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Wal-Mart: Appeal without appellants

By Ed Fincher

Steve and Vivian Rader, having filed an appeal to The Pagosa Springs Town Council requesting it overturn the Design Review Board’s Aug. 21 decision to approve Wal-Mart’s application, were conspicuously absent from their own hearing held at noon on Oct. 23 in the Ross Aragon Community Center.

Town staff had made the decision to conduct the appeal in the RACC instead of Town Hall in anticipation of the large crowd of angry protestors that usually shows up for Wal-Mart related matters; however, more than half of the seats were empty, most notably the ones at the table set up with a microphone for the Raders to present their argument.

When contacted after the hearing, the Raders stated, “For the record: our issues ceased to be about Wal-Mart a very long time ago.” At the Sept. 25 town council meeting, it became obvious the Raders had shifted the focus of their anger from Wal-Mart to the Town of Pagosa Springs when they provoked a heated debate with town attorney Bob Cole.

At that meeting Vivian Rader said, “Attorney Cole had removed the Raders’ notarized signatures from the document the Raders had quickly notarized on Tuesday, Sept. 18, 2012, and then placed our notarized signatures as attached to a different document we had never seen or approved, and e-mailed the same to town clerk April Hessman with direction to submit to town council today, along with a preface by him stating we had signed that document. We are defrauded of due process, of our signatures, and of good faith in fair dealing.”

Cole, participating via telephone, responded, “We had been working, what I thought was very amicably, with the Raders in preparing this stipulated procedure order and am quite surprised by the hyperbole of this presentation.”

He went on to explain that there were only two changes made to the document the Raders had signed. The original document had the resolution number as 2012- followed by a blank space, so Cole added the number “15” into the blank space. He also corrected the address for where the appeal hearing will take place from Town Hall to the Ross Aragon Community Center.

The Raders made it clear that their actions would continue when, on Oct. 23, they snubbed the town council by not attending the appeal hearing they themselves had requested. Instead, they had traveled to Denver to file a suit against the Town of Pagosa Springs in federal court.

“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,” the Raders state in an e-mail to The SUN. “Please see the attachment for more insight.”

Attached to the e-mail is an “Emergency Motion for Writ of Prohibition” filed at 12:45 on Oct. 22 with the U.S. District Court for the District of Colorado listing Steven R. Rader, et al., as plaintiffs and the Town of Pagosa Springs, et al., as defendants.

In this motion, the Raders claim, among other things, the town had unilaterally scheduled the appeal hearing, had retroactively approved special rules and procedures upon the Raders and their appeal, and had denied them the right to speak at the Sept. 25 meeting.

After providing the district court with the fax number for both the town and the town’s attorney, “The Raders respectfully request an EMERGENCY WRIT OF PROHIBITION barring an Unconstitutional appeal hearing set by town agents at noon on October 23, 2012 as a matter of substantial justice, not delay, and to secure to the Raders the fundamental right to be meaningfully heard at a meaningfully [sic] time in a meaningful manner.”

However, in a decision dated Oct. 23, the Honorable Marcia S. Krieger denied the Raders’ motion and allowed the appeal hearing to continue. Among other arguments, Krieger explained, “The record here does not clearly indicate how long the Plaintiffs have known of the October 23, 2012 hearing date, and thus, does not clearly indicate the extent to which the Plaintiffs were able to give notice to the Defendants of their intention to seek injunctive relief.”

As an aside, it is ironic, after all the claims the Raders have made against the town about improper notification and denial of due process, their motion has been denied because they attempted to file it without notifying the town of their intent.

In their e-mail the Raders continue to accuse town staff of wrongdoing and ill-intent, “(Town clerk) April Hessman had called Vivian yesterday afternoon; Vivian informed April we were in Denver filing the federal suit, so no, we had not received any emails from her that day regarding the appeal hearing agenda. If defendant Cole and defendant town today pretended not to know why we were not in attendance for what was to be our appeal, you now have the documentation that’s exactly what such a behavior was: a pretense.”

Mayor Ross Aragon began the Oct. 23 hearing by having Cole describe the structure of the meeting, then asked, “I think right now we are waiting for the appellants, aren’t we?”

“Yes,” Cole agreed. “We have had some indication that they may not be available today, but we haven’t actually had any direct communication with them, and have not received any requests that the town continue this matter to a later time or date. I have placed a call to Mr. and Mrs. Rader and indicated to them that if it would assist them in their appearance, we have available a conference room speaker phone.”

In the end, town council continued with the appeal proceedings despite the Raders’ absence. The council was given a packet containing briefs provided earlier by the Raders, Aragon asked if anyone in the audience had been appointed to speak on behalf of the Raders to give their 30-minute opening argument, town planner James Dickhoff used his 30-minute rebuttal time to refute the allegations in the Raders’ briefs, the audience was again polled to see if anyone was authorized by the Raders to give a surrebuttal, and then the matter was opened up for discussion by town council members.

“Mr. Mayor, I think this is a fairly simple matter to deliberate on,” council member Don Volger began. “We have received extensive documentation from the appellant, received a lot of information concerning the actions that were taken by town staff and the Design Review Board, all documented and distributed in the appropriate manner, and we have heard testimony from Mr. Dickhoff concerning those actions.

“In my mind it seems like many of the allegations that were made were unsubstantiated, and any of the appellants’ questions, concerns or problems were addressed in the documentation we have received. Either we are going to discount all testimony that has been provided, or we’re going to accept it, and being there is no one here to contest that, the deliberations are pretty simple.”

“Staff has answered all of the appellants’ accusations quite thoroughly,” council member Darrell Cotton agreed, “so I am ready to move forward.”

At that point, Aragon asked if anyone else on the council would like to comment, specifically offering the microphone to council member David Schanzenbaker, who merely shook his head and declined the offer.

Volger then made a motion to deny the appeal filed by the Raders and uphold the design review board’s approval of the Wal-Mart application. Cotton asked if Volger would add to his motion a directive to town staff to move ahead with granting the necessary documents to complete the Wal-Mart project. When Volger added that directive to his motion, Cotton seconded it and the council voted unanimously in favor.

When Aragon asked if there were any “nay” votes, and looked specifically to Schanzenbaker for confirmation, Cole suggested for the record that each council member be polled individually, and each member confirmed an “aye” vote for denying the Rader appeal and supporting the Wal-Mart permitting process.

After the meeting, Volger expressed his frustration concerning the behavior of the Raders. “We gave them extra time, we bent over backwards, and I’m sorry, but I just don’t have a lot of patience.”

This story was posted on November 14, 2012.