A Boulder District Court judge has dismissed one of the two lawsuit that challenged the legality of Boulder County’s now-withdrawn proposal to develop a composting facility on county-owned open space property on N. 107th St.
District Judge Patrick Butler ruled Monday that the lawsuit filed in December by Lisa Battan, Brandon White and Victor Vargas, who own properties next to or near the property at 5762 North 107th St., was not “ripe for court review.”:
Butler wrote that he could not find, based on “the facts alleged by the plaintiffs, that an actual case of controversy” between Batan, White and Vargas and the defendant, Boulder County, violated any state law or the terms of an earlier county-held conservation easement over then-private property when the county purchased full ownership of the property.
Boulder County paid $169,625 for a conservation easement over the property in 1994, which restricted any possible future development on the land while it was in private ownership. The county then paid $985,000 to buy the property from its then private owner in 2018.
“Even if the plaintiffs’ action was ripe for review, the court cannot find the plaintiffs have standing” to file such a lawsuit, Butler said in his Monday ruling.
He wrote that he could not find, especially now that Boulder County has withdrawn its special-use land development application for the composting facility, that plaintiffs have alleged they’ll suffer a sufficient injury that would give them the standing needed to pursue the lawsuit.
Butler wrote that the plaintiffs have failed to allege specifically how the merger of the conservation easement with Boulder County’s subsequent full purchase of the property “will negatively impact the land, soil, and water resources of the property. The Property is currently being operated as open space. Plaintiffs’ allegations are premised on a future event, and do not support a finding of injury in fact.”
The plaintiffs also had claimed that use of county open space tax collections to buy the property violated provisions in Colorado Constitution’s Taxpayer’s Bill of Rights, or TABOR, when the county bought the property with revenues from Boulder County’s voter-approved open space sales tax.
The judge wrote that he could not find that the plaintiffs “have alleged sufficient facts to establish standing under TABOR. Plaintiffs assert the county purchased the property with open space tax with no intention of using the property for any open space purpose. The Court finds there currently are no plans regarding how to use this property. Any claimed injury in fact by the plaintiffs is speculative.”
Earlier this month, the county commissioners approved withdrawing the special-use application the county staff had had to file in order to go through the Land Use Code’s procedures for reviewing and reaching a final decision about whether to permit construction and operation of a compost facility at the North 107th Street location, which is south of Longmont and northwest of Erie.
Last Friday, all three commissioners said in separate interviews that the county will not consider any possible future development of a composting facility on the property at 5762 N. 107th St.
Rob O’Dea, a spokesman for the Open Space Preservation Alliance, which was co-founded by Battan, White and Vargas, said Monday that those three plaintiffs are considering whether to appeal Monday’s district court dismissal.
Still alive, as of Monday, was a second lawsuit filed by other neighboring property owners, Nancy Davis and her husband Jeffrey Davis, filed against the county over the composting issue site decision in December. That lawsuit, which Boulder County has also asked to be dismissed, is pending before District Judge Bruce Langer. The Davis couple has 21 days from last Thursday, when the county filed its dismissal motion, to respond to the county’s motion.
