Dispute over development on conservation easement remains unresolved

BOULDER — Nearly four years after it was first proposed, a plan to build 426 “affordable” and “attainable” homes in what had been a conservation easement southwest of Longmont remains in limbo in the court system, going through a revolving door of judges and attorneys.

A neighborhood group that sued to stop the development has changed its legal representation and tax status, and its case was passed last month to a third judge who had just been appointed to the Boulder District Court bench.

The Board of Boulder County Commissioners’ 2-1 vote in August 2023 to terminate what was known as the Kanemoto Estates Conservation Easement, upholding a unanimous county Planning Commission vote in March, had cleared the way for annexation of a 40-acre tract into Longmont and eventual construction of the residential units by developer Bestall Collaborative Ltd.

The panel added conditions designed to compel the developer to keep to its commitments to provide lower-cost housing in its proposed Somerset Village along the east side of Airport Road about a half-mile north of the Diagonal Highway. Principal Jack Bestall had first sought the annexation in April 2021, the first neighborhood meeting on the project was held in March 2022, and Bestall submitted a concept plan to the City of Longmont two months later.

Bestall 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.

In exchange for terminating the conservation easement, Bestall committed to pay $2.3 million into a county Parks and Open Space Department fund so that open space could be purchased elsewhere to make up for that being lost to development. He also noted that while the current conservation easement is private land, park areas within Somerset Village would be open to the public.

However, a group of neighbors of the potential project, formed as Keep Airport Road Environmental and Safe, or KARES, in September 2023 sued, asking Boulder District Court to overturn the commissioners’ decision.

The neighbors, including residents of the Clover Creek subdivision to the north of the proposed development, 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. In testimony before the commissioners’ vote, they also cited increased traffic hazards and the need for open space as the area’s population grows while also claiming that placing a high-density neighborhood at the edge of a city was inappropriate because shopping and public transit would not be near.

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.”

The Kanemoto family sold the land to Bestall’s Lefthand Ranch LLC for $1.22 million on Dec. 30, 2020.

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 contended 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.”

Boulder County on Oct. 5, 2023, 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.

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. He ruled that the commission’s action was the type that permitted a Rule 106 challenge.

Gunning dismissed all but one of KARES’ claims but said the court could rule on whether the county’s decision was “arbitrary and capricious.”

Since that ruling nine months ago, KARES changed its legal representation, and the case was passed to two different District Court judges.

KARES backers in April formed the Conservation Easement Preservation Society, a 501(c)(3) nonprofit, to make contributions for its legal fees on its GoFundMe page tax-exempt. When attorney Randall Weiner of the Boulder-based Weiner and Cording law firm withdrew from the case in May, the group hired Elizabeth-based environmental attorney Karen Breslin, who this year had unsuccessfully sought a place on the Democratic Party’s primary ballot to run for the District 4 congressional seat that was won last week by Republican Lauren Boebert.

The neighborhood group and the county exchanged briefs in July and August. Meanwhile, Gunning passed the case to District Judge Bruce Langer, who retired in October. To fill that vacancy, Gov. Jared Polis named Michael T. Kotlarczyk, a senior assistant attorney general in the state’s Public Officials Unit and an assistant solicitor general, and Kotlarczyk has taken on the lawsuit. He can either side with the county, ruling that the commissioners’ decision was not “arbitrary and capricious,” or side with the opponents and overturn the decision. Officials at the district court could not provide any timeframe about when a ruling might be issued.

Bestall had hoped to begin construction on Somerset Village in early 2025. However, the city of Longmont would be unlikely to schedule hearings on the proposed annexation until the lawsuit is resolved.

The case in Boulder 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. 2023-cv-30652.

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