Could a battle over 12 acres of vacant land deep in Denver’s suburbs serve as the setting for a new — and, some say, overly aggressive — approach to annexation, one likely driven by the metro area’s mushrooming growth and ever-shrinking supply of available land?
Scott Eden thinks so. The CEO of Mountain Waste & Recycling had planned to locate a trash transfer and recycling facility on Parker’s border but was stymied last month by the fast-growing town, which voted to annex the land that cost him $2.5 million in 2016 and then rezone it so as to kill his project.
“Here you have a town going outside its jurisdiction and taking away a rightful use that was established 20 years ago,” said Eden, who still owns the land. “It’s a taking of my land-use rights.”
According to local land-use experts, the town’s decision was a pre-emptive strike to keep nearby residents and businesses from having the sights, sounds and smells of a waste and recycling facility next door. And as rare as such moves are along the Front Range, those experts suggest that the region’s ever-growing population could make the tactic more common.
“It’s the bleeding edge of the urban/agricultural interface out there,” Boulder land use attorney Ed Byrne said of the annexed site, at the corner of South Chambers Road and Grasslands Drive. “I think the Front Range is reaching the point where it’s hand-to-hand and parcel-by-parcel combat.”
Byrne is one of two seasoned land use attorneys not involved in the Parker case who told The Denver Post that an annexation with the express purpose of blocking a project is highly unusual, if not unheard of in Colorado. The other, Jack Reutzel, an attorney with Fairfield and Woods in Denver, called Parker’s move “an aggressive move, for sure.”
“Annexation is intended to allow a city and a landowner to have a meeting of the minds to encourage growth,” Reutzel said. “Annexation is rarely used to kill a development.”
And with Mountain Waste threatening to challenge Parker’s decision in court, Byrne said, he wouldn’t be surprised to see the dispute reach the Colorado Supreme Court.
Town that annexed land is on a growth spurt
There is perhaps no better example of a community undergoing the kind of rapid growth that has defined the metro area recently than Parker, which has exploded from just over 5,000 residents in 1990 to more than 50,000 today. Homebuilder signs compete with each other on multiple street corners, as new houses continue to go up on once untrammeled prairie southeast of Denver. Commercial and retail development has also been on a tear in Parker.
And all that growth has meant that an industrial use like a trash transfer facility, which once would have been isolated and bothering no one, is now more likely than not to be in the shadow of neighborhoods, businesses and stores. That means today’s property rights considerations are multi-faceted, said John Fussa, Parker’s community development director.
In the case of the Mountain Waste proposal, four adjacent landowners requested annexation into Parker. Under Colorado’s annexation statutes, a contiguous and unwilling property holder can be made part of an annexation application so long as the majority of landowners with the most acreage in the parcel to be annexed choose to go that route.
“They have asserted that they are protecting their private property rights in submitting the annexation petition to Parker,” Fussa said of the four parties seeking annexation. “They want to be protected from an incompatible use.”
That incompatibility comes in the form of odors, noise and the constant truck traffic an operation like Mountain Waste would generate, according to dozens of residents and business owners who testified before the town council last month.
“It smells,” Mark Lestikow, owner of a 64,800-square-foot building across Grasslands Drive from the Mountain Waste site, told the Parker Town Council. “If you annex, it will protect our business, our building and our tenants.”
Charter Communications’ chief technology officer Jay Rowles told the council a trash operation near his company’s building would attract pests and could pose a threat of fire, like one that burned at a Waste Management facility in Commerce City last June. He said such an operation would make it more difficult for Charter to recruit tech workers, who place high value on quality of life at the workplace.
“A trash facility is not going to be high on the amenities list of what my engineers will be looking for,” he said.
Concerns were also voiced about birds, attracted to garbage, endangering planes landing and taking off from nearby Centennial Airport.
Before the vote, town council members cited an intergovernmental agreement Parker had signed with Douglas County in 2002 that they said prohibited a use like a
trash transfer facility from locating at that site. The town sued the county last year to stop it from processing Mountain Waste’s development application.
Site’s owner: Parker’s “actions speak louder than words”
Mayor Mike Waid expressed sympathy for Mountain Waste at the April 16 hearing but said annexation was necessary to ensure that the town was blunting the negative effects of growth as best it could.
“You will probably not find a council that is more supportive of private property rights than this council that’s sitting up here right now,” he said.
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The mayor declined to comment for this story, citing the prospect of litigation on the issue. Mountain Waste’s Eden scoffed at the mayor’s assertion that Parker values property rights.
“I think actions speak louder than words,” he said. “I bought that property specifically because it had that (industrial) use.”
Eden said he worries that Parker’s action will be copied by other municipalities intent on micromanaging growth at their borders — even if that means trampling on the property rights of those who thought they were playing by the rules.
“We see ourselves as the last line of defense between local government and other property owners who could lose their land in a similar fashion,” Eden said. “Is it just Parker that is going to do this? I don’t know.”
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