Combatting disinformation
Rebuttal to Longmont City Council Member
Oct 31, 2023
[City Council Member name],
My name is [Deleted for privacy], I'm a resident of the Clover Creek neighborhood in Longmont. I very much appreciate your long history of service to our city. I'm wondering what your stance is on the annexation and subsequent termination of the Kanemoto Conservation Easement on south Airport Rd for the construction of a high-density housing project. lf re-elected, would you vote in favor of, or against the termination of this CE?
Thank you,
[Deleted for privacy]
Black text = original response from Longmont City Council Member
Red text = KARES’ rebuttal to disinformation
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[Deleted for privacy],
Thank you for asking. The Kanemoto property is very confusing. The conservation easement has already been lifted. No, The County has stated the termination is only effective if the City of Longmont annexes the property. The property is not owned by Longmont, it is owned by the County… No, the property is privately owned. The County only manages the CE. …and the Commissioners were the only deciding factor in taking off the CE. The Kanemoto family gave this property to the county for future development. No, the CE contract is an agreement between the County and the Kanemoto family for Preservation of Agricultural land. It was not purchased with open space tax dollars. All space within the county and city, as applied to our maps, is labeled 'open space' if it isn't developed. This is deceiving as realtors and developers sell property based upon that labeling.
Now the developer has to purchase the property from the county if they want Longmont to annex it for development. No, the County does not own the land. The developer has offered a 2.32 million dollar payment for the County to terminate a perpetual Conservation Easement. I can think of no reason as to why the council would not have a majority vote to build there if the property is purchased. See detailed legal reasons to deny annexation below.
This isn't what you wanted to hear, I know.
Respectfully,
[City Council Member]
KARES response: Sent Oct 31, 2023
[City Council Member],
Several of my neighbors have asked me to clarify the Kanemoto termination/annexation landscape. The Kanemoto Conservation Easement is NOT terminated. The Commissioners voted on August 15 to allow the City of Longmont to consider annexation. The CE will only terminate if the City annexes the property. Please see the Aug 15 video recording where the Boulder Planning Officer, the Longmont Planning Officer and the Boulder Attorney clarify that the the Conservation Easement remains intact if the City prefers to not annex the property.
See the Audio recording of the Aug 15 Commissioner's meeting:
1) Hannah Hippely, Boulder Planning Division Manager 1:09:00 to 1:10:15. Longmont annexation is required to complete release of the CE.
2) Jennifer Hewitt- Apperson. Longmont Senior Planner. 1:18:00 to 1:19:00 Longmont annexation is required to complete release of the CE.
3) Erica Rogers. Boulder Attorney. 3:17:45 to 3:18:00 "If the property is not annexed the project will not go forward"
No Annexation means No termination of the CE.
You have commented that the owners had given the property for future development. This is not so.
The very fine Kanemoto family were significant real estate developers. They could have asked for a large Subdivision approval in 1982. Why did the Kanemotos ask for a CE? Because it was intended to be a PRESERVE.
The 1982 Conservation Easement contract paragraph 2 specifically says:
"Whereas, the Grantee [Boulder] has determined that to accomplish the purpose of preserving agricultural land, it is desirable to acquire a Conservation Easement which preserves open land for agricultural purposes within the above-described property, and Grantor [Kanemoto] is willing to grant the same."
You ask if there are reasons why the City would not annex the property?
1) It is an inherently perpetual Conservation Easement under IRS regulation. (See below.)
2) There are many other legal issues provided below for your review. This is why there is a lawsuit currently pending in Colorado District Court. (See below.)
3) Most importantly the vast majority of voters favor landscape preservation over chronic construction. The resident voters of Denver recently voted by 60% to retain the Park Hill Conservation Easement rather than allow housing construction on the CE.
4) No one disagrees with providing affordable housing. But, NOT on a Protected Conservation Easement. The City and County are acting with negligence as they ignore the multiple depressed areas within the City in desperate need of revitalization. Jennifer Hewitt-Apperson, the City Planner, admits the CE development plan will only require 12% affordable housing. See the Commissioner meeting link above at 1:20:00 to 1:20:30. Will we destroy a Landed Treasure of Boulder County for such a trivial level? And even if it were 100% it will be absorbed into the City of Boulder economic zone as a bedroom community. Due to the university nothing is affordable adjacent to the City of Boulder and never will be. The affordable housing debate on a Conservation Easement is unsupportable.
This is becoming an explosive political issue.
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For your further consideration, we strongly encourage each ...[Council Member]... to be aware of the legal details concerning the Kanemoto contract. Paragraph 3 does have a reference to the term, terminate. However, since Conservation Easements are inherently perpetual, the terms of termination defined in the contract are highly restrictive. This is because under IRS regulation 170(h). Treasury reg 1.170A-14(g)(6) You can only terminate a Conservation Easement when it may "make impossible or impractical the continued use"... of the Conservation Easement.
What are the conditions mentioned in the CE contract? Any termination must conform to the Boulder County Comprehensive Plan and the Boulder County Land Use Code.
Section 6-700 BCLUC applies.
G-3 TDRs are forbidden on Nationally Significant Agricultural Lands. i.e. the Kanemoto property.
G-3 TDRs are forbidden in View Protection Corridors. i.e. Airport Road
D-2 Maximum allowed units in a TDR are limited to 200. Not the 426 units projected by Bestal Collaborative.
J-3 Subdivided lots before August 17, 1994 are not allowed in TDR receiving sites.
Proving that the placement of the protected 1982 NUPUD/CE Kanemoto property into the Longmont CSA in 1996 was a gross legal error.
The CE Land Plat requires the "...use of the public forever..."
In addition the final section of the Kanemoto Contract also requires that any transfer of the CE must "condition or restrict the transfer". There is absolutely no provision for random termination.
Only Ashley Stolzmann correctly applied the law to her decision the other two commissioners avoided these legal conditions.
We encourage all ...[council members]... to review the Research Section of our website where your will find 1 1/2 years of research including the exhaustive analyses of the BCCP and BCLUC.
Let me leave you with the Position statement of Boulder Parks and Open Space.
CE Terminations should not "Jeopardize Boulder County's Qualified Holder Status under State of Colorado and IRS Regulations or Undermine the Public's confidence in the County as a holder of PERPETUAL Conservation Easements." CE Policies and Practices pg 6 #5
https://www.stopkanemotosubdivision.com/
Thank you,
Norm Gee
For KARES