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HomeMy WebLinkAboutMemorandumP.O. Box 640 7 3 GARFIELD COUNTY COUNTY ATTORNEY'S OFFICE Glenwood Springs, Colorado 81602-0640 Phone 945 -9158 MEMORANDUM TO: Board of County Commissioners FROM: County Attorney's Office 4,6( SUBJECT: Board's Review of District Service Plan DATE: March 1, 1983 INTRODUCTION The purpose of this memo is to assist the Board in its responsibility to make a. decision after the March 2, 1983 public hearing in regards to the Service Plan for the Parachute/Battlement Mesa Park and Recreation District (hereinafter "Rec District "). Colorado Statutes, at Section 32 -1 -203, CRS '73, as amended require that the Board approve, deny or approve with conditions, the proposed service plan. In so doing, the Board is acting in a quasi- judical capacity, and must base its decision on those criteria for approval which are in the Statute, and evidence at the public hearing. It can be anticipated that a decision of denial will be reviewed by the District Court. HISTORY The Recreation District issue has been around for some time, and actively, at least, for three years. In 1981, both the Parachute District proponents and the West Garfield District proponents presented service plans to the Garfield County Commissioners. Upon the advice of the County Attorney, the Board ruled that it did not have to hold hearings on the service plans which had been filed, since no petitions of tax paying electors accompanied said service plans. On March 23, 1981, the Board cancelled the scheduled public hearing as to the Parachute/Battlement Mesa service plan, and made a similar ruling as to the West Garfield Recreation service plan, which, at that time, had not been scheduled for public hearing. In August of 1981, Mr. Freedman refiled the service plan for the Parachute/Battlement Mesa Park and Recreation District with the necessary number of signatures on a petition to force the Board to hold a public hearing. Sometime prior to the scheduled date of September 1, 1981, the public hearing was cancelled since the Parachute proponents agreed to enter into negotiations with the West Garfield group as to the Recreation District question. Board of County Commissioners March 1, 1983 MEMORANDUM, Page Two On January 20, 1983, Mr. Freedman refiled the service plan for the Parachute/Battlement Mesa Park and Recreation District. As you know, the public hearing on this matter has been set for March 2, 1983 at 1:00 p.m. in the Commissioners' Meeting Room. On February 23, 1983, the Garfield County Planning Commission held a public meeting in the Town Hall of Parachute to consider what recommendation it would make to the Board as to the Rec District service plan. Upon a vote of four to one, the Planning Commission voted to recommend denial based upon the larger impact area from oil shale other than the RE -16 School District, the lack of need for the District at this time, a lack of demonstration of need from the citizens in the area, and a general feeling that some accommodations should be made with the West Garfield District for a split -up of the tax base. Attached is a copy of their written Resolution. INTERESTING FACTS ABOUT RECREATION DISTRICTS A recreation district is a quasi- municipal corporation, which has such powers as are given to it by Statute as are necessary to perform its limited function. A park and recreation district is specifically provided for in the Special District Control Act (32 -1 -101, et.seq., C.R.S. '73, as amended), and is a taxing entity. A park and recreation district is limited to a tax assessment of not more than four mills (32- 1- 1101(1)(a)(3)), which may be increased by one mill to a total of five mills upon a vote of the people. The Special District Control Act, at Section 307, has an express exclusion provision as to park and recreation districts. Any tract of land of at least forty acres, and used primarily and zoned for agricultural purposes, shall not be included in a park and recreation district for purposes of taxation without the written consent of the owner. Therefore, the tax base will not include agricultural property, by and large. Once formed, a park and recreation district is a government entity which has all the attributes of special districts. It has a governing Board, which is elected by the people, it has the ability to annex property, and has the ability to bond and to enter into contracts. Most importantly, it has perpetual existence, and in the case of Parachute/Battlement Mesa Park and Recreation District, it would effectively prevent access to the tax base in Parachute Creek by any other recreation district. THE APPROVAL, PROCESS The approval process appears to me to be somewhat unique, since it puts legislators, i.e. the Board, in a position of technically reviewing a service plan. Then the Court must supervise an election. Finally, the voters decide whether they want the district or not. How a district is formed goes like this: A service plan is filed by identifiable Board of County Commissioners March 1, 1983 MEMORANDUM, Page Three petitioners, which filing triggers a public hearing. Pursuant to Section 203, the Board must approve, deny or approve with conditions, based upon expressed criteria as to whether the service plan demonstrates a need for the district, whether the district has the ability to do what it wants to do, and whether said district is compatible with the County master plan and other things. If the Board determines that the information is incomplete, or that • there is not compliance with any of the criteria, the Board may conditionally approve the service plan upon a future demonstration of satisfactory evidence of compliance with the criteria. In this case, the public hearing is continued until an unspecified future date. In the case of denial, Section 206 is clear that Petitioners have a right to file suit in the District Court to determine if the Board's actions are arbitrary, capricious or unreasonable. In the case of approval, the Petitioners would then file a petition in the District Court containing the signatures of ten percent (10 %) or one hundred of the tax paying electors of the proposed special district, whichever number is smaller, which petition then triggers review by the District Court as to procedural correctness. The District Court cannot act on a petition for organization without a Resolution from the Board for approval of the district. PUBLIC HEARING BEFORE THE BOARD OF COUNTY CISSIONERS A public hearing, in regards to approval of a service plan, is different than a land use matter, since only interested parties are allowed to testify at this hearing. Interested parties are the following: a) The Petitioners; b) The governing body of any existing municipality or special district which has levied an ad valorem tax in the proceeding tax year, and which has boundaries within a radius of three miles of the proposed district boundaries; c) Persons residing in the proposed district; and d) Parsons owning property within the boundaries of the proposed district, and who reside in the State of Colorado. Please note, that persons who reside outside of the district or municipalities,.which lie at least three miles from the boundaries of RE -16, are not interested parties, and therefore, cannot testify. However, the meeting is open to the public and they can attend. I will leave the question up to the Chairman as to whether such persons can ask questions of witnesses. Board of County Commissioners March 1, 1983 MEMORANDUM, Page Four It is very important to note that Section 203(4) states: The findings of the Board of County Commissioners shall be based solely upon the service plan and the evidence presented at the hearing by the Petitioners, Planning Commission and any interested party. This is the effective exclusion of persons who are not interested parties. Following the public hearing, the Board has twenty (20) days in which to prove a written Resolution of which approves, denies or approves with conditions. CRITERIA FOR APPROVAL I am enclosing a copy of Section 203, which contains the criteria upon which a service plan is approved or denied. These criteria are set forth in Section 2. It should be noted that language of Section 2 is in the negative, i.e. "the Board shall disapprove the service plan ". From a lawyer's point of view, it is always very difficult to prove a negative, which I interpret to mean the State Legislature wanted service plans to be approved by the Board, unless they were seriously flawed. In regards to the criteria, your Planning Commission has based its denial upon criteria to a), b) and c), which generally has to do with the needs of the Community for the recreation district, or conversely, what facilities and programs the district would provide that are not already being provided. In addition, the Planning Commission generally based its denial also on g), which is lack of compliance with the master plan. The Planning Commission did not base its denial on the question of the provided economic insufficient service in the area, or the financial ability of the proposed district to discharge its proposed indebtedness. THE DECISION OF THE BOARD OF COUNTY COMMISSIONERS It is inappropriate for me to suggest to you what decision you should make. However, I am attaching an outline of analysis, re: the Recreation District, which I gave to the County Manager, Stan Broome, to assist him in regards to his formal written recommendation to the Board, which points out many technical problems in the service plan. Also enclosed is a letter from Roy Fronczyk as to the technical merits of the service plan. These are provided for information purposes. Stan will make the public presentation of the staff position. It is my recommendation that, after the presentation of the evidence, that the public hearing be closed, and that a decision date be scheduled for twenty (20) days later for the vote on the written Resolution. /sr Enclosure MaIORANDUM TD: Dennis Stranger, Director Department of Development 'ieFROM: Earl G. Rhodes Garfield County Attorney DATE: February 2, 1983 SUBJECT: Parachute/Battlement Mesa Park and Recreation District This is in response to your request to me of February 1, 1983, as to information about the above matter. Attached please find copies of the Colorado Statutes relating to Special Districts found in Article 1 of Title 32 of the Colorado Statutes. Of particular importance is the Special District Control Act (32 -1 -201), et.seq., which governs the role of the Board of County Commissioners in the approval process. You have asked me my opinion in regards to the Planning Commission's responsibilities in regards to this matter. Please make reference to Section 32- 1- 204(2), which provides: ...the Service Plan submitted by the Petitioners for the organization of the proposed Special District shall be delivered by the County Clerk and Recorder to such Planning Commission. The County Planning Commission or a Regional Planning Commission shall study such Service Plan and present its recommendations consistent with this Part 2 to the Board of County Commissioners. The presentation of the Planning Commission's recommendation shall be made at the public hearing for the Board of County Commissioners, as provided for in Section 204. The significance of this can be found in Section 203(4), which provides that: The findings of the Board of County Commissioners shall be based solely upon the Service Plan and evidence presented at the hearing by the Petitioners, Planning Commission and any interested party. Because of the restrictive definitionof interested party (found in Section 204(1)), the recommendationof the Planning Commission will carry significant weight, sinceit will be the only opportunity for persons who are not either the Petitioners or a defined interested party to have input as to the Board's decision. Dennis Stranger February 2, 1983 MEMORANDUM, Page Two No doubt, the question will be raised as to what the Planning Commission may consider in terms of its recommendation to the Board of County Commissioners. In Section 204(2), the phrase is used that the Planning Commission's recommendation shall be "consistent with this Part 2 ". I interpret this to mean that the Planning Commission should consider the Service Plan based upon the same criteria that will be used by the Board of County Commissioners in its approval /denial. This criteria is found in Section 203. Of particular importance to the Planning Commission should be criteria 1(g), which is whether the proposed Service Plan is "in substantial compliance with a master plan adopted pursuant to Section 30 -28 -108, C.R.S. 1973 ". As a general statement, the other criteria have to do with the need for the District, the capacity of the District to meet that need and the compatibility of the District with other planning guides in the proposed service area. It is my feeling that the Planning Commission's recommendation and "study" should go beyond planning issues into the question of need and financial viability of the proposed District. You have asked my opinion as to advertising and hearing requirements in regards to the above Service Plan. Please be advised that there is no public hearing requirement as to the Planning Commission. Therefore, the Planning Commission activity should be conducted at a public meeting where any person can make a statement, so long as that statement is deemed relevant by the Chairman of the Planning Commission. The significance of this is that persons who would not qualify to be interested parties, as defined by the Statute, may make statements before the Planning Commission. The specifics of the notice and hearing process, as to the public hearing before the Board of County Commissioners are set forth in Section 204(1). It is my present understanding that the attorney for the Town of Parachute, Bob Slentz, will handle these details. You have asked my legal opinion concerning the adequacy of the application. I am not presently in a position to make any comments of the adequacy of the application, although I am prepared to make some preliminary comments as to the completeness of the application. This is based upon the statutory requirements for a Service Plan, as set forth in Section 202(2). As to two specific things, standards of construction and estimates of cost, I find that the Service Plan provides no information as to these matters. As to the requirement for preliminary engineering or architectural surveys, I find the Service Plan to be complete, but most likely not adequate. In regards to the financial survey and the description of the facilities to be constructed, I find it complete, although most likely not adequate. Dennis Stranger February 2, 1983 MEMORANDUM, Page Three It is my opinion the completeness of the Service Plan is not a jurisdictional prerequisite to a hearing by the Board. This is so since the Statute at Section 202(1) requires that a hearing be set prior to the staff's analysis of the Service Plan. However, it is my opinion that incompleteness of the Service Plan would prevent the Board from approval of the Service Plan in accordance with Section 203(1)(a), and if approved, would require the approval to be. in accordance with 203(1)(c). I hope this Memo is of some assistance to you. /sr