On June 7, 2022, the Nederland Board of Trustees (BOT) discussed the possibility of the Town of Nederland adopting its own Annexation Ordinance. As it was then, and still is now, any issue of annexation in Nederland falls under review of the Town’s Intergovernmental Agreement (IGA) with Boulder County, which is set to expire on December 31, 2022.

Annexation is the process by which municipalities incorporate new territory from outside of their boundaries, typically at the request of the landowner. The power of annexation is provided to municipalities by the Colorado Constitution (Poundstone I, Article II Section 30) and Colorado Revised Statutes (31-12-101 et seq.) by the Municipal Annexation Act of 1965.

The power of annexation is granted so that municipalities can plan developments that best benefit the community through processes such as a landowner petition or an annexation election.

The BOT reviewed annexation ordinances from Berthoud, Estes Park, Lyons, and Pagosa Springs at the June 7 meeting and discussed the level of detail required for the task of Nederland adopting their own ordinance. Trustees ultimately decided that each step of creating an annexation ordinance needs to be discussed and considered closely and carefully before working with Nederland’s various Boards and Commissions for further input.

Trustees were meant to continue their discussion on creating the ordinance during a scheduled work session in late July. However, that work session later became dedicated to finding possible revenue sources for the Nederland Police Department.

The issue of Nederland adopting an annexation ordinance was pushed off the BOT’s agenda until August 16, when Trustee Eric Coombs-Esmail readdressed the issue during the Other Business portion of that meeting’s agenda. Across meetings in September and October, the BOT have discussed annexation with urgency, with Coombs-Esmail stating a desire to have an ordinance written before the expiration of the IGA with Boulder County at the end of the year.

On September 13, Coombs-Esmail and Town Attorney Jennifer Madsen presented to the BOT a draft annexation ordinance which detailed the application process as well as the review criteria to be considered. The draft addressed previously raised concerns about what prerequisites an applicant should expect to meet for an “impact report” before their application will be considered, as well as concerns of specifying what annexation conditions would trigger a municipal election.

However, during further discussion on October 4, Trustee Tania Corvalan became increasingly concerned about the pace by which the ordinance was being templated, believing that the BOT was getting disturbingly close to allowing themselves and future Boards carte blanche over approval of annexation applications.

Corvalan believes that the public should be considered in matters of annexation, and that there should be factors involved in an annexation application that should require a public election. On October 4, Corvalan urged Town staff to create and release an annexation survey to the public, which fellow Trustees approved.

The BOT heard many comments from the public at their October 4 meeting, with the majority of the comments urging Trustees to take more time in considering all the complex aspects and angles of the annexation conversation. The BOT directed Town staff to continue drafting an annexation ordinance along with sample annexation applications under said ordinance, and desired to have the matter returned to the BOT agenda as an Action Item in November.

Why the race for Nederland to create an annexation ordinance against the Town’s expiring IGA with Boulder County? So far there’s only one capital project in Nederland that’s awaiting the annexation application process in order to move forward: the proposed construction of an affordable housing community on 17 acres of property on the south side of Colorado Road 130, known as the Bobcat Ridge Project.

The project, headed by longtime Nederland resident Kayla Evans, owner of Arapaho Ranch and operator of the Backdoor Theater, has been in limbo for nearly a decade due to restrictive language in the Town’s IGA with Boulder County. A parcel of Bobcat Ridge needs to be annexed to the Town of Nederland in order for development to begin, and the current IGA has prevented the application for annexation from moving forward.

Evans has now spoken formally about the Bobcat Ridge Project at all Boards and Commissions. At an April NDDA meeting Evans detailed the proposal for the construction of two two-story apartment buildings which would house a daycare facility and over 70 affordable rental properties as well as homeownership opportunities.

The NDDA was in full support of the project at that April 13 meeting. However, they understood that moving forward on the project required either renegotiated terms on a new IGA with Boulder County or for Nederland to create its own annexation ordinance. Evans was hopeful then that Nederland would eventually obtain the power of annexation over Boulder County properties.

Evans spoke again about the Bobcat Ridge Project during the Public Comment portion of the agenda during the BOT meeting on October 4, as the project was being referred to in other public comment as “the elephant in the room” in relation to the BOT’s discussion on creating an annexation ordinance.

Concerns were raised about the potential of public opposition to change resulting in public hearings going negatively for annexation applications that are viewed as capital improvement projects for the benefit of the community. Corvalan believes that public hearings going negatively for an applicant is a preferred risk compared to the prospect of Nederland’s Boards and Commissions being given supreme power over residents in decisions that widely affect Town zoning issues.

On October 9, Corvalan posted to Nederland’s Facebook group NedHeads, not as a Trustee but as a 27-year resident. Corvalan wished to draw attention to the BOT’s discussion on creating an annexation ordinance and urged residents to be attentive to the complex conversation and to get involved by attending local government meetings and by filling out the public survey concerning annexation. [Editor’s note: the survey is now closed].

“This month we will be discussing the Town of Nederland’s annexation policy. Some of the most contentious discussion revolved on when or if any annexation should first be voted upon by Nederland residents. I had said larger than 5 acres and/or a higher density than adjacent town land use,” Corvalan explained in her post.

“Then the density clause I was pushing for began to be picked apart; that maybe it’s not necessary to have an election to decide if a high density development should be annexed into the town of Nederland. That maybe no election is necessary at all and all power falls upon the BOT, Town staff and other Boards.”

“I argue that it’s very dangerous to give so much power to the BOT, Town administration, Planning Commission, etc,” Corvalan continued. “The sentiment for many was in favor of no election because of the fear that a ‘high value’ development project that is ‘beneficial’ to town might not win an election. I personally think it’s worth taking this chance to prevent a weak annexation policy that would allow less beneficial developments the ease of getting pushed through by a future BOT that may have a personal agenda.”

“I would rather have a checks and balances system and not give all power to the BOT in regards to large or dense developments,” Corvalan concluded. “Do you want more high density projects annexed into town? Should residents vote on high density/large developments requesting to be annexed or should it be at the discretion of Town Boards/staff?”

On Tuesday, November 15, the BOT discussed the results of the official survey concerning the conditions in which an annexation petition should go to election. An official statement from the Town of Nederland, posted on October 11, reads that the “survey results will help us to determine whether residents are interested in elections for annexations, and under what circumstances such elections should be held.”

The survey asked a single question: If the BOT finds that an annexation petition satisfies a community interest, under what circumstances should the Board refer an annexation petition to a Town-wide election?

Out of 97 responses, 6.2% answered that an annexation petition should go to election when the property to be annexed is greater than ten acres.

14.4% answered that an annexation petition should go to election when the property to be annexed is greater than five acres.

16.5% supported an election when the proposed zoning for any parcel to be annexed would be of a different zoning class than any of the adjacent parcels currently within town boundaries, regardless of the size of the property to be annexed.

40.2% answered that the BOT should not refer any annexation petitions to a town-wide election.

In the “additional comments” portion of the survey approximately 30% of the 97 survey-takers wrote a comment. The majority of those comments were in favor of all annexation petitions being referred to a town-wide election.

“ANY annexation needs to require Town-wide election with the election costs paid by the applicant. Shameful that the BOT did not include that as a survey choice. Because that choice is not included it invalidates this survey,” one comment read.

“All annexations should be directed to a town-wide vote. The town already struggles to provide basics to those IN town and annexations will further stress limited town resources without significant taxation/funding increases,” wrote another commenter.

“Annexation is a pyrrhic move. While it seems attractive in terms of taxation it incurs greater costs in terms of maintenance and emergency services. We already can’t deliver either of those properly to the existing town area,” another comment read.

There were also public comments from the survey that noted that public engagement on the issue of annexation would be a hindrance to the BOT in their effort to make the best decisions for the growth of the town.

“The process is so technical that the electorate normally gets it wrong,” one comment simply stated.

“It is the job of the Board to be informed on the pros and cons of proposals before them and make informed decisions on behalf of the Town residents. The average voter is not adequately informed on any issue and an election on such proposals risks passing or defeat on misinformation. The Board should consider each proposal on its own merit and potential benefit to the Town and not limit future options by an overly restrictive ordinance,” one commenter wrote.

Another commenter vented their frustration at the perceived futility of being asked to participate in the survey in the first place. “I’m not sure why the BOT is asking for the town’s input when they brazenly dismiss the input from the people of the town,” they wrote.

On Tuesday, November 15, the BOT, during their continued discussion on the draft annexation ordinance, failed to reach an agreement on the matter of what conditions in an annexation petition, if any, should trigger a public election. Those Trustees in opposition to public elections felt that adding such language to the annexation ordinance was unnecessary considering the public always has the legal right to petition their local government.

“If there is strong sentiment among the electorate to have an election they can relatively easily demand a referendum election,” Trustee Jesse Seavers said during the discussion at the November 15 meeting. “I would like to see us trending towards more transparency and participation moving forward.”

“There’s one annexation that’s in the foreground of my mind; that’s Kayla Evans’ property. It’s very closely related and tied to our water rights…and we have an expiration date on that. There’s a ton of advantages to that and I don’t want to leave that in the hands of the electorate,” Seavers said.

“After we get this hypothetical deal done for our water rights I don’t really care how restrictive the annexation policy is. I want to retain as much agility as possible to strike a deal,” Seavers continued before stating that he wished to continue with matters he felt were more pertinent, such as the 2023 town budget.

Seavers desired to direct Town staff to cease any more work on an annexation ordinance, to let the IGA with Boulder County expire, and to bring the issue of drafting an annexation ordinance back to the BOT Agenda in 2023.

“The reason for adding a trigger for an election, in this particular context, would be in order for the town to get on board with a large-scale project,” Coombs- Esmail said during the discussion on November 15. “It’s so that the petitioner puts together a solid application.”

“The idea that we put it back on the people to tell us if they don’t like it I find to be a bit not in the spirit of the democratic process. It seems a little antagonistic,” Coombs-Esmail said, regarding the concept of relying on referendum elections as opposed to having a specified election trigger written in the policy.

“This is about an annexation ordinance; this is not about Bobcat Ridge; we’re not going to hold everything up on one project,” Mayor Billy Giblin said at the November 15 meeting, before explaining that an annexation ordinance is a prerequisite towards securing water rights for the town.

“Bobcat Ridge is its own thing; when it comes to us it comes to us,” Mayor Giblin reiterated.

On November 15 the BOT, after spending over an hour on the discussion, voted 4 - 3 to omit any language from the Town’s draft annexation ordinance that refers to the triggering criteria for a public election.

The issue of Nederland’s annexation ordinance will continue as an Action Item on the agenda for the December 6 BOT meeting. For the official survey results and comments please refer to item 5.1 on the BOT Agenda for Tuesday, November 15, 2022: https://nederlandco.civicweb.net/Portal/MeetingInformation.aspx?Id=476