Put Up or Shut Up

Want to fight a real estate development in Colorado? Be ready to pay to play.

For years, Ann Bonnell has been a volunteer at the Denver Botanic Gardens' Chatfield Arboretum. The former farm next to the Chatfield Reservoir has been operated as a nature preserve since the 1970s, and volunteers have planted thousands of trees and bushes on the property that parallels Deer Creek.

Bonnell loves birds, and the arboretum has become a choice spot for bird-watchers. A group known as the Tuesday Birders meets regularly to look for red-winged blackbirds, mountain bluebirds, Swainson's hawks and great blue herons, all of which regularly visit the arboretum. Like Bonnell, many of the bird-watchers are retirees who relish seeing wildlife on the edge of the metro area.

However, this is one slice of the Front Range that may not be rural much longer. Shea Homes, the huge California homebuilder that last year bought Highlands Ranch, is planning an 800-home development known as Chatfield Green on the bluff that overlooks the arboretum on its southern boundary. Already, a bright-yellow backhoe is digging up the hillside, installing a pipeline intended to carry runoff from the project down the hill and around the arboretum.

The South Platte chapter of the Sierra Club and the Denver Audubon Society (Bonnell is a member of both groups) are challenging the proposed development in court, arguing that the City of Littleton annexed the property illegally and overlooked major environmental problems with the site. Last July the group's volunteer attorney, Alison Maynard, even won an injunction against development of the property in the Colorado Court of Appeals. The appeals court ruled that Littleton and Shea would have to delay work on the project until the case goes to trial in Jefferson County District Court next month.

But there was one catch in the court's ruling--and in the eyes of citizen activists, that ruling has since grown into a legal roadblock that could severely limit the ability of average Coloradans to fight developers in court. After granting the injunction--an apparent victory for Maynard and Bonnell's group--the Court of Appeals made the measure contingent on the filing of a bond. The court sent the case back to Jefferson County District Court Judge Frank Plaut, who then set the bond amount at a whopping $250,000. What that meant is that if the activists wanted to see the injunction put in place, they'd have to put themselves on the line for a quarter of a million dollars--money they could lose if the developer won the case.

Maynard immediately appealed that ruling to the Colorado Supreme Court, but after agreeing to hear the case, the high court in February issued a one-sentence ruling upholding the bond amount. Bonnell and the others didn't have the money for the bond and didn't want to risk losing their homes if they lost their case and had to forfeit the money to the developer (under the law, Shea could ask a judge to compensate it for construction delays).

"I called the bondsman over in Littleton, and he said it would cost $4,000 cash and you had to have collateral for the rest," says Bonnell. "If you lost, you'd have to pay the developer $250,000. The courts are fickle; you can't predict how it will come out. There was no way we were going to stick our necks out on this."

Because they were unable to post the bond, Bonnell and her friends lost the injunction they had won in court, leaving Shea Homes free to begin construction. Their district-court case will go forward in the meantime, but by the time it's heard, much of the land Bonnell's group wants to preserve may already have been torn up. More damaging in the long run, says Maynard, is the precedent that apparently was established when the Supreme Court refused to overturn Judge Plaut's ruling. The high court's action, says the attorney, means that any citizens' group in Colorado that challenges a development in the future could also be asked to post a huge bond in order to sustain an injunction. And that, say many attorneys and civil-rights advocates, means that only those with substantial amounts of cash will be able to challenge powerful development interests in court.

"It's outrageous," says Mark Hughes, a University of Denver law professor who has been involved in dozens of environmental lawsuits. "It has the potential to deny public-interest groups of every stripe access to the courts."

Hughes says the requirement that parties who challenge development projects must post a bond is a longstanding legal practice that was put in place to prevent frivolous lawsuits. The bonding requirement, for instance, serves to dissuade developers from going to court solely to interfere with each other's projects. But he says federal courts have established a clear precedent that public-interest groups that don't stand to make any money off delaying a project should only have to pay minimal amounts--often as little as $1,000--to have an injunction enforced.

"It's pretty well established in federal law that the bond requirement should be minimal for this type of action," says Hughes. "I've been practicing law here since 1988 and have never seen a bond set anywhere close to this."

However, DU law professor Federico Cheever says more and more environmental cases are being heard in state court as grassroots groups challenge developments just down the street. But if it becomes common in Colorado to require posting such a huge bond, he predicts people of modest means will be afraid to go to court.

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