Judge drops hammer on contractor’s lawsuit

GCCA deciding on appeal

Gunnison District Judge J. Steven Patrick found some fatal flaws in the foundation of a lawsuit filed by the Gunnison County Contractor’s Association (GCCA) against the Gunnison Board of County Commissioners and the Housing Authority. The GCCA’s suit was aimed at ending the “workforce housing fee” that is earmarked for affordable housing in Gunnison County.

The county had asked for a summary judgment in the suit, which allows the arguments to be made without going to trial. Judge Patrick announced the ruling in favor of the county’s position on Tuesday, March 10, after reviewing arguments from the county and the plaintiffs for several months.
“The motion of summary judgment is a request that says, ‘The law is in our favor and when the suit is looked at in a light most favorable to the contractors’ point of view, it does not allow them to win.’ That motion was granted in its totality,” said county attorney David Baumgarten.
GCCA president Joe Puchek says, “We’re extremely disappointed that Judge Patrick wouldn’t allow the suit to go to trial. We did a lot of research and we had legal opinions from the [national and state associations of homebuilders]. We wouldn’t have pursued it and spent money if we didn’t feel that there were substantial grounds to the lawsuit.”
Puchek said he wasn’t sure if the plaintiffs would appeal, saying, “It’s up to our attorney to determine what the situation is.”
One of the cornerstones of the GCCA’s suit, filed June 12 of last year, was the claim that the workforce housing fee was in fact a tax, levied by the county without the approval of the voters, and therefore illegal under the state’s TABOR amendment.
The 2006 county 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 plaintiffs in the suit included GCCA; Crested Butte-based Alpine Construction; Nicholas and Sara Mirolli of Almont; and “all similarly situated residents, businesses and property owners in Gunnison County.”
Commissioner Jim Starr says, “We’re very thankful and happy that the ruling came down the way it did. We feel like we’ve been vindicated. We did a lot of fact gathering and took public input for a couple of years. We were all very surprised that the suit was filed.”
In a 15-page order, Judge Patrick concluded that the fee is not a tax and that the plaintiffs “have failed to raise any genuine issue of fact and that their claims may be decided as a matter of law.”
He also acknowledged that the fee was properly enacted through the state’s impact fee statute.  
County attorney David Baumgarten says one of the prouder moments that he has had practicing law for Gunnison County is when the commissioners responded to the suit with a simple but affirmative statement saying: “We believe that we have responded appropriately to our greater communities’ housing needs through an impact fee…
“If the court finds that our impact fee is appropriate, it is our intent to continue our program. If the court points out a flaw in our fee, we will fix it and move forward to respond to our community’s workforce housing needs, which are critical to our economic development.”  
The only part of the summary judgment that did not go in the county’s favor was the court’s denial of the request to recoup attorney’s fees paid during the defense, since outside counsel was hired for the case. The court said it could not order the plaintiffs to pay because their claims were based on a “plausible” interpretation of the law.
The GCCA will be able to appeal the decision, but has not yet made a decision on whether to do so.