County asks court to dismiss a suit by contractor’s association

Housing fee questioned

Gunnison County has filed a motion to dismiss the lawsuit seeking an end to the “workforce housing fee” that was filed by the Gunnison County Contractor’s Association (GCCA) and others in June.


The county’s motion, filed in District Court on August 14, seeks to dismiss the suit by disqualifying the plaintiffs as being ineligible to file the suit and arguing that the plaintiffs filed too late.
Since opposition was first raised at a public hearing in June 2006, the affordable housing fee has faced nearly constant criticism from the building industry.
“We’d like to see the fee repealed and have the county work on different means to achieve the need for essential housing,” said association president Joe Puchek in an interview earlier this year.
Puchek said this week that the association’s thoughts on the issue remain the same.
The resolution instituting the workforce housing fee required that developers pay a fee that would go toward essential housing needs in the county, based on the type of construction—residential or commercial/industrial—and its size.
The first resolution to address the issue required a payment for residential development of between $586 and $17,252 for development in the county and $1,971 to $58,022 in the Crested Butte area. Commercial and industrial development had a fee of $912 per 1,000 square feet of development in the county and $3,067 per 1,000 square feet in Crested Butte.
The commissioners later adopted a countywide fee that did not differentiate between Crested Butte and the rest of Gunnison County.
One of the cornerstones of the suit, filed June 12, was the claim that the fee was in fact a tax, levied by the county without the approval of the voters, and therefore making it an illegal tax.
According to the motion to dismiss, however, the fee is not a tax, which is meant to offset the costs of government operations. A special fee is associated with a service, like building affordable workforce housing.
If the court were to accept the argument that the fee is in fact a tax, then under the Taxpayer’s Bill of Rights, or TABOR, the plaintiffs would be able to recover the money paid out to the county. That fund continues to grow with each permit that is issued.
But in the Motion to Dismiss, the county makes the claim that only taxpayers are eligible for the benefits of TABOR and the plaintiffs did not identify themselves as taxpayers in the suit and therefore cannot seek protection under the bill.
Puchek doesn’t buy that argument says he, since the GCCA is a registered nonprofit holding tax-exempt status.
“All of their objections are a stretch. Part of their argument was that we don’t pay taxes so we don’t have rights under TABOR. But we don’t have to, [we represent those who do],” he says.
Another issue the motion raises with the suit is the lack of standing on the part of the plaintiffs to make their claims. The motion states that on several occasions, contractors paid the fee when it was imposed on the property owner, and in one case the appeal to recover the fee came too late.
According to the motion, “The complaint does not allege that GCCA ‘owns or has an interest in land’ that is subject to workforce housing fee, or that GCCA paid such a fee to the county.”
The motion also challenges the standing of a company and individuals listed as plaintiffs to sue the county. In one example, Alpine Construction paid the fee in connection to a property that was built near Crested Butte and in response, the county says that the fee was never paid because the property was in Crested Butte.
“The house was near Crested Butte, in Larkspur. I think it was a mistake on their attorney’s part to include that in the motion and for not catching that on a proof read. But that house was in the county and the fee was paid,” says Jamie Watt, owner of Alpine Construction.
The county has hired Boulder-based Sullivan Green Seavy LLC as outside counsel to handle the suit.
In another case, an appeal to recover a fee that was paid to the county came more than one year after the fee was originally paid, far exceeding the 30-day period in which a challenge can be made.
Another reason the county maintains that the GCCA is not a valid plaintiff is because it is not legally an association at all.
“According the Colorado Secretary of State, GCCA is only a trade name for the Home Builders Association of NW Colorado. A Statement of Tradename renewal was not filed for until June 23, 11 days after commencing the lawsuit. Since GCCA is not a legal entity it is not a proper plaintiff,” it says.
Puchek counters, “GCCA is absolutely is a legal entity and has been. It is a 501(c)(3) [nonprofit] in the state of Colorado.”
The original suit makes two major claims: That the county cannot show a connection between building houses and creating a need for affordable housing, which the county used to justify the fee; and that the fee is in fact a tax, levied illegally.
The first claim is not addressed in the motion to dismiss.
“All we have to do is show that one of their arguments is flawed and the suit will go through. We have nothing to worry about,” says Puchek
The plaintiffs in the case plan to file a response to the motion to dismiss on Tuesday, August 26. Once the response is filed, the judge will review the related material and make a ruling on how the suit will proceed.”

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