and City of Longmont policies,” said Jack Bestall, principal of Bestall Collaborative, in an email to BizWest late Friday. “We are prepared to move forward with the annexation of Somerset Village and our goal is still to create a neighborhood that benefits the community with housing and aligns with Envision Longmont.”

Reached on Saturday, Karen Breslin, KARES’ Elizabeth-based attorney, said her clients have yet to explore the possibility of appealing the ruling.

“Of course we are disappointed in this outcome,” Breslin said. “The court’s decision allowed Boulder County to terminate the easement, assuming annexation occurs, by merely assessing a few elements of the county’s master plan.

“Essentially, the county said they didn’t want to bother analyzing the termination under the county land-use code, since ultimately the code wouldn’t apply.

“The problem is,” Breslin added, “the conservation easement called for a determination of consistency with the land-use code and made no exception for annexation.”

Kotlarczyk noted in his 15-page ruling that “plaintiffs have good-faith disagreements with Boulder County’s decision to conditionally terminate the conservation easement. But the Court is unable to conclude — as it must, to find for Plaintiffs — that Boulder County exceeded its jurisdiction or abused its discretion when it decided to conditionally terminate.”

Addressing the neighborhood group’s contention that the commission’s termination of the easement in August 2023 ran counter to Boulder County’s Comprehensive Plan and Land Use Code, the judge wrote that, “first, it plainly had jurisdiction to consider whether to terminate the easement; the terms of the easement give the County that jurisdiction. Second, while reasonable minds can differ as to the decision to terminate the easement and whether it was consistent with the Plan, the County did not abuse its discretion when it decided that conditionally terminating the easement (1) was consistent with the Plan because it supports affordable housing and development near existing municipal areas, and (2) was consistent with the Code, given the Code’s limited application to the facts here.”

Pointing out that the developer’s plan was for Somerset Village to be built on land annexed into the city of Longmont, not in unincorporated Boulder County, Kotlarczyk wrote that although the conservation easement required the county to determine that the proposed development is consistent with the current Boulder County Land Use Regulations, “the proposed development will not occur on unincorporated land in Boulder County to which the Code would apply. Rather, any development on the property will be subject to the Longmont Development Code. Nothing in the Code is therefore inconsistent with conditionally terminating the conservation easement.”

In February, Boulder District Judge Robert R. Gunning rejected the county’s motion to dismiss the lawsuit, even though his order upheld parts of the county’s claims. Since that ruling nine months ago, KARES changed its legal representation, and the case was passed to another District Court judge, Bruce Langer. When Langer retired in October, Gov. Jared Polis named Kotlarczyk, a senior assistant attorney general in the state’s Public Officials Unit and an assistant solicitor general, to fill the vacancy. Kotlarczyk’s Friday ruling came a month after he took his seat on the District Court bench.

The case in Boulder District Court is Keep Airport Road Environmental and Safe: Eric Scherer, Gwen Scherer, Greg Petrosky, and Michelle Romeo, plaintiffs, v. Boulder County Board of Commissioners, defendant, case No. 2023-cv-30652.

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