Grounds for Opposition to Termination of the Kanemoto Conservation Easement
As per the 2007 amendment to the Colorado Planning Act 30-28-106. A majority of the Boulder County Comprehensive Plan (BCCP), the master plan, is now a binding statute after its inclusion into the Subdivision, Zoning, and Planned Unit Development regulations of the Boulder County Land Use Code (BCLUC). Compromising these sections is a violation of the Law.
The first paragraph of the Boulder County Land Use Code:
1-300 States, "The code shall be in accordance with and shall serve to implement the goals and policies of the BCCP." There are 152 references to the BCCP in the BCLUC. The overwhelming emphasis throughout the BCCP is for the Conservation and Preservation of Agricultural lands in Boulder County by limiting urban growth to compact Community Service Areas.
6-800 Non-Urban Planned Unit Development, Conservation Easements NUPUD/CEs are granted in perpetuity and must comply with the Current BCCP and BCLUC.
6-700 Boulder claims the Transfer Development Rights Intergovernmental Agreement is active. If it is active:
TDRs are forbidden on Nationally Significant Agricultural Lands, i.e. the Kanemoto property.
The maximum number of allowed units in a TDR is limited to 200. Not the 426 units projected by Bestal Collaborative.
Subdivided lots before August 17, 1994, as 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.
6-100 Development Plans and PUDs must conform to the BCCP. "To accomplish the preservation of those lands identified within the BCCP as agricultural lands of National, Statewide, and Local importance..."
6-400 "The mechanism to preserve these resources is a Conservation Easement which may not be developed."
6-700 In addition the last southern mile of Airport Road is a BCCP View Protection Corridor protected by the BCLUC. Boulder County has allowed the northern half of this VPC to be corrupted with numerous housing developments. The BCLUC forbids TDR receiving sites in VPCs. "TDRs shall not be located on Nationally Significant Agricultural Lands or corridors as identified in the BCCP" The Kanemoto property is located on both NSAL and within the Airport Road VPC.
Although the legal grounds to prevent the Kanemoto CE termination are overwhelming, the Boulder County Planning Commission ignored every single legal position without comment and voted to terminate the CE. Boulder County has a history of selling off the Landed Treasures of Colorado by ignoring their fiduciary responsibility to preserve and protect, gaining multi-million dollar payments in return,
The following items further define and support the previous sections of Law from the BCLUC.
1) The Kanemoto CE contract only allows termination under conformance with the Current Boulder County Comprehensive Plan (BCCP) and Boulder County Land Use Code (BCLUC). The numerous sections of the BCCP included in the BCLUC are Statutory Laws in Boulder County. The Kanemoto CE was established in 1982 utilizing the NUPUD/CE designation (pg Ag-2) which under the BCCP requires Boulder County to Conserve and Preserve (pgs CG-3, AG-4, GE-10, OS-1) the CE indefinitely (pg AG 1.13). After an exhaustive review of the BCCP, there are over 35 references requiring Boulder County administrators to preserve agricultural properties especially those protected by the NUPUD/CE designation (pg PPA-2, 2.03, 2.04).
2) The transfer of the 1982 CE into the Longmont Community Service Area/Longmont Planning Area (CSA/LPA) in 1996 was a Legal Violation of the previously established NUPUD/CE. The Kanemoto Conservation Easement is protected under the preexisting conditions of the BCCP. These legal protections have not changed since 1978 (pg IN-1) and in fact, have been reinforced several times since 1978.
3) Contrary to the January 2023 statement by Parks and Open Space (POS) there is no reference in Provision A of the Kanemoto contract allowing for termination by MERGER. In fact, the Colorado Legislature in 2019 forbids the Merger of CEs when a tax consideration has been employed. HB19-1264, C.R.S. 38-30.5-107. The BCCP encourages the issuance of a Tax benefit as a method of securing CEs. (pg OS-7) By legal convention, a court will likely assume a tax benefit was received unless proven otherwise. The Boulder County Commissioners will need to demand a tax document from the original owner, Colorado Dept of Revenue, or IRS to prove no tax benefit was gained in the original CE transaction. Otherwise, termination by Merger is forbidden.
4) The CE contract requires the Boulder County Commissioners to evaluate any termination with conformance to the BCCP and the BCLUC. They failed to consider any provisions of the BCLUC. They violated their obligation to conform to the State of Colorado contract law.
5) The Kanemoto Property is designated by BOTH Boulder County and the USDA as Prime Farm Land (BCCP Map 31) which places it in the category of Nationally Significant Agricultural Land. The BCCP disallows the placement of Nationally Significant Agricultural Lands into TDR receiving sites. (PPA 3.04) The BCCP also requires Boulder County administrators to conform to State and National programs preserving agricultural properties. (pg AG-5, AG 1.07)
Map 31, Shows the property is Designated as Nationally Significant Agricultural Land. Link to map PDF.
6) Paragraph 3 of the Kanemoto CE contract requires that both Provision A AND Provision B must apply. There is no severability clause, so both Provisions A AND B are required to manipulate any change in the contract. Provision B of the Kanemoto Contract does not provide for any termination of the Conservation Easement. It only allows for a Transfer of the Conservation Easement. Conservation Easements can only be transferred to entities authorized by the State of Colorado Department of Conservation as having a recognized Conservation mission. Since the CE can only be transferred to a qualified entity, the use of the term Terminate in paragraph 3 is understood to only apply when the CE is impossible to maintain. This is explained in the IRS code 170(h), the Boulder County POS CE Program Policies and Practices, Restatement (Third) of Trusts (2003), Uniform Law Commission, Uniform Trust Code, and Restatement (Third) of Property Servitude. (2000). In these references Judicial review and Cy Pres doctrine are required. If any ambiguity is perceived with an interpretation of the terminate vs transfer contract language, Colorado Contract Law requires the only resolution is by a Jury Trial. It cannot be interpreted by a governmental administrative body.
7) The POS Policies and Practices have evolved to support the BCCP. There are 33 references to CE perpetuity in the POS document which also requires Judicial Review concerning any form of CE Termination to prevent conflict with State and National law: pg 6 #5. Jeopardize Boulder County’s ‘qualified holder’ status under the State of Colorado and IRS regulations or undermine the public’s confidence in the County as a holder of perpetual conservation easements;
8) The BCCP has also designated the one-mile strip of Airport Rd from Rt 119 north to Pike Road as a View Protection Corridor. (Map 33) It is apparent that Boulder County has thoroughly Corrupted the northern 1/2 mile of this VPC. The views have been permanently obstructed by multiple housing developments. This is an undisputed violation of the approximately 15 BCCP provisions requiring the preservation of scenic views along this corridor. (pgs TR-6 TR 8.03, ER-5 ER 1.04 etc.) In addition to the Kanemoto proposal for a high-density development with multiple-story buildings, Boulder County has continued violating the VPC with the recent approval of the Westview Acres subdivision.
Map 33, View Protection Corridor. Pike Rd south to 119 is a VPC. Link to map PDF.
9) The BCCP applies a geologic building constraint (pg GE 2, Map 15) to the Kanemoto property due to High Soil and Bedrock Swell Potential. Building approval requires evaluation by a professionally registered geologist. (pg NH 2.01.04). Has Boulder County received a report detailing the building constraints required for this property? Is this land suitable for safe housing construction? If no clearance has been received approval to build on this property is forbidden.
Map 15, Geologic Hazard & Constraint Areas. This maps shows the property is in a High soil swell area. Link to map PDF.
10) We are all aware of the absolute devastation caused by the recent Marshal Fire. Rather than continue with a focus on high-density development, would it not be wise to reconsider the housing setback requirements? The housing in Colorado is much too congested.
11) Continuing research through the Boulder County Clerk's office has revealed a very significant number of missing Boulder County CEs over the last few decades. Due to the issues mentioned above, there will be retroactive research to determine if this great number of terminated CEs were properly managed or if their termination was motivated purely to create a multimillion-dollar tax base and to feed multimillion-dollar funds into Boulder County POS. The residents of Boulder County are questioning whether this may be a legal Breach of Trust concerning the fiduciary responsibility of Boulder County to protect and preserve the Landed Treasures of Boulder County.