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Lawsuit against town withdrawn

Staff Writer

The threat of a lawsuit no longer looms over the Town of Pagosa Springs, its town manager, clerk, planner, mayor and most of its individual town council members, according to an announcement at the Feb. 21 town council meeting.

“Steven and Vivian Rader have withdrawn their suit,” town manager David Mitchem reported. “They’ve asked for a dismissal of the suit against the town, and the town council accepts it. So, at their request, the court will take action to dismiss that suit.”

“On that subject,” council member Tracy Bunning asked, “in the past we had discussed trying to recover legal fees associated with that suit; is that still part of the plan?”

In November 2012, town council approved a budget amendment to take $30,000 out of the general fund reserves and add it to the Attorney/Legal line item to cover additional costs accrued because of the Rader lawsuit, among other legal issues.

“The answer is, ‘I don’t know,’” Mitchem responded. “I think we need to talk with legal counsel about that. If we had gone through the court process and the judge had dismissed the suit, that was a possibility. The fact that the party suing us has asked for a dismissal may take that off the table.”

The SUN later received an e-mail from the Raders stating, “Clarification: We did not file a motion with the federal court. We filed a notice pursuant to Federal Rules of Civil Procedure Rule 41(a)(1)(A) and stressed same was filed without prejudice, preserving our right to re-file.

“Please do not misinform your readers or validate a possible negligent misrepresentation of the facts in the case should such have been proffered by a town official or agent if he/she actually stated we had asked the federal court to dismiss the case.”

Town attorney Bob Cole clarified that it was simply a matter of semantics, while the end result is basically the same.

“The rules allow a plaintiff, without needing consent from the court,” Cole explained, “to dismiss a lawsuit if the defendants haven’t filed an answer, and that’s what the Raders did. So they don’t have to ask to dismiss. They filed a notice and the case is dismissed.”

Cole went on to say the reason the town had not responded to the Raders’ lawsuit is because it had never been officially served.

In a case where multiple defendants have been named (in their lawsuit the Raders named 17 different defendants, including individual town employees, council members and county commissioners), each one must be served with papers, which can be an expensive process.

However, Cole did admit that the Raders could re-file their suit. “Dismissed without prejudice, which is the terminology for this type of dismissal, means that they could re-file.”

“Yes, they do have that right,” Mitchem confirmed, “based on the document they filed with the court to have it dismissed. At this time, the town has taken no action to pursue our legal costs in the matter, and I would reserve judgment on what happens in the future.”

The Raders’ suit against the town began because of the Wal-Mart issue.

On Aug. 21, the town’s Design Review Board approved Wal-Mart’s Major Design Review permit application, clearing the way for the company to continue the process of obtaining a building permit.

On Aug. 31 the Raders, even though they are not town residents, filed an appeal of the DRB decision, claiming to be “aggrieved persons of interest,” as described by the town’s Land Use and Development Code, because their property is within sight of the proposed Wal-Mart site at the corner of Alpha Drive and Aspen Village Drive.

At the Sept. 27 town council meeting, where Resolution 2012-15 was passed setting the time, place and procedures for the appeal hearing, Steve and Vivian Rader accused the town attorney, manager, planner, clerk, mayor and council of conspiring to violate their rights to due process by removing their notarized signature from one document and placing it on another.

As it turned out, after the Raders agreed to the content of the resolution and had placed their notarized signatures upon it, the town attorney did, in fact, change the resolution, but the only changes he made were to the resolution number (adding the “15”) and the address where the hearing would take place (it was moved from Town Hall to the Ross Aragon Community Center, where there is more space). No changes were made to the appeal hearing procedures themselves, which the Raders had agreed to.

On Oct. 23, the Raders did not appear at their appeal hearing, deciding instead to travel to Denver on Oct. 22 to file an “Emergency Motion for Writ of Prohibition” in U.S. District Court to try to stop the appeal hearing. While the Honorable Marcia S. Krieger denied the motion for a restraining order, the Raders’ complaint also contained several other requests.

When contacted afterwards, the Raders stated, “For the record: our issues ceased to be about Wal-Mart a very long time ago. We only allow people to play games with our God-given rights and their oaths to protect same briefly before taking action for meaningful remedy collaterally.”

In their U.S. District Court complaint against the town, the Raders, referring to themselves in the third person, stated, “The Raders have been damaged financially, socially, emotionally, have lost time and resources in a pursuit to protect their rights, property and quality of life-endeavors rendered meaningless by the acts of officials, and have lost standing with family and friends for representations made about them by above-named defendants and as published in the local paper.”

They went on to list a variety of “prayers for relief,” including the above mentioned restraining order, as well as, “Compensatory relief for deprivations of rights and violations of oaths in amount not less than $2,0250,000 [sic]” and “Punitive damages upon officials in an amount not less than $6,750,000.”

While the Raders’ suit has been dismissed, Wal-Mart, in the meantime, continues to move forward with fulfilling the conditions laid out by the Design Review Board, preparing to submit a building permit application.

ed.fincher@pagosasun.com

This story was posted on February 28, 2013.