NEIGHBORHOOD DISSOCIATION: Murphy Creek feud over alley access, a speed bump and cattle takes a turn

AURORA | Governance has resumed in Murphy Creek after a sprawling squabble over property rights, land fees and the future of the east Aurora neighborhood spilled over its boundaries last month.

On Dec. 18, five new directors assumed control of the elected board of Murphy Creek Metropolitan District No. 3, which is responsible for managing a $1 million landscaping and facilities budget funded by fees on the district’s 1,400-plus homes.

It was the latest episode in a yearslong drama centering on the board.

Murphy Creek residents didn’t get to vote on the change. Instead, in a rare and possibly unprecedented move, Aurora City Council members ousted the previous board and appointed a new one, citing a history of feuds within the district escalating into courtroom cage matches.

First, there’s the alley.

Murphy Creek spent $1,550 last year to extend a former board member’s lawn across the entrance of an alley to block through traffic past his house.

The detour was short-lived. The district spent another $8,105 to change the alley back months later after hundreds of residents signed a protest petition and the city dragged the board member, his wife and the district into court.

The board member, Matt West, died in September. Other former board members said West suffered from cancer but that he was hounded into his grave by some Murphy Creek residents who didn’t care about risky conditions in the alley or West’s years of fruitless attempts to get traffic to slow down.

“Neighbors were actually setting up on that lawn,” ousted board member Doug Schriner said, describing how West’s detractors camped out next to West’s home to rally opposition.

“They were setting up tables to sign petitions and having a barbecue out there to torment him. I said, ‘Matt, either turn on the sprinklers or get in your car and go to a movie, because they’re doing it to get your goat, and they’re trying to make an event out of this to make you look bad.’”

Then, there’s the developer.

Two real estate development companies associated with Murphy Creek’s developer, Harvey Alpert, sued the district, its board, Schriner and a host of other district consultants and officials in June 2023.

Alpert’s companies brought the suit in response to the former board’s attempts to impose fees on land that remains undeveloped more than 20 years after construction in Murphy Creek began.

The district says the companies’ vacant land is costing Murphy Creek residents money.

Alpert’s companies say the district is using fees to skirt Colorado’s Taxpayer’s Bill of Rights. They also allege that the fees singling out the developer’s land were just one example of “absurd, deceitful, tortious, penalizing and overall harassing misconduct” targeting Alpert.

“The issue here is that for five years the former directors and consultants made a concerted effort to punish and harass the developer,” an attorney for Alpert’s companies wrote in an email.

“In doing so, they have violated all taxpayer rights under the Colorado Constitution and deprived the developer of federal constitutional rights.”

And then, most recently, there have been the questions about the conduct of the district’s 2022 and 2023 elections, which gave Aurora’s council a reason to turn the board upside-down.

In November, Alpert’s companies filed a motion in their latest lawsuit against the district, alleging that the board was “entirely vacant” due to the district’s failure to properly announce its 2022 election and properly file oaths of office and other paperwork with the state in 2022 and 2023.

The motion said the election law violations meant Schriner and fellow board members Richard Berge and Bob Gaiser were unable to serve. The developer asked Arapahoe County judge Elizabeth Volz to step in and block the three from acting on the district’s behalf.

“There is no telling what misconduct the three directors on the board will undertake next, but if history is any indication, they will continue to violate their oaths of office,” the developer’s attorneys warned Volz.

The same motion also claimed that state law would allow the City of Aurora to appoint members to the board if it was truly vacant, since it was the city that signed off on the district’s founding documents.

Following the motion to block Berge, Gaiser and Schriner from serving on the board, attorneys representing Murphy Creek acknowledged the failures to file paperwork after the 2022 and 2023 elections, blaming “oversights” by district administrators.

The district agreed to ask Aurora’s City Council to formally appoint Berge, Gaiser and Schriner on Dec. 18, after which a special election would be held to establish the will of Murphy Creek voters.

But on Dec. 18, Councilmember Steve Sundberg surprised the former board and some of his council colleagues when he moved to replace Berge, Gaiser and Schriner with a new slate of residents, including Margaret Booker, Dennis Lyon, Glen Muller, Alex Ortiz and Joshua Rodriguez.

For the new board and its supporters, the vote represents an opportunity for the district to turn over a new leaf and move past years of courtroom conflicts that they accuse the former board of instigating.

Booker slammed the previous board for what she described as a track record of irresponsibility, mentioning the showdown with the city over the alley connecting Coolidge Circle and Florida Avenue.

“This community board was to represent the community and not simply serve their own personal interests and what they wanted in the community,” she said on the 18th. “Unfortunately, that is not what we have witnessed over the years.”

Lyon, who was named board president Dec. 20 during the group’s first meeting, was reluctant to talk about the actions of the previous board. In an interview with the Sentinel, he described his role as stewarding the district at least through the upcoming special election, which will take place during the first half of 2024.

“I’m not going to refer to anything in the past,” Lyon said. “But my approach is, we work for the people who live out here. We are open to their input and discussion. And we will try to make every decision that we can that’s in the best interest of this community.”

For the three former directors — and for Councilmember Alison Coombs, who cast the sole “no” vote against the Dec. 18 appointments — the council’s vote was an overreach that threw out the results of a fundamentally trustworthy election process.

“It didn’t change how we acted,” Schriner said of the irregularities that occurred in 2022 and 2023. “It didn’t change our commitment to the community.”

Berge, Gaiser and Schriner also described the appointment of the new board as the latest attempt by Alpert to manipulate politics in Murphy Creek since residents stood up to the developer by trying to collect fees on his yet-to-be-developed land.

“Harvey’s been trying to sue our community for years because he figured he didn’t have to pay metro fees,” Berge said. “None of the city council members and mayor met the five people that Steve appointed. He just sandbagged us on it.”

While Sundberg brought up the brawls involving the city and the district’s developer on Dec. 18, he later pushed back on the suggestion that the new board was appointed to appease Alpert, saying the five new directors were chosen based on their involvement in the community, professional backgrounds and availability.

Lyon and Rodriguez were both emphatic that their loyalties lie with the residents of Murphy Creek first rather than the district’s developer.

“I’m going to pour my heart and soul into this,” Rodriguez said. “I obviously support the decision, but I can understand and appreciate someone’s concern or criticism about it. And I hope that through action and through consistency that we can get the district members to feel good about the decision that was made.”

Regardless, even Sundberg acknowledged during the Dec. 18 meeting that the phenomenon of a city council choosing the composition of a separate elected government was “pretty unique.”

“It’s better left up to voters to decide board members and elected officials, but this is unique, and this is in our hands at this point,” Sundberg said.

Aurora suburb rode early wave of metro district development

Dennis Lyon’s second life in local politics follows a career of close to four decades with the City of Aurora’s Golf Division, which he managed from 1978 until his retirement in 2010.

Lounging at one of the tables outside of the Murphy Creek Golf Course clubhouse, he described how the picturesque prairie suburb east of E-470 grew up around the golf course that he helped design and build.

The development’s centerpiece is the city-owned golf course, which is surrounded by single-family homes and offers sweeping views of the grasslands to the south. Lyon said Harvey Alpert first approached Aurora’s City Council to talk about his plans for Murphy Creek in 1995.

Around 1998, construction crews started moving earth to make way for the golf course, and the district’s service plan — outlining the purpose of Murphy Creek Metropolitan District No. 3 and its relationship with Districts Nos. 1, 2 and 4 — was signed.

“It was really fun, watching the scrapers and everything, moving hundreds and thousands of yards of dirt,” Lyon said. “Back then, there was nothing out here but two houses — one at the corner back there at Gun Club (Road), and then one down on Jewell (Avenue).”

Metropolitan districts are a type of local government in Colorado that are empowered to collect taxes and fees from property owners to fund infrastructure as well as services such as landscaping and maintaining community recreation centers within the district’s boundaries.

The entities are often set up by real estate developers to shift the cost of building sidewalks, streets, water lines and other public infrastructure onto homebuyers, with districts issuing tax-exempt bonds that residents are obligated to pay off over the following decades.

Murphy Creek issued $27.6 million in bonds in 2006. But the district has struggled to pay back the debt, for years failing to make a dent in the principal amount of the bonds.

An agreement to refinance Murphy Creek’s bonds, making repayment less punishing, was set up by the old board and finalized under the new board. Taking advantage of a lower interest rate of roughly 0.8%, property tax payments are expected to fall by $80 to $150 per month for homeowners, which Lyon called “a great win for the people that live out here.”

Especially since the 2000s, metro districts have become a ubiquitous tool for financing new development in Colorado, with 936 new districts formed between 2000 and 2009 compared to just 101 formed between 1990 and 1999, according to a report by the Colorado Futures Center.

Developers have argued that, especially given rising construction costs, metro districts have become essential as a method for bankrolling new homes. But, as districts have come to play a more prominent role in the lives of Colorado property owners, their misuse by some developers has also come under scrutiny.

Metro districts are governed by a board of people who live or own property within the district. When a district is formed, typically, the only individuals qualified to vote on its founding documents are representatives of the developer who owns the land that the district sits on.

This allows developers to shape district governance without any input from future homeowners, including by binding districts into multi-district structures where a “service district” that remains under the control of the developer is allowed to budget and spend the property tax revenue collected from residents.

Homeowners live inside of “financing districts” where they are eligible to run for the board, but intergovernmental agreements require these districts to hand tax revenues over to the service district, meaning taxpayers in financing districts have little control over how their tax dollars are ultimately spent.

Critics of metro district abuses commonly refer to service districts as “master” districts, while financing districts are termed “slave” districts. Developers say these multi-district structures make it cheaper to offer the bonds that are used to fund public improvements — others describe the “master-slave” arrangement as an end-run around democracy that encourages developers to take financial risks while taxpayers remain on the hook for debt repayment.

Murphy Creek Metropolitan District No. 3 was originally established as a financing district within a four-district structure that required it to hand tax revenues over to District No. 1. Today, the board of District No. 3 is governed by Murphy Creek residents, while the board of District No. 1 consists of Alpert and four of Alpert’s family members.

Lyon bought his home in Murphy Creek in 2004 as construction in the district was booming.

“I was on the district board and looking after the neighbors’ interests with the developers, but I had already been working with them on this whole project, so we were pretty much on the same page,” he said. “But it was good to have somebody who cared about the people who lived here first, as opposed to making money first.”

His first term on the board lasted until 2015, the same year he was appointed to the city’s Planning & Zoning Commission.

When the legitimacy of the board of Murphy Creek was called into question late last year, Lyon said he was contacted by Steve Sundberg, who invited him to return to the board.

Explaining his decision to come back, Lyon mentioned the urgency of refinancing the district’s bonds as well as his desire to give back to the community where three of his children also own homes.

“I’ve lived in the city since ’73. I’ve raised four kids here,” Lyon said. “I love this city, and I love this community. If you walk your dog here, everybody waves at you when you walk by. I mean, I built this golf course. I like it here. This place matters to me.”

Murphy Creek board ‘went rogue’ to prevent speeding through contested alley

While Dennis Lyon said he was mostly unfamiliar with the controversies that dogged the previous board, others said the district’s conflict with the city in particular fueled residents’ exasperation over where the former board members were choosing to commit Murphy Creek’s legal resources and money.

The controversy dates back to at least 2021, when the district acted on complaints by then-board member Matt West about cars speeding through the alley, located next to his home in the Parkways section of Murphy Creek.

Spanning roughly 300 feet between Coolidge and Florida, the alley is flanked by garage doors, and residents living next to the alley are limited in their ability to check for oncoming traffic before pulling out into the alley.

“In most garages, when you’re backing out, you’re backing out into your driveway,” Doug Schriner said. “People were coming through there going 35 or 40 miles per hour.”

While the district has internally referred to the alley as a “private drive,” the city has argued in court filings that the alley was dedicated to the city for public use when it was platted and that it has been used for two-way traffic for more than 20 years.

Aurora holds an easement crossing the alley that guarantees public access as well as utility workers’ access to underground water and sewer lines. Ownership of the alley itself is divided among the district and neighboring property owners.

In May 2021, board members granted a request by West to install one or more speed bumps in the mouth of the alley at West’s own expense. At the time, neighbors told the board that they were communicating with the city about the installation.

The minutes of subsequent board meetings indicate that, once the speed bumps were installed, residents began approaching the board to complain, while efforts to get the city’s blessing seemed to drag on without resolution.

“We put in speed bumps that were pretty aggressive. They made you slow down to 5 mph. That’s the point,” Schriner said. “A bunch of people said, ‘It’s ruining my car!’ Well, it’s private property, get the hell out of there! You know? If you don’t live here, you don’t have a say. … They were pissed off because we were making them drive on the road instead of through somebody else’s driveway.”

Schriner said the backlash led to rumblings about an attempt to recall himself and other board members. The situation was ultimately resolved by the intervention of the city, which dispatched workers to dismantle the speed bumps in December 2021.

Schriner said police officers were present during the removal, apparently to discourage interference by neighbors.

Emails published in court filings by the district appear to show senior city planner Kim Kreimeyer giving West the go-ahead to install three speed bumps in June 2021 after months of correspondence between West and Aurora Planning and Development Services, despite the city’s insistence in its own filings that West took action “without consulting with the city.”

It is unclear, however, whether the speed bumps that were installed conformed to the original specifications that West provided to city planners.

Stacy Dixon — who lives across the street from the alley and in 2023 circulated a petition opposing Schriner and other board members’ decision to seal it off — said the bumps were “much higher and more aggressive” than what had been proposed, which was the primary reason why residents complained to the board.

A later email from senior city attorney Michelle Gardner to the district’s attorney, Paul Rufien, stated that the speed bumps installed by West had not been licensed by Aurora’s Public Works Department and damaged the vehicles of citizens who later complained to the city.

Gardner also said the speed bumps did not have gaps on the sides to allow for proper drainage and that the city cut West a check for $2,981.50 after they were removed and returned to him.

Throughout the summer of 2022, Rufien provided periodic updates to the board about the district’s attempts to compromise with the city on traffic-calming measures.

In September 2022, Rufien told the board that the city’s response to the district was “not acceptable,” according to meeting minutes. Rufien said that he would “continue to work on this with Mr. West.”

One month later, the board — which by this time included Richard Berge, Bob Gaiser and Schriner — unanimously signed off on a plan to remove the concrete at the end of the alley and replace it with landscaping, blocking traffic from entering and exiting onto Coolidge. West abstained from this vote, as he did in 2021.

They voted for a second time on the plan in April 2023, and West told his fellow directors that he would seek proposals for the work and submit it to be reviewed at an upcoming board meeting.

Subsequent meeting minutes do not describe any such review, and when reached by the Sentinel, district manager Shannon Torgerson said she didn’t know if the proposal was voted on by the board and that she didn’t receive a copy of it until it was time to pay for the work, which was completed in June.

Murphy Creek paid $1,550 to cover part of the cost of excavating the Coolidge side of the alleyway and replacing it with landscaping that adjoined West’s front lawn.

Once again, the district had followed through on its promise to restrict traffic through the alley.

Once again, the City of Aurora stepped in, this time filing a lawsuit against the district, West and West’s wife, which demanded the alley be reopened and requested an order from judge Elizabeth Volz that would prohibit similar work.

Large vehicles such as fire trucks risked sinking into the sod if they tried to drive over it and through the collapsible bollards that had been planted in the grass, the city said, adding that the weight of a vehicle could compress the water lines underneath and cause them to break.

By July 2023, the closure of the alley was apparently disrupting public services — the city said in one of its motions that a fire truck and ambulance had been delayed while figuring out how to reach the location of a stroke victim, and that trash trucks were also having difficulty navigating through the area.

“If other property owners exercise the same ‘rights’ and obliterate the easement, the subdivision access becomes impossible and dangerous,” the city’s motion reads.

At the same time, residents of Murphy Creek were growing increasingly frustrated by what they viewed as the board’s heavy-handed approach to regulating traffic in the alley.

Dixon said she had been aware of West’s objections for years because of her proximity to West’s home, mentioning how the former director at first used flags and signs to try to discourage people from driving through the alley before he joined the board in 2020.

“It’s an important artery, because Coolidge Circle can get really backed up with a lot of cars,” Dixon said. “Sometimes, it’s actually safer to go through the alley, especially if there’s an Amazon truck or cars blocking the way. So it’s like any of the alleyways in our system: they don’t always need to be used, but people need to have access to them.”

Dixon was alarmed by the board’s decision, and she and other homeowners began showing up to board meetings to try to persuade members to reverse the closure of the alley. On July 10, the former board agreed to abide by the results of a petition asking it to restore the alley — if Dixon and others were able to gather 300 signatures from registered electors.

Meanwhile, the district was countering the city’s courtroom claims with claims of its own — that the district and the Wests were allowed to install traffic-calming measures on their own property, that emergency vehicles and utility trucks could safely drive over the grass, and that “public access” had been preserved because a sidewalk allowed people to enter and exit the alley at Coolidge on foot.

“The (city’s) easement is not a street, road, alley or other city-owned traffic lane. The easement crosses privately-owned driveways,” Rufien wrote. “The city does not like the use defendants have made of the property that they undisputedly own. With that as its sole reason for filing this lawsuit, the city attempts to manufacture causes of action that simply do not exist.”

Dixon and the other petitioners eventually delivered more than 300 signatures to the board, and in August, under fire from both the city and residents, the board acquiesced to removing the landscaping and repouring concrete, again allowing cars to enter the alley via Coolidge.

The project cost $8,105, bringing Murphy Creek’s total bill for the landscaping and restoration of the alley to $9,655.

The city informed Volz after the board’s decision to restore the alley that settlement negotiations were underway. However, Aurora’s lawsuit against the district remains ongoing, even in light of West’s death.

Writing on behalf of the City Attorney’s Office, city spokesperson Ryan Luby declined to comment on the progress of the case, instead referring the Sentinel to public court filings.

While Dixon said she wasn’t comfortable sharing the petition sections themselves, she said all five of the new directors had signed either the petition itself or a separate signature list for those sharing a home with other people who signed.

Lyon later insisted that he never signed the petition and said that, while he was aware of a dispute over the right-of-way, he never picked a side in the conflict.

Joshua Rodriguez said he started taking an interest in district politics as the conflict over the alley was spilling out into the community.

“I would say it was the talk of the town for quite a while,” Rodriguez said. “I gathered overwhelmingly that the entire neighborhood didn’t believe that project was fair. And just really from a fiscal standpoint, I had a problem with the fact that we paid for it. Like, the community paid for it.”

Rodriguez, a retired U.S. Marine Corps officer and human resources professional, bought his home in Murphy Creek in 2020. He said that he didn’t want to dwell on the actions of the previous board but that when he sensed that at least some of his neighbors were ready for a change, he began attending meetings regularly and made plans to run in the district’s next election.

The opportunity to serve came earlier than anticipated when Harvey Alpert, Murphy Creek’s developer, challenged the legitimacy of Berge, Gaiser and Schriner.

Rodriguez, like new board members Glen Muller and Alex Ortiz, submitted an application expressing his interest in serving on the board to the district’s management company, which shared the application with Steve Sundberg.

“Once I started attending the meetings, I did see overwhelmingly that there was this level of mistrust between the community and the board members,” he said. “I would like the perception to be that we’re not over the community, we’re a part of the community, and we represent the community’s interests.”

Explaining his decision to replace Berge, Gaiser and Schriner with a slate of new directors, Sundberg said in an email to the Sentinel that the former board “went rogue” when it voted to interfere with the city’s easement in the alley next to West’s home.

“This type of bravado has likely led to other poor decision-making in the financial interests of the neighborhood,” Sundberg wrote, adding that residents would have the opportunity to elect new board members within six months.

When asked whether he communicated with the district’s developer about the appointees prior to the council’s Dec. 18 vote, Sundberg said that he “did not communicate anything about candidates or appointees with the developer before the council vote.”

An attorney representing Alpert’s companies in Murphy Creek said Alpert and an attorney communicated with Sundberg shortly before the council meeting “regarding misinformation that was provided by the prior board,” but that the appointments “likely had a lot more to do with the harm the prior board was causing the community, and the dispute with the developer is just one of many examples of that.”

Sundberg subsequently forwarded a Dec. 18 email exchange with the attorney in which the attorney pushes back on various statements by Schriner. The Sentinel also filed a Colorado Open Records Act request and independently obtained the emails, which did not mention the new board. Sundberg said he did not mention any of the five director candidates in his interaction with the developer.

The council member said that, prior to settling on the five, he conducted interviews, heard from supportive residents and reviewed the forms that some of the group submitted in response to emails as well as announcements soliciting applications from interested residents that Torgerson said were sent through an online portal for homeowners.

Sundberg said he interviewed Muller, Ortiz and Rodriguez after they submitted forms and were recommended by a Murphy Creek resident who regularly attends board meetings. He described knowing Lyon from Lyon’s former work with the city and said he interviewed Booker after she reached out and expressed concerns about the possible reappointment of the previous board.

Candidates’ involvement in the community, attendance of board meetings, awareness of neighborhood issues, work and volunteer experience, understanding of transparency and availability were all things that Sundberg said he weighed while making his final selection.

Dixon said she was “optimistic” about the new board and said many of her neighbors who participated in the petition drive had also reached out to the council to urge them to consider new faces.

“I’m hoping that this new temporary board can at least get our district back on track, and then that we can have an appropriate election within six months to elect board members that the whole community can be involved in,” she said.

Five-year spat over vacant land brought down former Murphy Creek board 

The two real estate companies controlled by Harvey Alpert also responded positively to the appointments, writing in a motion following up on the one that led to the former board’s dismissal that the “risk of mismanagement and continued abuse of the district’s powers by Douglas Schriner, Richard Berge and Bob Gaiser is no longer a threat.”

The same attorney said the appointments were “not surprising” given what he described as mismanagement and illegal conduct by the previous board — including the attempts to impose certain fees on the developer’s vacant land, the alleyway dispute and the mishandling of the 2022 and 2023 elections.

But members of the former board insist that Alpert was not only in the wrong but also exploited a technicality to overthrow the political system within the district and improve his chances of prevailing in court.

The legal battle over how Alpert’s companies have used their yet-to-be-developed land can be traced back to the collapse of the housing market and economic recession around 2008.

As residential construction struggled, the companies leased the land to a rancher who used it to graze cattle and grow crops. Since the market recovered, the agricultural use of the land has continued.

Although the land is slated for eventual development, the companies say they are not required to develop it within a set timeframe. Development would mean more residential buildings in Murphy Creek and more property tax dollars that could be used to pay back the bonds that Murphy Creek for years struggled to make interest payments on.

The developer says Murphy Creek is required by its service plan to pay for the infrastructure that would allow the land to be developed. So far, Murphy Creek has refused to pay.

Schriner said that, around the time he was appointed in 2016, he began to have concerns about the “master-slave” structure of the Murphy Creek districts, in which Murphy Creek Metropolitan District No. 3 handed over property taxes raised from residents to District No. 1 to be budgeted.

After he began voicing his opinions about the arrangement, Schriner said District No. 3 began the process of distancing itself from District No. 1. Friction between Schriner and other district officials led to him stepping down in 2017.

Schriner said that he and other residents subsequently spoke out against a proposal to refinance the district’s 2006 bonds, which he said would have benefitted the developer while providing no benefit in the form of lower taxes to district homeowners.

Brian Matise, a local attorney who has advocated at the state level against the misuse of metropolitan districts by developers, also spoke against the refinance in 2017. The district’s board ultimately declined to move forward with the deal.

In 2018, Schriner was again elected, along with other board members who he said were more receptive to his concerns about the developer’s influence over District No. 3. Shortly after the 2018 election, the board named Matise as its attorney.

It was around this time that the developer alleges Schriner enacted a conspiracy with the rest of the board, Matise and district communications contractor Margaret Sobey to illegally punish the developer for the lack of construction on the vacant land.

The lack of development on Alperts’ companies’ vacant land galled the former board, including Schriner. In 2018, 2019 and 2021, Murphy Creek tried to collect special fees on unplatted land and land used for agriculture in the district.

“Our hope was that one of two things would happen,” Schriner said of the decision to impose the fees. “Either (Alpert) would come to us and say, ‘Look, that doesn’t make sense. Let’s talk about what makes sense.’ Or, even better, he would start selling off the properties, and that would be developed, and it would all be incorporated, (and) then we could afford the debt that we’d been saddled with. But neither happened.”

In district documents and court filings, the district also describes “nuisances” spawned by the vacant land that cost the district money. Grazing cattle, weeds, prairie dogs and youths setting bonfires all imposed downstream costs on Murphy Creek that land fees would offset, the documents and filings said.

Alpert’s companies brought their first lawsuit challenging the fees on their 75 or so acres of undeveloped land in 2019, describing them as a penalty against agriculture and arguing that they were disconnected from the actual cost to the district of providing services.

The developer also scrutinized the board’s timing of the fees in relation to the end of the tax collected to fund the operations of the district.

The tax was approved in 1998 and scheduled to sunset in 2019. Murphy Creek attempted to rally resident support for continuing to collect the tax in 2016 and 2018 — both times, voters rejected ballot items that would have preserved it.

With the evaporation of its budget looming, the district opted in November 2018 to instead impose fees, including the special fees that applied to the developer’s vacant land.

Under Colorado law, fees are distinct from taxes in that they pay for specific services rather than fund general government operations. Importantly, unlike taxes, fees do not require voter approval.

The developer argued that these fees actually constituted an unlawful tax, since they were being used to fund general government operations and were never approved by the public. Murphy Creek insists it calculated the costs to property owners for paying for the various services offered.

In September 2020, Volz found that the district failed to adequately explain the rationale behind the fees applying to the agricultural land and said the costs for security, snow removal and landscaping appeared to be close to half of what the district initially claimed.

The judge ruled that the 2018 and 2019 fees were invalid, but declined to say whether they constituted an illegal tax.

“This ruling does not mean that plaintiffs cannot be assessed service fees at all,” Volz wrote in her ruling. “Rather, the fees must relate to the services provided.”

In 2021, the board again signed off on a resolution that included special fees which would apply to the developer’s land. Alpert’s companies paid the 2021 fees under a letter of protest after the developer said Matise promised the district would pay for some of the infrastructure needed to build on the vacant land and restore landscaping near the land to irrigated turf.

The district never followed through on this alleged promise.

In June 2023, Alpert’s companies filed its latest lawsuit naming the district, its board, Schriner, Matise, Sobey and “several ‘John Does’ reserved for other Board directors and / or District consultants,” among other district officials, as defendants.

The developer once again asked Volz to invalidate the fees and order the district to refund the money that the developer paid under protest plus the interest that could have been earned on the money. Alpert’s companies asked for damages in light of what they say amounts to civil conspiracy, fraud and Constitutional rights violations committed by the defendants.

Alpert’s companies’ original and amended complaint allege years of various illegal activities, mostly revolving around the approval of the fees as well as Matise’s professional conduct before, during and after the developer’s previous lawsuit against the district.

Matise is accused of providing legal advice that “no reasonable attorney would provide,” namely that the developer was illegally using its land for the purposes of agriculture and that the district should put off refinancing its bonds, decline to pay for infrastructure on the developer’s land and implement fees to put pressure on the developer and avoid voter approval for a tax.

The lawsuit also characterizes Matise’s pursuit of an appeal of Volz’s 2019 ruling — despite the fact that the district had backed off of its fee schedules — as improper.

Matise declined to comment for this story, citing the advice of his own attorney, but in Matise’s motion to dismiss, his attorney characterized the developer’s lawsuit as an attempt to punish Matise for advocating on behalf of the district in court. and legitimately exercising his freedom of speech in public statements regarding developer abuses of metro districts.

Matise’s attorney asked that the case against Matise be thrown out as a strategic lawsuit against participation, or a SLAPP case, which is a type of lawsuit dismissable under Colorado law where the plaintiff intends to intimidate a critic into silence by imposing the burdens of mounting a legal defense.

“Stripped down of the dramatic descriptors used by plaintiffs in the complaint, the conduct they allege to be part of the conspiracy actually consists of advocating for his client and expressing his opinion on public issues,” Matise’s motion reads.

Volz sided with Matise, saying the developer’s case “(implicated) Matise’s right to engage in public speech as well as speech and conduct involved in judicial proceedings.”

She also opined that the developer was unlikely to succeed in its allegations of fraud, civil conspiracy and Constitutional rights violations against the attorney.

Volz dismissed Matise as a defendant in October. The developer again named him in an amended complaint filed in December, and Volz again ordered in January that Matise be excluded as a defendant.

As for Murphy Creek and the board members named in the lawsuit, the developer’s case revolves around the fees approved in 2021. Alpert’s companies are seeking damages from the defendants to be determined at trial as well as an order that the district account for all revenue spent since 2019.

Attorneys for Murphy Creek have argued that the developer’s lawsuit was filed outside of the two-year statute of limitations. And even if it had been filed in a timely way, the district argues it is protected by Colorado’s Governmental Immunity Act.

The district largely waved off the accusations of the developer as lacking specificity and evidence which would support findings of conspiracy, fraud or rights violations.

Schriner and Sobey’s motion to dismiss — joined by Sobey’s consultancy, and another board member, Margaret Rash, who was not named in the amended complaint — argued that the fees were enacted by the district rather than the individual defendants.

The motion also characterized the developer’s allegations as baseless and accuses Alpert’s companies of rehashing the same grievances raised in 2019.

On Nov. 15, Alpert’s companies filed their motion asserting that the Murphy Creek board was vacant due to the district’s failure to file necessary election paperwork with the state in 2022 and 2023.

On Dec. 18, the motion dragged years of conflict in Murphy Creek into the public eye when Steve Sundberg sponsored a proposal to appoint directors to the district board.

Rufien, the attorney for the district, wrote in a letter to the council prior to its vote that organizational changes within the district’s management company — Cherry Creek HOA Professionals was bought by Goodwin & Company in October 2021 and started to transition to the computer systems of its new parent company in 2023 — as well as Rufien’s own failure to oversee the election process caused the irregularities.

He asked the council on behalf of the district to appoint Berge, Gaiser and Schriner. 

On Dec. 18, with Rufien present, the council voted to oust the three instead.

Special election will let residents decide the future of Murphy Creek 

Today, the district, its board, Doug Schriner and Margaret Sobey remain among the defendants in the developer’s most recent lawsuit.

District manager Shannon Torgerson said Murphy Creek’s insurance has so far paid for the costs of defending the district against the city’s lawsuit and the most recent lawsuit by the developer.

The district paid its own attorney fees in the developer’s first lawsuit. Torgerson said the total costs of that representation had not been tabulated. She said the district’s insurance rates have not been affected by recent litigation.

Dennis Lyon said the board planned to hold a closed-door meeting on Jan. 17 to discuss the pending lawsuits involving the district. The attorney for Alpert’s companies said the developer has tried to settle with the district in the past and that they are “still open to a settlement with fair, equitable terms.”

When the Sentinel asked the three former board members whether they would consider running in the district’s upcoming special election, they brought up Harvey Alpert’s alleged willingness to take legal action against district officials who have publicly opposed and criticized him.

“That’s one of the reasons why I would hesitate to run for a seat again,” Richard Berge said. “Supposedly you’re sheltered from that. But if they decide to go after you personally, why would I want to expose myself to that?”

The three also expressed skepticism about the new board, which Schriner characterized as having been thrown into their roles at the behest of Alpert without preparation or resident input.

While Schriner told Steve Sundberg in an email Dec. 17 that if the councilor was able to find “committed individuals,” the current board would step aside, Schriner questioned whether the five new members would be able to find their way without the ousted members’ help.

“Now they’re thrown into the fire,” Schriner said. “We just hope they don’t burn the place down.”

Berge, Gaiser and Schriner’s seats were available along with a vacant seat during the district’s May 2023 election. Per state law, because the number of candidates who filed to run for office was less than the number of available seats, ballots were never mailed, and Berge, Gaiser and Schriner were seated automatically.

While the three may not have been voted into office in 2023, Berge argued that this did not reflect poorly on him, Gaiser or Schriner, instead blaming apathy among district residents for the lack of competition. Schriner also accused the five new board members of wanting to hold elected office without going through the work of campaigning.

“There’s a value in campaigning for the position, and not one of them has done that,” Schriner said. “Who do they represent if they haven’t campaigned?”

The ousted board members haven’t made up their minds about running to reclaim their seats in 2024. Lyon and Rodriguez said they too haven’t decided whether they want to run.

“But once I’m in something, I’m in it,” Rodriguez said. “We are going to do things the right way.”

Lyon wrote in an email responding to the allegation that the new board was installed in an act of deference to Alpert that his political decision-making will revolve around the well-being of district residents.

“The developers in Murphy Creek are not my concern,” Lyon wrote. “How I vote in any situation will be driven by my commitment and dedication to the residents of Murphy Creek.”

As to whether Murphy Creek’s developer would actively support or oppose candidates in the upcoming special election, the attorney for Alpert’s companies didn’t rule out the possibility.

“This hasn’t been considered yet, but the developer would like to see leadership that complies with the law,” he said.