Former director plans suit against Highlands Ranch Metro District

Cullen calls fence replacement program ‘unconstitutional’

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The Highlands Ranch Metro District is preparing for a pending lawsuit from one of its former board members.

Former director Philip Cullen, who resigned in February 2012 amid numerous disagreements with other board members, is preparing to sue. He believes the way in which the Metro District "taxes" Highlands Ranch residents for its arterial fence replacement program is "unconstitutional."

The Metro District owns 42 miles of arterial fence line, which backs up to roughly 3,400 homes. The district is currently in year seven of what it anticipates to be at least a 25-year, $17 million program to replace fencing that has reached the end of its cost-effective repair life cycle, according to General Manager Terry Nolan.

Cullen stated in a formal petition, which he presented to the board at its Feb. 20 work study session, that causing everyone to pay for the fence program creates two classes of taxpayers in Highlands Ranch. While acknowledging that the fencing is beneficial to all residents in terms of safety, landscaping and property values, he said it was an indirect benefit to most, but a direct benefit to those who abut the fence line.

“Taxpayers in Highlands Ranch should not provide a subsidy for homeowners for that portion of the fence line that abuts the property lines,” he said. “I am asking those homeowners to pay 50 percent of the costs. This fencing which faces their backyards is a direct benefit, while the other side of the fence is an indirect benefit to all residents of Highlands Ranch.”

Considering that there are 29,840 households in Highlands Ranch -- if one did not take into account property taxes paid by businesses -- the average homeowner would be responsible for just $23 per year toward the program. If Cullen’s suit were to be successful, that total would be narrowed down to $11.50 for those not living next to the fence line, while those who do would pay a higher cost of $213.35.

Splitting the cost, Cullen says, would allow tax dollars to be spent on other entities that would provide a greater benefit to all Highlands Ranch residents.

“This is money that could be spent on fire services, parks and sports programs,” he said. “Fire services, parks and sports programs have a far greater beneficial effect on property values, than a subsidy for fence lines.”

The board met Feb. 26 in executive session with its legal counsel, David Hahn, about the situation, and responded to Cullen via letter Feb. 28 denying his petition.

Board Chairman Rick Owens stated in the letter that the fencing is “a significant factor in maintaining property values in Highlands Ranch (and) is also there to help contain backyard activities from interfering with traffic on the arterials.

“The fencing is on Metro District land and, like the trees, grass and shrubs, is owned and maintained by the District,” he continued. “The Metro District does not have the authority to require adjacent landowners to pay more than they are currently paying in property taxes for fencing on district property.”

Owens added that it would be virtually impossible to get adjacent landowners to voluntarily pay more for maintenance of district fencing, and that Hahn had advised the board that if the district did attempt to force adjacent homeowners to pay more, a judge would likely deem the district’s lawsuit frivolous and throw it out.

Nolan added furthermore, via email, that the fence replacement program, which has been paid for by property taxes in the past, and likely will again in the future, is currently part of a comprehensive repair and replacement program that is inclusive of all district assets and not paid for by taxes.

"The major repair fund, which is used to pay for the fence replacement program, is funded primarily by cell site revenues that the district has collected from cell phone providers for installing equipment in our landscaped areas," he said.