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Rechberger v. Boulder County Board of County Commissioners

Court of Appeals of Colorado, Second Division

April 4, 2019

David Rechberger; Nicollette Munson; Rolf Munson; Laurel Hyde Boni; Dinah McKay; Donald Sherwood; William Swafford, Jr.; Marilyn Kepes; Donald Wrege; and Douglas Johnson, Plaintiffs-Appellants,
v.
Boulder County Board of County Commissioners and Boulder County Housing Authority, Defendants-Appellees.

          Boulder County District Court No. 17CV30818 Honorable Nancy W. Salomone, Judge.

          Chipman Glasser, LLC, David S. Chipman, John M. Bowlin, Denver, Colorado, for Plaintiffs-Appellants.

          Benjamin Pearlman, County Attorney, David Hughes, Deputy County Attorney, Catherine Ruhland, Assistant County Attorney, Boulder, Colorado, for Defendants-Appellees.

          OPINION

          DAILEY JUDGE.

         ¶ 1 Plaintiffs David Rechberger, Nicollette Munson, Rolf Munson, Laurel Hyde Boni, Dinah McKay, Donald Sherwood, William Swafford, Jr., Marilyn Kepes, Donald Wrege, and Douglas Johnson appeal the district court's order dismissing their complaint against defendants, the Boulder County Board of County Commissioners (the County) and the Boulder County Housing Authority (BCHA), for lack of jurisdiction and failure to state a claim upon which relief could be granted. We affirm.

         I. Background

         ¶ 2 Plaintiffs alleged that the County reneged on promises it made in a 1993 campaign to solicit support for a referred ballot measure raising taxes for the purchase and maintenance of "open space" around their community.

         ¶ 3 In their complaint, plaintiffs alleged that

• They reside or resided on taxable real property they own or owned in the Gunbarrel Public Improvement District (GPID), which was created in 1993 via a County resolution for the purpose of "provid[ing] for the acquisition, construction, and installation of open space areas and public parks."
• The Board of Directors of the GPID - which comprises the same members as the County - called a special election in 1993 to raise, over eleven years, an additional $2.535 million in property taxes to purchase land and dedicate it as "open space" off limits to residential development.
• The 1993 Boulder County Election Notice accompanying the proposed tax increase included a statement that "[t]he Boulder County Commissioners have indicated that, subject to the passage of this issue and the County Open Space tax, the County will provide a matching contribution towards open space purchase within the [GPID] up to a maximum of $1, 900, 000."
• Similarly, a campaign flyer, authored by the County and others, noted, with respect to a proposed increase in the Boulder County Sales Tax, that the additional "funds would provide the 50% match that the County Commissioners have promised to support Gunbarrel's Open Space ballot item. If this item passes, Gunbarrel residents will directly see the benefits in open space purchased within Gunbarrel - to the tune of or about $1.9 million dollars."
• By these statements, the County "induced electors to tax themselves by committing to match the funds generated by the Gunbarrel residents up to $1.9 million."
• After "GPID electors passed the proposed tax increases," the County authorized spending over $3.6 million for the purchase of 256 acres of public open ...

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