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Wal-Mart design review decision appealed to town council

By Ed Fincher

Staff Writer

The Wal-Mart major design review application, which was approved by the Pagosa Springs Design Review Board on Aug. 21, has been appealed by Steven and Vivian Rader to the town council, which will listen to the appeal on Oct. 2 at noon in the South Conference Room of the Ross Aragon Community Center.

Even though they are not residents of the town, the Raders claimed to have the standing to appeal the DRB decision because, as property owners within sight of the proposed Wal-Mart store, they are “aggrieved persons of interest.” They filed their appeal on Aug. 31, within 10 days of the DRB decision, and will be required to pay a $250 appeal fee.

The first reason the Raders gave for making their appeal was the DRB “procedure for approval was severely tainted.”

They held up the ownership of Alpha Drive as an example of this. “Archuleta County’s motion to quit claim a road needed for the project appears not to include the portion of road the town believes it has legal right to, because the motion by Commissioner Wadley quit claimed ‘Alpha Drive located in the Alpha Subdivision.’ The quit claim is likely defective or not aligned with what the town expected, because numerous public documents eschew any factual finding the portion of Alpha Drive Wal-Mart needs is ‘in the Alpha Subdivision.’” The Notice of Appeal does not provide, name, or clarify the nature of these “numerous public documents.”

Another example of this “tainted procedure” involved allowing Wal-Mart to have three access points to Alpha Drive. The Raders claim, “There has never been a lawful public process for the town to approve an additional three accesses, which is a separate and distinct issue from Alpha Drove ownership.” They claim the town has encroached on their interest and did not give them “proper notices of any meetings with the propensity to affect our rights of ingress, egress, and the limited accesses to Alpha Drive.”

At a Sept. 6 meeting, town council approved the second reading of ordinance 775, accepting ownership of a portion of Alpha Drive through a quit claim deed from the county, and even though the final decision was unanimous, there was quite a bit of discussion leading up to it concerning the promise to improve the road up to town standards (see related story).

The Raders also complained about, “Requiring public comments be submitted no later than eight days prior to public hearings even though Wal-Mart documents continued to be submitted up until the public hearing.” This was in reference to a recent decision by Town Planner James Dickhoff, who claimed he was having trouble reading the massive amounts of written public comment that would deluge Town Hall before every meeting concerning Wal-Mart.

The second reason the Raders gave for filing their appeal was, “The (DRB) decision was based upon defective information, and false or misleading statements were made which could influence the DRB.”

As an example of a false statement, the Raders claim, “James Dickhoff stated at the third design review hearing that the Army Corp was processing the wetlands permit even though the week prior the Army Corp had WITHDRAWN (emphasis is in the notice of appeal document) the Wal-Mart permit application because Wal-Mart had failed to respond to the Army Corp within the 30-day deadline. The TRUTH was that there was no active permit when James Dickhoff claimed such was being processed.”

The third reason the Raders gave for filing their appeal was, “The DRB failed to enforce mandatory provisions of the LUDC (Land Use and Development Code) and to demand required disclosures necessary to make a fair, not arbitrary or capricious, decision.”

They refer to section 6.11.2(C) of the LUDC, which “requires a lighting plan prior to approval, which in turn requires disclosure of ‘hours of illumination.’”

Vivian Rader said she asked Josh Phair (a representative of Wal-Mart) at an open house if Wal-Mart intended to be open 24 hours per day, but she claimed he refused to answer. The notice of appeal went on to state, “DRB member Cappy White asked the same question at the first and second DRB hearings, and Josh Phair refused to disclose. In fact, at the second DRB hearing, Josh Phair declared that Wal-Mart would not disclose whether it would be lit 24 hours until Wal-Mart was fully approved and built, acting in complete DEFIANCE of the LUDC regarding a matter that clearly will substantially alter the basic character of the area and substantially depart from the original approved plan for Aspen Village.”

The Raders go on to give several more reasons for their appeal of the DRB decision. “The decision approves an incompatible land use causing damages to invested, established area county rural horse-property landowners.

“The DRB abused its discretion by refusing to take steps to mitigate damages and to protect property values of existing real property owners.

“The DRB failed to view the LUDC through the corrective lenses of controlling, higher law of the Constitution which voids any laws repugnant to the Constitution, rendering the DRB decision void ab initio for the LUDC imposing lesser protections of both property values and peaceful enjoyment of life, liberty, and property.”

And finally, “The decision by the DRB conflicts with the Town’s current stated developement goals and objectives (e.g. a Wal-Mart supercenter located uptown will forever prevent town core residents from obtaining its vehemently expressed need for a grocer downtown) and substantially, negatively impacts the Town’s ability to implement its adopted Comprehensive Plan.”

The Raders summed up their appeal by claiming the approval of the Wal-Mart plan damages them and that, “the decision was made while abusing discretion by not requiring Wal-Mart to strictly adhere to the rules in the LUDC, that the decision was made arbitrarily and capriciously in light of the LUDC being prejudicially favorable FOR townsfolk and AGAINST county residents in the area, and that as a whole, the approval decision is manifestly unjust when weighed against the unalienable, substantive rights of the Raders and all others similarly situated.”

Mayor Ross Aragon said, “I want to be positive about this. I just want to keep on insisting that we are going through the process. We are spending a lot of money to insure that we are doing it right, so I don’t think that, legally, we are off course. I have a good feeling about it. My feeling is that we have done what we have to do.”

Aragon went on to express optimism this issue will be resolved and the process will be able to continue.

ed.fincher@pagosasun.com

This story was posted on September 13, 2012.