Trial continued in case of warring metro districts

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By Vicky Gits

A trial in the longstanding case of two warring metro districts has been continued after one of the attorneys on the Ken-Caryl Metro District side suffered a medical emergency.

The trial pitting the Ken-Caryl district and the Plains Metropolitan District in Jefferson County District Court was scheduled to start Monday, June 16. A new trial date has not been set, although the attorney, Richard Shearer of Stapleton Ireland of Denver, is reportedly back at work on a part-time basis.

At stake in the case are $3.5 million worth of recreational facilities — including a swimming pool, two tennis courts and a park for soccer and softball — allegedly owed to the 11,000 residents of Ken-Caryl Ranch. There are 454 homeowners and property owners in the Plains.

Residents of the Plains are also members of the Ken-Caryl Master Association and are allowed to use the group’s swimming pools for free. But they don’t pay taxes to Ken-Caryl.

The dispute has been simmering since 1985, when the service plan for the Plains Metro District was created, but gained momentum in 2002 when the Plains district tried to dissolve itself.

The Plains Metro District includes mainly the commercial buildings along Ken-Caryl Boulevard and Shaffer Parkway. Ken-Caryl Ranch is a residential enclave of some 3,600 homes on 4,800 acres of foothills property studded with red-rock outcroppings.

The lawsuit played a prominent role in the recent successful Ken-Caryl mill levy election as opponents tried to gain leverage by opposing the legal fees spent by the master association to fight the Plains contingent, mainly represented by Kathy Tourney. Tourney also ran for the Ken-Caryl board but was defeated.

“The KCRMD lawyers are the only ones who are winning, and it is at the taxpayers’ expense,” says Tourney’s campaign material. “Do you think the KCRMD lawyers are going to win a judgment to convert a service plan into a contract? There is no precedence.”

Tourney calculates the battle against Plains Metro has cost Ken-Caryl taxpayers some $500,000 over the years.

The service plan for Ken-Caryl Ranch Metro District includes amenities, like cable television, that the district has never provided its residents, Tourney said. That proves a service plan is not a contract.

The document also states, ironically, “This service plan is not and should not be a definitive and unwavering document inflexibly restricting those elected to the board of the directors ee to specific timetables and decisions.”

Certain services were to be provided on the basis “of need and the ability to finance them,” the service plan says.

The foundation of the Ken-Caryl Ranch argument is that JR Developers, the developer of the Plains community, “agreed to build, and was required to build” the recreational facilities as a condition of Jefferson County approving the Plains’ service plan.

The document, “Service Plan for Plains Metropolitan District, April 1985” on which the claim is based, stipulates the construction of streets, bridges, lighting, landscaping and recreational facilities. There was no timetable provided for the process, just a proposed sequence of events.

Plains promised to lease the rec centers to the Ken-Caryl Master Association at no cost until Plains paid for any debt incurred in the construction process. Once the debt was paid, Ken-Caryl would own the properties.

In 2004, Plains sought to dissolve itself without building the rec center, prompting Ken-Caryl Ranch Metro District to ask the court to include the Plains area in Ken-Caryl’s jurisdiction. This apparently forced Plains to file a lawsuit saying the ranch had wrongly sought to include Plains in its tax base.

The ranch tried to settle the issue by agreeing to set aside a court order including Plains within the Ken-Caryl Metro District, but refused to back down on the issue of the rec centers.

What Plains wants

A supporter of the Plains metro district says Ken-Caryl is overreaching.

“A service plan is not a legal contract. It is a proposal to the governing jurisdiction, in this case Jefferson County, for what the builders hope to create. Nowhere in the United States has a service plan been upheld as a contract,” said Dr. Paul Motzkus, president of the Plains Metropolitan District, in a letter to the Columbine Courier in March.

“Nothing in a service plan can occur unless it is needed and funded by a vote of the property owners of the (Plains Metro District),” Motzkus said.

The foundation of the Plains Metro District argument is that “The 1985 Plains Service Plan is just that – a plan. The plan does not contain any mandate or obligation to build recreational facilities,” according to a brief on behalf of the Plains district to dismiss the case. (Jan. 23, 2007).

John Watson, the attorney for Plains, argues: “It was not practicable for Plains to build many facilities ee which the 1985 Plains plan authorized because the facilities were not needed and Plains did not have the financial wherewithal to build them. In 1985 the Plains area was not developed and had no population,” so the organizers were only guessing at the potential.

“Today, 20 years later, Plains’ residential has reached only 20 percent of projection, commercial development is only 70 percent and residential/commercial combined is less than half (47 percent) of projections,” the lawsuit says.

The attorneys for Plains asked the court to dismiss the case based on the statute of limitations. On Sept. 26, 2006, District Judge Tamara S. Russell denied the motion to dismiss on grounds that there are “unresolved genuine issues of material fact” regarding when the statute of limitations would have been triggered and when Ken-Caryl Ranch should have known Plains wasn’t going to build the recreation facilities.

The judge concluded that the issue of whether Plains is bound by the service plan should be decided by a jury.