Roads History and Facts

Thanks for coming to this page to learn more about the roads issue in preparation to respond to our roads survey. First, we want to run through some of the central facts that are not in dispute. In the interest of making this section as incontrovertible as possible, we will quote from Colorado Revised Statutes and court rulings where practical:

  • History
    • “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.” (Boulder County District Judge J. Robert Lowenbach, in his July 2014 ruling – more on that later.)
    • “Prior to the mid-nineties, Boulder County included resurfacing and chip sealing of subdivision roads in its maintenance responsibilities.” (Lowenbach ruling) Since then, the County has performed limited maintenance only (snow removal, pothole filling, etc.) on subdivision roads. “Subdivision roads deteriorated over time… Pothole filling and patching and snow plowing became more difficult and expensive and public safety became a concern due to increases in potholes, deteriorating drainage, and inability to clear snow.” (Lowenbach ruling)
    • The County took the position that repairing subdivision roads will require subdivision residents to pay special assessments in addition to their current taxes.
    • In 2011 a local improvement district (LID) was placed on the ballot that would have rebuilt all Pine Brook Hills roads during 2012, at a cost of approximately $11,000 per Pine Brook household ($550 per year for 20 years). The Pine Brook HOA argued that a county-wide solution was needed and would be more cost-effective, and recommended that residents vote against the LID. The ballot measure failed by an 83% to 17% vote.
    • In 2013 the County placed a public improvement district (PID) on the ballot for all unincorporated subdivision residents.
      • This PID would have repaired all subdivision roads over 15 years at a cost of around $10,000 per Pine Brook household. To fund the PID for these and future repairs, taxes would have been raised by $700 annually per Pine Brook household.
      • Prior to the vote, the County informed voters that if the PID failed, then the County commissioners would impose a LID on subdivision residents with substantially the same tax impact.
      • County-wide, voters rejected the PID measure 57% to 43%. Within Pine Brook, the vote was 55% in favor of the measure.
    • The County proceeded with creating the LID and placed liens for the full amount, averaging approximately $10,000 per Pine Brook household, on the titles of all affected properties.
    • An opposition organization, Boulder County Fairness in Road Maintenance (BoCo FIRM), challenged Boulder County’s authority to impose a LID on property owners for the purpose of repairing public roads.
      • In his ruling, Boulder County District Court Judge J. Robert Lowenbach cited Colorado Revised Statute 30-20-603(1)(a), which authorizes improvement districts as follows: “A district may be formed … for the purpose of constructing, installing, acquiring, or funding, in whole or in part, any public improvement…” (emphasis added by Lowenbach). The issue, then, was whether repairing public roads is an allowed use of an improvement district.
      • Citing a 1997 Colorado Supreme Court ruling and the Merriam Webster Dictionary definition of “maintenance,” Lowenbach ruled that road repairs are “maintenance” and not “improvements”. From Lowenbach’s ruling:
        Whether described as “maintenance” or “rehabilitation”, the activities the County intends to conduct using the LID funding mechanism are not “improvements” as envisioned by the statute. 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.
      • Therefore, Lowenbach wrote, “The Boulder County Board of County Commissioners exceeded its jurisdiction and abused its discretion in authorizing and forming the Subdivision Paving Local Improvement District and imposing assessments on properties within the District, for the purpose of rehabilitating public paved roads.” The LID was overturned, liens were removed, and payments were refunded.
    • BoCo FIRM continues to challenge the County in court, with the goal of forcing the County to repair subdivision roads.
      • The County has prevailed in two legal rulings.
      • In the first, BoCo FIRM alleged breach of contract because County officials signed documents accepting subdivision roads for maintenance. Boulder County District Court Judge Dave Williams dismissed the case, ruling that a contract cannot exist "because the County would thereby become obligated to perform something that it is already bound to do." Essentially, because Colorado state law already requires the County to maintain its roads, a separate contract for the same purpose can't exist.
      • Judge Williams dismissed BoCo FIRM's next suit because "no statute or case law sets any standard that must be met by the County in maintaining the roads and streets, nor does any statute or case law require that roads and streets be funded to the satisfaction of any particular organization or group." (Williams' April ruling)
      • BoCo FIRM is preparing to appeal these rulings.
  • Road financing
    • The vast majority of the funding for County subdivision road maintenance comes from two sources: the specific ownership tax (vehicle registration fee) and the Highway Users Tax Fund (HUTF, the gas tax). The state allocates the HUTF to counties and municipalities based on miles of road under maintenance. The County claims subdivision roads in its mileage count.
    • Property tax is not a significant source of road funding. (Property tax currently represents 6% of County road and bridge fund revenue.)
    • The amount currently allocated by the County in their budget is insufficient to repair subdivision roads. Either increasing revenue and/or changing the manner in which current funds are allocated to County programs is required.
  • Pine Brook HOA
    • Since the failure of the Pine Brook LID in 2011, the HOA has not expressed a position on this issue.
    • Pine Brook volunteers have devoted countless hours over the years to getting our roads repaired and continue to do so. However, no HOA funds have been used.

Position Statements

Now we’ll outline two positions on how to fix roads.

The County commissioners have stated that to fix Pine Brook’s roads, residents should expect to pay additional taxes (around $10,000 per household, or $700 per year for 15 years), for the following reasons:

  • Shifting funds within the existing County budget to repair the roads would, according to the County commissioners, “require a cut of about $10 million per year from other important programs funded by everyone's property taxes.”
  • The commissioners state, “Asking all county taxpayers to pay more — or receive less — so that local subdivision roads can be rehabilitated without a meaningful share being paid by those who directly benefit does not seem fair.”
  • Consequently, subdivision residents should pay 80% of the cost of road repairs through additional levies over and above existing taxes, with the County contributing 20% out of general County funds.

An alternate viewpoint is that Pine Brook roads are public property and should be maintained using public funds, for the following reasons:

  • Colorado statute requires counties to properly maintain all public roads in their jurisdiction. Maintenance includes all work necessary to keep an improvement “in the same general state of being, repair, or efficiency as initially constructed” (Swieckowski by Swieckowski v. City of Ft. Collins, a 1997 Colorado Supreme Court ruling).
  • The gas tax is one of the two major sources of Boulder County road funding. It is collected by the state and allocated to counties for road maintenance, based on mileage of roads. For years the County has been collecting funds for nearly 150 miles of subdivision roads but deferring significant maintenance on those roads.
  • The annual County budget is $439,000,000. 1% to 2% of that budget is what’s needed to fix the roads. Funds could be reallocated from other County programs to address roads.
  • Unincorporated County residents have a limited voice in County politics, given that 90% of the voters who elect the commissioners come from the cities. Even though we have limited political power, we at least need to hold our elected officials accountable to state law. Allowing violation of state law by elected officials on this issue would set a dangerous precedent for the future.

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