Judge orders Boulder County to refund millions to homeowners wrongly assessed for road improvements

Ruling: Commissioners exceeded jurisdiction

BOULDER, Colo. - A Boulder County District Court Judge has ordered County Commissioners to refund millions of dollars -- plus interest -- to the owners of 10,900 parcels of property that were wrongly assessed for road improvements.

Judge Robert Lowenbach ruled that Commissioners exceeded their jurisdiction and abused their discretion in authorizing and forming a Subdivision Paving Local Improvement District for the purpose of rehabilitating paved roads.

Commissioner Elise Jones told 7NEWS that the board has struggled for several years with how to fund the needed work.

Last year, commissioners asked voters to approve a tax increase to fix paved roads that have fallen into disrepair in unincorporated areas of the county. The voters said, “No.”  So the commissioners then established the Local Improvement District and began assessing property owners an average of $450 a year to pay for the repairs.

The homeowners sued claiming the assessments amounted to a new tax.

Chuck Wibby told 7NEWS that street maintenance is a core responsibility of government and should be paid for out of the existing tax base.

“We’re pleased with the judge’s decision,” he said. “It validates for us what we believed all along, that a local improvement district was for improvements not maintenance.”

The homeowners and commissioners are at odds over the term maintenance.

Wibby says re-paving is part of maintenance.  He says if they extend or add on to a road, “that’s an improvement.”

Jones told 7NEWS that, “We consider maintenance to be snow plowing and filling potholes.  We’ve done that over the years and will continue to do so.  The tricky part is how do you pay to reconstruct the roads after their life span has ended? That’s the unsolved question. That’s what we’re trying to figure out.”

Wibby says it’s a simple allocation issue.

“Up until the mid-90s, the County Commissioners would allocated approximately 8-percent of the property taxes that everybody paid, for road maintenance,” he said. “Beginning in the mid-90s, they reduced that from 8-percent to 1-percent."

The Judge’s order notes that “Prior to the mid-nineties, Boulder County included resurfacing and chip sealing of subdivision roads in its maintenance responsibilities.  In 1995, the Comprehensive Plan stated that ‘Priority shall be given to the rehabilitation of the County’s arterial and collector roadways through the use of the Road and Bridge Fund. Local access roadways within developed areas… shall be rehabilitated through special assessments or other funding mechanisms.  Primary funding responsibilities shall be assigned to the users benefiting from these improvements.’”

Jones says the County remains committed to trying to solve the funding issue.

“We don’ have any more money that we did before,” she said. “In fact, we have far less with the increased price tag of flood recovery.”

When asked what the next step will be, Jones replied, “We’re open to suggestions.”

She said they may go to individual subdivisions and ask homeowners if they want to form their own improvement district, but added, “That hasn’t worked in the past.”

Wibby said he believes the money is there and that it just needs to be reallocated.

Late Monday, the County sent out a news release stating that the subdivision re-paving plan for 2014 that was detailed in an earlier news release will no longer move forward as a result of the court’s ruling.

Wibby says that contradicts an earlier communication that the commissioners would “move forward with this year’s plans, independent of the legal outcome.”

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