Commentary and Analysis Regarding Colorado Law

The Colorado River serves over 40 million people across seven states and Mexico, and the basin has been experiencing historic drought conditions since 2000, according to the Department of the Interior.  The Upper Colorado River Commission, formed in 1948 to help the “Upper Basin” states of Colorado, Wyoming, New Mexico, and Utah administer the Colorado River Compact, unanimously agreed Wednesday, December 12, 2018 to enter into three agreements addressing drought contingency planning.  The agreements, in conjunction with a similar set of agreements currently being negotiated between the “Lower Basin” states of California, Nevada, and Arizona, are intended to increase water levels in Lake Powell and Lake Mead.  The Lower Basin states have been given a deadline of January 31, 2019 by the federal government to complete their agreements, or risk federal involvement in the matter. 

The agreements approved by the Upper Basin states address increased collaboration between the states and the Bureau of Reclamation to manage reservoir releases in the basin, increased allowable storage in Lake Powell if such water is available for storage as a result of conservation efforts in the Upper Basin States (Lake Mead is located in the Lower Basin), and increased cooperation between the Upper and Lower Basin states regarding water conservation and increased storage in Lake Mead.

Almost every contract we sign, in business or for our personal lives, has a clause that awards attorneys’ fees to the prevailing party in any lawsuit or arbitration.  This means that if you end up in a dispute - with your cell phone provider, for example - if you win, they pay your attorneys’ fees, but if they win, you pay theirs.  

These contractual provisions are intended to deter people from filing a lawsuit unless they’re absolutely certain that they’ll win.  The idea is that, if you have a chance of paying the other side’s attorneys’ fees, you’ll give serious pause before filing a lawsuit.  

Has the Game of Thrones descended into Boulder County? It seems as if another ancient noble family has taken root here – the Pelotons. You have seen its citizens, haven’t you? It has its own warrior class (like the unsullied) who wear uniforms and helmets out on the road. But here, whom does the Peloton battle for control and supremacy? 

It is typically the Lannisters calculating in their BMW 750is; the Targaryens’ seeking prior glory in their Tesla Model 3s; and the White Walkers hunting the living in a fleet of Ford F-150’s.

Kyna Glover, paralegal at Lyons Gaddis, presented How to Become a Successful Paralegal to the Boulder County Bar Association Paralegal Section at its October 3 meeting.  Kyna shared some best practices and guidelines aimed specifically at new graduate or less experienced paralegals.  Her presentation included professionalism for working in a law firm or legal setting; interaction with attorneys, clients and the courts, and productivity suggestions for handling organization, multi-tasking, and case management.  Kyna has 28 years of experience as a paralegal and presents election trainings for Lyons Gaddis clients. She has been employed by Lyons Gaddis for 14 ½ years as the Government Practice Group’s Special District/School District paralegal supporting litigation, elections, employment, and other client matters.

School and special districts, along with other governmental entities, are governed by many federal and state laws, including Colorado’s state laws related to public records and their record retention periods.  Section 24-80-101, C.R.S. and following, provide the statutory framework for the legal requirements for school boards of education and special district boards of directors to follow in order to determine what public records must be preserved as permanent records, along with what public records may be destroyed and when such destruction may occur.  Without having an adopted records retention schedule approved by the Colorado State Archives, no record may be destroyed.  This article provides an overview of how to create and adopt a records retention schedule for your local government entity so that records may then legally be destroyed, as well as reviews the benefits of establishing the retention schedule.

What is a records retention schedule?  A records retention schedule lists all records maintained by the school or special district, along with how long each record must be maintained.  The schedule sets forth which records must be retained permanently and which others can be destroyed once they have exceeded the minimum retention period. The records retention schedule acts as the legal authorization by the State Archives and State Auditor to then destroy the non-permanent records.

I hear it from my family and friends earlier every year:  “Can you believe the holidays are coming up?’  I know it’s just the middle of September and we’re going to be in the 90’s all week, but I did see the Halloween decorations on the shelves at Walgreens.  So, it’s only a matter of time before that gives way to an aisle filled with Christmas stockings and red and green m&ms.  I just received my first invitation to a holiday party last week.

And what goes better with holiday festivities than lots of wine and spirits?  If you are the hosting one of these gatherings, should you be worried about your responsibility for the person who has had too much to drink?  If that person gets in his car and winds up hurting someone are you responsible?  Assuming this is purely a social event, the answer is no – sort of.  Under Colorado Revised Statute 12-47-804 a social host cannot be held responsible for injuries caused by a person who became intoxicated at your party.  The exception to the rule is if the host “knowingly served any alcohol beverage to such person who was under the age of twenty-one years or knowingly provided the person under the age of twenty-one a place to consume an alcoholic beverage.”  This liability extends even to minors who may sneak a beer for friends while mom and dad aren’t watching.  So remember, eat drink and be merry, but make sure everyone is twenty-one.

One of the changes in the new “Tax Cuts and Jobs Act” (TCJA) affects couples contemplating a divorce where one party will likely have to pay alimony (maintenance in Colorado) to the other party.  Today, the payor of maintenance receives a tax deduction and the payee pays taxes on that income.  The new tax law eliminates the tax deduction for the payor of maintenance and eliminates it as taxable income for the payee. 

If you file for dissolution in 2018 and get a decree of dissolution with a maintenance obligation before the end of 2018, you will have the benefit or disadvantage, of the existing law.  But in 2019, the new tax law takes effect.  

Anton Dworak volunteered his services to help with the formation of the USS Colorado (SSN 788) Commissioning Committee.  The USS Colorado is the Navy’s newest Virginia Class attack Submarine.  The committee supports the crew and families of the submarine and educates the public about the role of the US Navy.  In recognition of his contribution, Mr. Dworak was named an honorary “plankowner” (part of the first crew) and received special recognition in the commissioning ceremony program.

If you own a commercial building and are looking to get the most value out of your investment, one option to consider is creating a commercial condominium association.  This article will explore some of the benefits of commercial condos, and provide a brief overview of the process to create a condo association.  A condominium is a form of ownership of real property within a common interest community where portions of the real estate are designated for separate ownership, and the remainder is designated for common ownership. Colorado permits this form of ownership pursuant to the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101 et seq. (“CCIOA”). According to CCIOA, no zoning ordinance, or other real estate use law or regulation may impose any requirement upon a condominium which it would not impose upon a physically identical development under a different form of ownership.  In other words, merely converting the ownership of the real estate to a condominium should not require additional governmental approvals or intervention.

In a commercial context, such as an office or industrial building, this form of ownership can create flexibility and value for an owner by creating individual saleable assets (units). Creating condos allows a building owner to avoid having to sell the property as a whole, and/or avoid going through a costly and time-consuming subdivision process to subdivide the land.  Additionally, the owner (called the “declarant”) has complete control over the condo process and result; including the control to define the specific offices, buildings, floors, and common areas, and control to determine the terms of the association and the management. Once the project is finalized, the declarant even has the control and flexibility to sell off some of the units, and retain ownership of others. Condos also offer an attractive form of ownership for potential buyers. Each unit owner becomes an owner in the association, allowing for the right to vote on important management issues, and the sharing of common expenses – typically determined by the square footage of a unit in relation to the building as a whole.  Potential buyers may appreciate that the common elements, such as structural building components, landscaping, and parking areas are all maintained by the association.  Business owners may also recognize that when they purchase a condo they are building equity in their business, rather than throwing money away for rent.

Adele Reester and Cathy Tallerico will both be presenting at this year's Special District Association (SDA) Conference in September, which will be held in Keystone. They will be speaking on the constitutional and statutory requirements affecting district websites so there is a better understanding of the accessibility compliance under the Americans with Disabilities Act, record retention requirements from the State Archives, and various First Amendment concerns for public forums and employees. 

Steve Jeffers opened an office for the firm in Steamboat Springs, Co in June. Steve plans to work in Steamboat on a part-time basis, in addition to his regular schedule in the Louisville office. The new office will help the better serve our West Slope clients and others while Steve spends more time enjoying the Colorado outdoors with his family in Steamboat. The office is located at 405 South Lincoln Ave., #205.

The firm has been collecting travel size shampoo, conditioner, lotions, etc. These items will be donated to the Boulder Shelter for the Homeless and the Safe Shelter of St. Vrain. Thank you to everyone who has participated as every little bit of these donations will help someone in need. Keep em' coming! 

Congratulations to Longmont’s Team Left Hand for helping to #CrushMS June 23-24 for Bike MS Colorado.  Lyons Gaddis is proud to help sponsor such a great team and support a great cause.

In 1982, Colorado voters passed the Gallagher Amendment to the Colorado Constitution.  The Amendment got its name from Dennis Gallagher, the state legislator that proposed the action.  The primary concern of the Gallagher Amendment was to set a specific policy for determining actual value and assessed value of property in relation to the collection of property taxes within the State of Colorado. 

More specifically, the Gallagher Amendment set a fixed ratio for the amount of revenues collected through property tax and divided those revenues into two major categories: Non-residential and Residential.  Residential, as it suggests, is the property tax revenue generated from the ownership of homes.  Non-residential includes everything else, from commercial properties and farms, to oil and gas properties.  The Gallagher Amendment requires that Non-residential property tax revenues make up 55% of total property tax revenues, leaving Residential to account for the remaining 45%.  Significantly, the Gallagher Amendment also fixed the Non-residential Assessment Rate at 29% and requires the Residential Assessment Rate to fluctuate in order to maintain the 55%-45% ratio between the two sources of revenue.  The combination of the 55%-45% ratio and the floating Residential Assessment Rate has resulted in a consistent “ratcheting down” effect for the Residential Assessment Rate between 1982 and the present. 

Our very own Brad Hall has been sworn in as the President of the Boulder County Bar Association. Congratulations! 

Lyons Gaddis was a proud sponsor of the 2018 Taste of Louisville & Taste 5K, what a fun day for the Louisville community!

One of the most rewarding aspects of my job is watching a client's carefully laid plans take shape.  Ziggi's Coffee began with a husband and wife team pulling espresso shots behind the counter of their Longmont coffee shop.  They are now in growth mode and are opening their tenth Colorado location, with more to come.  It has been an honor to partner with them on this journey.  Check out this article about their new Greeley location, but more importantly, check out their coffee!  https://bit.ly/2y8h7Kr #coffee

Eve Canfield is a board member of Safe Shelter of St. Vrain Valley.  She wrote an amicus brief on behalf of five nonprofit organizations in support of a victim of domestic violence that left her home state and came to Colorado with their child, in Parocha v. Parocha, No. 17SC406. The amicus brief contributed to the Supreme Court’s Opinion on May 21, 2018, which established a major advancement in the protections available for victims of domestic violence and their families. 

A permanent protection order was granted by county court, but the District Court reversed, stating there were insufficient contacts to establish jurisdiction over the non-resident husband.  The Supreme Court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident partner.

The sale or purchase of a business involves The sale or purchase of a business involves many decisions which create tax impacts for the parties involved, both at the time of closing and in the future. While the media reports focus on multi-billion-dollar mergers and acquisitions, most business transfers involve far less in the amount of money involved, but each sale or purchase represents a large investment of money, time, and emotion in the business by both the seller and buyer. In every transaction, the taxing authorities, either as a result of the completion of the sale of a business, or in the future as the business continues to operate, will receive taxes from the seller or buyer.

Businesses can be sold in a number of ways, including the sale of stock or limited liability company membership interests, however most purchasers do not want to assume the potential risk of past tax or operating liabilities of the business entity, or the purchaser does not want to inherit the tax basis of the business entity in the various assets which have been partially or fully depreciated.  Accordingly, for the bulk of business transfers, the seller and purchaser will structure the business sale as an asset sale and purchase.

The Northern Colorado Water Conservancy District influences many water use issues in Northeastern Colorado, including Boulder, Larimer and Weld Counties.  Northern Water is a public agency which is well-known for the construction and operation of the Colorado-Big Thompson Project. The C-BT Project collects West Slope water and delivers it to portions of eight Northeastern Colorado counties, providing supplemental water to more than 640,000 acres of irrigated farm and ranch land and about 960,000 people.

The following are some news items involving Northern Water which affect many of our clients:

• Eric Wilkinson retired after serving Northern Water as its General Manager from 1994-2018. Northern Water selected Brad Wind as its new General Manager.
• Following its Spring Water Users meeting, Northern Water Strong increased its 2018 quota allocation for the Colorado-Big Thompson Project to 80 percent citing strong regional water storage coupled with below-average precipitation. The May 1^st report from NRCS corroborates this decision, showing the median percent of normal snowpack and streamflow forecasts for Boulder Creek at 81% and for St. Vrain Creek at 60%. 
• In March, Northern Water conducted a sealed bid for 75 terminated C-BT units. Three parties were successful – one at $30,101/unit (50 units); one at $29,500/unit (2 units); and the one at $29,253/unit (23 units). Based upon monthly reported transfers, the C-BT market price appears to be approximately $28,500/unit.
• Also, in March, Northern Water auctioned off 15,000 acre-feet of C-BT water under its Regional Pool Program. Eight bidders were successful, with the high bid at $165.00/AF and the minimum successful bid at $126.00/AF. Bidders sought 38,985 AF of C-BT during this auction. To provide some perspective on the high demand for C-BT water, the 2017 Regional Pool auction for 12,300 acre-feet of C-BT yielded six successful bidders, with the high bid at $101.00/AF and the minimum successful bid at $81.00/AF.
• At its May meeting, Northern Water opened two separate rulemakings, each which has been continued to the June 14^th meeting. The first rulemaking action proposes modifications to the existing Regional Pool Program rules to ensure more efficient use of C-BT water, including:
• Allowing an Account Entity who contributed water to the same Regional Pool to lease water from that Regional Pool (currently prohibited);
• Eliminating the current restriction that a Regional Pool lessee must use all water from its Regional Pool account by the end of the water year in order to lease water from the Regional Pool in the subsequent year; and
• Giving the Board discretion to define a volumetric limit any single bidder may lease from the Regional Pool.
• The second rulemaking action proposes modifications to the existing C-BT tracking and accounting rules, to ensure maximum lawful use of C-BT water, including:
• Imposing upon Account Entities (those with authority to order C‐BT from Northern Water), additional accounting requirements for the diversion, exchange, or storage of C‐BT water and for Utilities that supply C‐BT Project water for municipal/industrial uses;  
• Requiring agricultural users, as well as municipal/industrial users, to maintain and submit accounting for the storage and subsequent use of untreated C‐BT water if that water is stored for longer than 72 hours in a reservoir with a decreed storage right;
• Requiring entities to keep daily accounting of C‐BT Project water stored, estimated losses due to evaporation and seepage from storage, and beneficial use of releases from storage; and
• Requiring Utilities that treat and supply C‐BT Project water for municipal/industrial uses to begin collecting daily information to be submitted monthly concerning the amount of treated C‐BT Project water provided to customers.
• More information on each rulemaking can be found at http://www.northernwater.org/sf/allottee-information/allottee-documents.