The Long Road to Road Repair, by Brian Wahlert, January 2015

The most significant economic issue facing our community today, to the tune of many thousands of dollars per household, is our roads’ state of disrepair and efforts to finance repairs. In the judgment of the courts, Boulder County is guilty of “neglect of its dedicated subdivision roads... While it clearly had the duty to maintain those roads, the County did not perform that duty” (Judge J. Robert Lowenbach’s July ruling overturning the LID). To date County policy is unchanged, though, and repair costs continue to mount. What follows is a brief history of the issue with a focus on the two court rulings during the second half of 2014.

In 1995, the Boulder County Comprehensive Plan was updated to state that going forward, upkeep of arterial and collector roads would be prioritized over subdivision roads. By 2009 many subdivision roads that had been starved of routine upkeep like chip sealing now required full reconstruction at a much higher cost. A Subdivision Paving working group was formed to advise the County on how to finance this needed work and several attempts were made to get residents of county subdivisions to pay for rehabilitation of their roads via special assessments over and above their regular property taxes:

  • In 2010 a county-wide local improvement district (LID) was voted down, 58% to 42%. (Within Pine Brook Hills, however, the vote was 62% to 38% in favor of the LID).
  • In 2011 a PBH-specific LID was voted down, 83% to 17%.
  • In 2013 a county-wide public improvement district (PID) was voted down, 57% to 43%.

After the failure of the 2013 PID, the County enacted a LID to do what voters had rejected–increase subdivision residents’ property tax bills by a total of $58 million over 15 years to reconstruct subdivision roads. In response, an opposition group of subdivision property owners formed, calling itself Boulder County Fairness in Road Maintenance (BoCo FIRM). This group has mounted two lawsuits against the County with the goals of overturning the LID and compelling the County to repair our roads using existing funds.

BoCo FIRM’s first lawsuit asserted that Boulder County did not have the authority to impose a LID to fund road repairs. In his July ruling, Judge J. Robert Lowenbach stated:

“It is clear that the County faced difficult financial issues that caused the neglect of its dedicated subdivision roads. Roads that are not chip sealed and resurfaced will deteriorate. If deterioration is severe enough, the road will have to be reconstructed. These maintenance activities are necessary to the upkeep of the roads and to keep them operative, and are included in the term ‘maintenance’. Property owners whose roads were accepted for maintenance understood that term to include all activities necessary for upkeep of roads. While it clearly had the duty to maintain those roads, the County did not perform that duty.”

Because the LID funding structure can only be used for improvements and not for maintenance, Lowenbach found in favor of BoCo FIRM. “The Boulder County Board of County Commissioners exceeded its jurisdiction and abused its discretion in authorizing and forming the Subdivision Paving Local Improvement District.” As a result, the County refunded your 2014 LID payment to you with interest.

Although Lowenbach was asked only to rule on whether the County had the authority to impose a LID for road maintenance, he went further in his ruling, citing Colorado state statutes that obligate the County to maintain its roads. He stated, “Title 43 of the Colorado Revised Statutes establishes that construction and maintenance of county roads is a county responsibility, and provides funding for that responsibility.” Citing specific sections of Title 43, he went on to clarify that while roads can be classified as primary or secondary, the counties are responsible for the upkeep of all roads. The state statutes provide no basis for the County’s attempt to redefine subdivision roads as a separate class of roads, with a lower level of maintenance.

Despite this finding that the County not only acted illegally in imposing the LID but has also been guilty of neglect of our roads for nearly two decades, the County maintained its position. In an August Daily Camera editorial, the commissioners stated, “While we respect the judgment of the court, we are disappointed with the ruling, as it removes an important tool from the tool kit to fund the repaving of subdivision roads and is a setback in implementing a fair, shared solution to the needed reconstruction of these roads.” The County was able to secure FEMA funds last summer to repair specific areas – for example, Linden between North Cedar Brook and the fire house. However, the commissioners maintain that the funds needed to fully repair our roads do not exist, so their priority must be to “focus available funding on those roads that serve the most people and connect communities.”

As a result, BoCo FIRM filed a second lawsuit with the goal of obtaining a specific court order to force the County to repair subdivision roads, using existing funds. This lawsuit alleged that Boulder County has a contractual obligation to maintain our roads, and that the County breached those contracts. Boulder County filed a motion to dismiss this lawsuit, and in his December 30 ruling, Judge Dave Williams granted this motion, handing a defeat to BoCo FIRM. Consistent with the July ruling overturning the LID, Judge Williams found that:

  • “The County is statutorily obligated to maintain the subdivision streets and roads.”
  • “Proper maintenance of subdivision streets and roads requires periodic resurfacing, chip and seal, and overlay work. The County performed such maintenance until the mid-1990’s, at which time it stopped doing so. Subdivision streets and roads consequently deteriorated.”

However, on the specific legal issue of whether a contract exists to maintain our roads, Judge Williams sided with the County. “No consideration can exist for an alleged contract between the County and the Plaintiffs, because the County would thereby become obligated to perform something that it is already bound to do.” In essence, specifically because the County’s neglect of subdivision roads violates Colorado state statutes, this neglect cannot also be a violation of contract law. Therefore, Judge Williams granted Boulder County’s motion to dismiss BoCo FIRM’s claims regarding breach of contract.

Although he rejected the breach of contract claim, Judge Williams invited BoCo FIRM to amend its lawsuit to pursue road repairs under a different legal theory. One such theory, Williams stated, would be that “the County acted unreasonably or arbitrarily in light of all the circumstances.” He went on to caution, though, “the burden of proving such unreasonableness and arbitrariness appears to the Court to be more difficult to meet than the burden of proving a failure to perform a contractual duty.” Such a lawsuit would be “complex” and “time and resource consuming.” BoCo FIRM does plan to file an amended suit in February 2015.

So here we are, with our roads continuing to deteriorate after two decades of neglect. Over the past six years, many subdivision property owners, your Pine Brook Hills Roads Committee, the County transportation department, County commissioners, and many others, have put in countless hours of hard work trying to find a way to fund road repairs as repair costs rise and safety deteriorates. Stay tuned for the results of BoCo FIRM’s amended lawsuit. If you’d like to learn more, you can find additional resources on this critical issue at http://www.pinebrookhills.org/Roads

This article is reprinted from the Winter 2015 Pine Brook Press.