Court of Appeals sides with Landmark HOA | The Villager News Online
Ruling says district’s taxes were levied illegally
BY TOM BARRY
In a unanimous decision, three judges on the Colorado Court of Appeals have sided with the Landmark Homeowners Association over UMB Bank, N.A., Colorado Bondshares and Marin Metropolitan District.
Judges Jerry Jones, John Webb and Laurie Booras issued their opinion April 21, about five weeks after oral arguments were presented.
It is considered likely that the defendants will appeal to the same court or ask that the case go before the state Supreme Court. Neil Arney, an attorney with Kutak Rock representing the defendants, has challenged each case finding since the civil-suit process began. He did not return repeated requests for comment.
The court ruling was based largely on the Taxpayers’ Bill of Rights in the Colorado Constitution.
“In sum, because the TABOR election was conducted illegally with the participation of ineligible voters and without constitutionally required notice to eligible voters, the District’s taxes to pay the bonds were levied illegally,” said the 35-page detailed opinion issued by the Court of Appeals on April 21. “Pursuant to TABOR’s refund provision, the District must refund all illegal taxes paid with 10 percent annual simple interest. … The Landmark buyers are also entitled to an order enjoining the District from levying any further taxes without proper voter approval.”
Marin Metropolitan District had been set up by the Landmark developer Zack Davidson to fund infrastructure improvements at an adjacent vacant parcel of land. This land was to be developed into brownstone homes in what was commonly referred to as the European Village. Davidson committed suicide shortly after being indicted by an 18th Judicial District grand jury for pilfering more than $3 million.
Marin District began collecting property taxes from new Landmark homeowners in 2009 at the luxury condominiums in Greenwood Village located just southwest of I-25 and Belleview Avenue. To date, the special district has collected around $5 million from residents who received no benefits from the taxation.
Unless an appeal is successful, all homeowners would be repaid taxes amounting to around $5,000 per year. Each could receive between $20,000 and $25,000 with interest once all the defendants’ legal options have been exhausted.
“Sham contracts are the classic contracts that aren’t worth the paper they are printed on,” said Brain Matise, an attorney with Burg Simpson representing the HOA.
Davidson and his associates had together owned a small 100-square-foot piece of undeveloped land called the “director’s parcels” within the European Village. Ownership enabled them to vote on elections and issues relating to Marin. The Marin directors were told that they would never have to pay any taxes associated with their parcel.
“Thus, we conclude that those under contract to purchase units in the Landmark Towers were eligible electors in the TABOR election,” the court’s opinion said.
The director’s contracts were never recorded in the real property records.
“Thus, the organizers illegally participated in the District’s TABOR election and their votes are void. It follows that the TABOR election itself was invalid,” the opinion said.
The court found that the only eligible electors were the Landmark owners, not the directors selected by Davidson. Additionally, the condo owners were never provided any notice of elections or meetings relating to Marin.
The Court of Appeals held that the Landmark homeowners were the rightful voters to approve the tax, not the directors, per TABOR.
“Bondshares and UMB worked extensively with the District to present a united position against Landmark,” the court’s analysis said. “As the district court noted, they have as much interest in defeating Landmark’s claims as does the District. (Indeed, they have more of an interest in defeating Landmark’s claims given that they stand to lose millions of dollars if Landmark prevails and the District cannot repay the bond debt.)”
The two financial powerhouses teamed up to battle the owners of the Landmark condominiums and attorney fees for both sides have likely surpassed the $1 million mark.
To date, the legal expenses for the HOA have amounted to approximately $500,000, according to Matise.
“They did not receive any relief on their grounds for appeal,” he said of UMB Bank, BondShares and Marin District.