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Legal process in TreeTops suit moves forward

As per the legal process, attorneys for Archuleta County, TreeTops of Pagosa, LLC, and Bill Darling have filed their responses following a June 21 motion seeking to have a judgement made that would put to rest a portion of a lawsuit filed by Darling.

Darling’s suit alleges that county staff and the commissioners acted beyond their bounds and with disregard to county regulations and Colorado law during various stages of the TreeTops subdivision planning and approval processes.

A portion of Darling’s suit claims that actions of the BoCC and planning commission “were judicial or quasi-judicial functions that exceeded the jurisdiction of the BoCC and/or the PC or were the result of an abuse of discretion by the BoCC and/or the PC.”

The complaint calls for a review of the actions under Colorado Rules of Civil Procedure Rule 106(4).

In the June 21 motion for summary judgement, attorneys for the BoCC and TreeTops argue that such a review cannot be completed because proper steps were not taken in a timely manner to begin the process.

The responses grapple over the validity of applying various rules and reviews for relief in the suit.

In his response, Darling alleges that the misconduct by the county was broad and extended beyond the BoCC’s final decision regarding TreeTops’ Planned Unit Development plan.

“Since the misconduct of the County was so extensive, an action under Rule 106(a)(4), by itself, does not provide an adequate remedy. It is well recognized that an action under Rule 106(a)(4) may be combined with other types of claims such as claims for declaratory judgement pursuant to Rule 57...,” which Darling also filed for, according to Darling’s response.

Darling proposes that relief under Rule 57, which provides actions for a declaratory judgement, is appropriate in the case due to the limitations of Rule 106(a)(4).

In the response, Darling takes another approach by alleging, “So far, the Defendants in this case have filed two motions that are based on hyper-technical arguments in an apparent attempt to avoid having the actions of their clients subject to the light of day.”

In the reply filed on behalf of the county and TreeTops, it is argued that Rule 57 deals more with zoning concerns, while Rule 106(a)(4) concerns procedural requirements, making a review under the latter rule appropriate.

The response also alleges that, since Darling made claims under both Rule 106(a)(4) and Rule 57, an additional rule, Rule 16, is also applicable and that, though Darling is representing himself in the matter, he is still a professional attorney and subject to the responsibility and understanding of the procedural requirements of Rule 106.

If the summary judgement is granted, it would leave only the declaratory judgement portion of the suit remaining.

If not, Todd Starr previously said the county will keep preparing for trial, which he said has been set for late March of 2011.

Darling initially filed the a complaint for declaratory judgement or, in the alternative, for a review of the BoCC and the Planning Commission under Rule 106(4) last fall, but was fought on the grounds that Darling incorrectly identified the BoCC.

The defendants’ motion to dismiss was denied on March 22 and Darling was granted the opportunity to file an amended complaint. That amended complaint was filed on March 25.

Specifically, Darling alleges a series of procedural and policy errors, oversights and omissions linked to approval of the TreeTops development agreement and the county’s adoption of it’s Urban Services Area boundary and the updated Future Land Use Map found in the county’s 2001 community plan.

The main issues, according to Darling, are: that granting TreeTops 20-year vested property rights was wrong and illegal per Colorado statute; that county planning staff and the commissioners followed the wrong process for the TreeTops’ planned unit development approval; and that the commissioners approving a permanent zoning change on the TreeTops property — from “Agricultural Estate” to “Residential” — did not follow the appropriate process.

The TreeTops of Pagosa is located on Piedra Road about 3.7 miles north of U.S. 160.

Darling owns 3.63 acres in the vicinity of the TreeTops property.

According to Archuleta County assessor’s data, Darling’s property is located to the south of the TreeTops parcels, but is separated from TreeTops by a 20-acre tract owned by Christopher Bancroft.

randi@pagosasun.com