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Neighbors sue to reinstate Kanemoto easement 

LONGMONT — The neighborhood group that opposes a planned housing development southwest of Longmont is suing the Board of County Commissioners in Boulder County, 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 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.

On Tuesday, the last day a commission decision could be legally challenged, residents of the Clover Creek subdivision to the north who had organized into a group called Keep Airport Road Environmental and Safe, or KARES, sued the county board in Boulder County District Court, asking the court to reverse the board’s decision.

The lawsuit — filed by KARES as an entity along with members Eric and Gwen Scherer, James and Kelly Potter, Greg Petrosky and Michelle Romeo — asks the district court to issue an injunction against the easement’s termination and to review the board’s decision. It contends that the termination violated state law and that the plaintiffs’ property values will decline if the development is built. The lawsuit alleges that the county “acted arbitrarily and capriciously, and abused its discretion, by disregarding the express terms” of the conservation easement.

KARES, which claims about 70 members, has vocally opposed the planned subdivision, citing increased traffic hazards and the need for open space as the area’s population grows while also contending that placing a high-density neighborhood at the edge of a city was inappropriate because shopping and public transit would not be near. They launched a GoFundMe page to pay for legal representation, and attorney Randall Weiner of the Boulder-based Weiner and Cording law firm wrote to the panel contending that ending what’s known as the Kanemoto Estates Conservation Easement would be in conflict with the Boulder County Comprehensive Plan, and that the county’s designation of the easement in 1996 as a future development site also violated the comprehensive plan.

In a statement sent to BizWest on Wednesday, the neighborhood group said “KARES and its members have submitted hundreds of comments to the Boulder County planning board and commissioners, and only one of the three county commissioners has taken our significant legal, traffic, and quality-of-life concerns to heart. We are hoping the District Court will step in to reverse the commissioners’ decision and protect Boulder County’s precious open space because the county government refuses to.  KARES is not opposed to new housing in Boulder County, but KARES is opposed to new housing on conservation easements in Boulder County.”

Bestall said Wednesday afternoon that he had yet to read the complaint, but noted that “it’s disappointing that KARES is willing to go this far and spend taxpayer money on something that the county has already decided is proper and has the opportunity to respond to the housing crisis that we’re in. We’ll watch this, but as to the claims that have been made in the hearings, the county felt that they didn’t have merit.”

Bestall said Somerset Village “meets the intergovernmental-agreement terms, and it’s an opportunity to bring forward middle-tier housing that we really need.”

A statement emailed late Wednesday from the office of the county commissioners said that “Boulder County has been notified of a lawsuit filed in Boulder District Court related to the Boulder County commissioners’ decision on Aug. 15, 2023 that termination of the conservation easement on Kanemoto Estates Outlot A is consistent with the current Boulder County comprehensive plan and Boulder County land-use regulations. As a result of the decision, the applicant plans to apply for annexation of Kanemoto Estates into the City of Longmont. Upon annexation, the applicant is proposing development that includes affordable housing. The county attorney will file a response to the lawsuit as provided by court rules.”

Approved in 1982, the Kanemoto Estates easement consists 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 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.”

Among other complaints, the lawsuit alleges a conflict of interest involving Ron Stewart, a former county commissioner and 17-year director of the county’s Department of Parks and Open Space, and his son Sean Stewart, an attorney with the Lyons Gaddis law firm, who has been representing the developer.

After the commission’s vote to terminate the conservation easement, the lawsuit says, “plaintiffs discovered that the attorney hired by Somerset Village to act as its legal counsel in its efforts to terminate the Kanemoto CE is Sean Stewart, Ron Stewart’s son. Sean Stewart sat as the sole representative of the landowner, with Jack Bestall, throughout each of the Planning Commission and County Board meetings on this matter.”

Citing the fact that Bestall has committed to providing the Parks and Open Space Department with $2.32 million in return for the termination of the Kanemoto easement so that it can purchase land for open space to replace what would be consumed by the subdivision, the lawsuit alleges that “Sean Stewart negotiated with the POS Department to determine the amount and manner of the landowner’s $2.32 million commitment to the POS.”

The lawsuit quotes a written policy in the Boulder County Personnel and Policy Manual that states that “an elected official or employee shall guard against any relationship which might be reasonably construed as evidence of favoritism, coercion, unfair advantage, or collusion in the performance of official duties.”

The lawsuit claims that, “by allowing Sean Stewart to negotiate with it on a first-of-its-kind issue involving the termination of a Boulder County conservation easement, where Ron Stewart had staked a position in favor of the termination, and where millions of dollars were being committed to the POS Department’s open-space purchase program, defendant and its employees engaged in a transaction with Boulder County with a relative or business entity in which they have [an] indirect financial interest. Given his father’s continuing influence on matters involving the POS Department, Sean Stewart’s role and actions before the Planning Board and commissioners as counsel promoting Somerset Village’s efforts to terminate the Kanemoto CE presented the appearance of impropriety, if not an actual conflict.”

Further, the suit alleges, “Sean Stewart’s potential conflict of interest was not disclosed to the public in any public forum.”

Calls requesting comment from Sean Stewart had not been returned by BizWest’s Wednesday afternoon deadline.

Source: BizWest