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|Johnstown Councilman's Odd Journey From
Accuser to Architect of Conflicts of Interest
Larimer County's Most Controversial Land Use Hearing and how one home owner
and Jownstown Councilman apparently hopes to profit from his influence
Loveland, August 23, 2019
Colorado 8th District Court Judge Juan Villaseñor ordered "Plaintiff's Motion for
Summary Judgement" earlier this month against Coulson Excavating stating,
"the [Larimer County] Board's decision approving Coulson's application is
vacated and this matter is remanded to the Board to hold the hearing on
Coulson's application again. Commissioner Donnelly will be recused from
participating in any part of that hearing or decision-making process under
Code Section 2-67(10)."
Kevin Lemasters is a leader in the group of Johnstown homeowners who fought
Larimer County's decision following the approval by the Board of County
Commissioners of Coulson's application for a "Special Review Permit" to excavate
gravel from around the Big Thompson River on the 50 acres the family owned
business purchased in 1993. Coulson first applied for the permit in 2003 to remove
gravel from their parcel east of I-25 and haul it off-site for processing at another
facility. By 2008, while the old application was still active, Larimer County required
a new application be made and a flood plain study which was completed in 2016.
In the intervening years, Johnstown annexed much but not all of the property surrounding the Coulson
property which had been used for agriculture. Johnstown re-zoned the surrounding areas for residential use
and builders began developing large tracks of homes now numbering over 1,000 today both north and south
of the area of the proposed gravel extraction but located inside the City of Johnstown which has no
jurisdiction over Coulson's property in the unincorporated county area remaining.
In 2013, more than a decade after Ken Coulson, President of Coulson Excavating, first announced and
posted with signs on the property his intent to locate a surface gravel mine, Kevin Lemasters and his wife
Kimberly purchased a new home from Oakwood Homes backing to the Coulson property. (click on the image
to the right of this article - highlighted in blue is Lemasters' home and north the Coulson property).
Conflicts of Interest - Lemasters The Accuser
Lemasters was an outspoken opponent of the Stroh Pit (name given to Coulson's proposed surface mine)
and along with his neighbors argued Larimer County Commissioner Tom Donnelly, who was re-elected in
2016, should not have participated in the Special Permit Review hearing in 2018 because he received large
campaign contributions two years earlier from members of the Coulson family. For his part, Donnelly has
argued his own home is located half a mile mile from a surface gravel mine and he is known to support
"property rights." Donnelly appeared generally unpersuaded by the evidence provided by the opponents
during the hearing last year that claimed Coulson's 7-year plan to remove gravel from Stroh Pit would result in
a reduction of property values and health risks to area homeowners.
Judge Villasenor's recent summary judgement took the legal community by surprise as reported in the
Colorado Sun which quoted Christopher Jackson, a Denver attorney who follows campaign finance laws
closely, and reported he is not aware of any similar court decision. Jackson is reported to have stated,
"Its certainly extremely rare, and I think the judge's decision makes clear that its rare."
It is rare since the opponents failed to satisfy the burden of proof that Donnelly did anything wrong by
participating in the vote and hearing. No evidence was produced of a "quid-pro-quo" that Donnelly agreed to
vote for the application two years earlier nor is there any evidence Donnelly would personally benefit from his
vote in any way. Politically speaking, Donnelly, who is term-limited from seeking another term in office, isn't
running for re-election so a no vote would have no different outcome on his ability to raise money to remain in
the same office. Conflict of interest laws and regulations propagated from those laws speak to whether the
decision maker has any other pecuniary interest in the outcome of decisions they make or can influence from
their official capacity.
Judge Villasenor's reasoning was the constitutional "due-process" rights of the plaintiffs were violated since
Donnelly should have recused himself from participating in the decision. If the Judge's ruling stands, it may
have impacts on a Loveland company's recent approval to mine in La Porte due to political contributions to
Donnelly as well. In addition, many serving on Loveland's City Councils have been recipients of generous
campaign contributions from McWhinney over many years thus placing at risk any "quasi-judicial" decisions
they may have taken regarding their largest campaign contributor; McWhinney.
Conflicts of Interest - Lemasters the Influencer
The Stroh Pit Special Review permit was approved under appeal by the Larimer County Commissioners in a
2-1 vote. Larimer County has only three County Commissioners and the other deciding vote with Republican
Donnelly was the late Lew Gaiter III, also a Republican, who has been replaced on the Commission by John
Kefalas, a Democrat. Steve Johnson, a Republican, cast the lone dissenting vote in 2018 against approving
the Stroh Pit.
As Judge Villasenor's ruling well documents, locally elected officials are acting as "triers of fact" when deciding
land use issues also referred to as "Quasi-judicial hearings." Like a case in court, it is important the "judges"
make their decision based only on the official record and information provided during the publicly noticed
hearings where all views can be voiced and any conflicting information refuted.
Councilman Lemasters attempting to influence Commissioner Johnson (see copy of his email upper left) prior
to the next hearing is a text-book case of exparte communication. Lemasters' overture to Johnson, indicating
a denial of the Special Review Permit will open an opportunity for Johnstown to acquire the property with the
county for the open space program Johnson promotes, attempts to plant a perverse incentive for Johnson to
vote against approving Coulson's application.
Especially troubling is Lemaster's own pecuniary interests in the matter especially as it relates to his position
on the Johnsontown City Council. Lots north of the Coulson property back to a dedicated open space
established by the developer when the subdivision was created and are appraised well above $500,000 with
many valued near and over $1 million.
Lemasters and his wife purchased their current Johnstown home south of Coulson's property on Vinewood
Way in late 2013 from Oakwood Homes for $355,756. If Lemasters is successful in scuttling Johnson's vote in
the next hearing via this alternative deal (through exparte communication as proposed in his email message
posted upper right) to have the City of Johnstown acquire the property for open space he could see a
significant increase of his own property value since it would no longer back to an industrial zoned lot but
instead open space.
Given Lemasters' own proximity to the proposed open space acquisition, it seems Johnstown taxpayers who
may have different plans for their tax dollars may have a conflict-of-interest complaint of their own to take up
against Councilman Lemasters who appears to be involving the city in a personal matter where he stands to
gain significantly. In addition, Couslon may also go back to Judge Villasenor if Johnson votes against his
permit application given the inappropriate contact from Lemaster to Johnson.
In his response to Lemasters, Commissioner Johnson explains the area is not in the current plan for acquiring
additional open space and in the last paragraph alludes to whether there is even a seller. Of course,
Lemasters is hoping another denied Special Use Permit will force Coulson to sell the property at a discount to
the City of Johnstown where Lemasters has already initiated a consideration of his plan.
The irony of a Johnstown Councilman trying to arrange the acquisition of a 50 acre parcel next to his own
home for open space as the result of getting a court to overturn Larimer County's permit to the owner
because one commissioner may have a conflict of interest is rich.
No word on whether any taxpayers in Johnstown are looking to bring the city to court for Lemasters failure to
recuse himself from an official matter where his own conflict of interest couldn't be more obvious.
Anyone is welcome to express their unedited opinion on this matter on our news blog.