Judge to review executive session recording Public meeting tonight on 5th Street bridge


As the Town of Pagosa Springs prepares for its public meeting at 5 p.m. today to discuss the prospective bridge over the San Juan River at 5th Street and the planned mixed-use development the bridge would directly connect to U.S. 160, it now must also respond to a court order for judicial review of town council’s executive session conducted Sept. 17, 2015, concerning the development.

Public meeting tonight

Mayor Don Volger and Town Manager Greg Schulte told SUN staff on March 14 that the meeting this evening will include a presentation on the development concept, as well as details on the currently estimated cost of the prospective bridge and related infrastructure.

The meeting will be attended by members of the town council and Matt Mess, a representative of the developer. Public comments also will be invited. The meeting will be held in the south conference room of the Ross Aragon Community Center.

Mees advised The SUN that he anticipates having an architect’s rendering of the project area for display during the meeting; he advised the drawing would still be in preparation at the time The SUN is printed and, accordingly, would not be available for advance publication.

He said that the drawing will show how the development will relate to the adjacent downtown and will help clarify the potential impact of the development and the proposed bridge on traffic flow downtown and on Hot Springs Boulevard.

Mees will be available to answer questions during the meeting regarding the development plan.

Court order

The court order for review of last September’s executive session was issued by 6th Judicial District Court Judge Gregory L. Lyman on March 12.

The ruling came in a suit filed by town resident Bill Hudson last fall against April Hessman, the town clerk and official custodian of its records. The suit charges that the town violated the Colorado Open Meetings Law by allowing participation by the developer in the private session. Hudson is represented in the suit by attorney Matthew H. Roane.

The suit is based on the Colorado Open Meetings Law, which establishes a broad policy that government shall conduct its business in public. However, the law allows a public body including a town to convene “executive” sessions in private for specialized and limited purposes.

Included in the exception are sessions for determining strategy and issuing instructions with regard to negotiations by agents representing the public body in dealings with third parties. The exception protects public agencies from being disadvantaged by premature disclosures affecting their dealings involving financial and commercial matters.

The agenda for town council’s Sept. 17, 2015, meeting noticed an executive session to consider, “Determining Positions Relative to Matters that may be Subject to Negotiations, Developing Strategy for Negotiations, and Instructing Negotiators,” with regard to possible revision of the so-called “Vested Rights Agreement” between the town and the developer originally reached in 2012.

When council convened the executive session, two representatives of Springs Partners LLC, the developer, were allowed to participate although other members of the public were excluded.

Hudson’s later suit contended that the developer was disqualified from participating in the executive session as an “adversary” of the town.

Essentially, the suit contends that even though the developer and the town presumably hope their relationship is mutually beneficial, as parties to a contract, they inherently have adversarial interests. Under the terms of any contract, burdens to one party may be benefits to the other. Willing acceptance by a party of contract burdens does not alter the adversary character of the relationship.

The suit asked for the tape recording of the executive session made in compliance with the Open Meetings Law to be reviewed by the court, and for the ultimate public disclosure of any part of the session found to have violated the law’s provisions.

Recently, Steven J. Dawes, who is representing the town in the suit, filed a motion for summary judgment which essentially asked the court to rule that, under the law and undisputed facts, Hudson’s suit had no possible merit and the executive session had been properly held.

However, Lyman denied Dawes’ motion on March 12 and ordered Hessman to deliver, within seven days, the recording of the portion of the executive session attended by the developer’s representatives to him for review.

In his ruling, Lyman concluded that “grounds exist to support a reasonable belief that the Town Council of Pagosa Springs engaged in substantial discussion of matters” not authorized under the law during the executive session.

The ruling is not a finding that the Open Meetings Law was violated. That will depend on the contents of the recording.

Developments subsequent to the September executive session led up to tonight’s public meeting. Following the executive session challenged in the suit, the town had continuing negotiations with the developer regarding possible amendment of the vested rights agreement.

Then, another executive session planned during council’s regular meeting of Feb. 18 to again consider instructions to negotiators was tabled by a unanimous vote following comments on the development and bridge proposals by several community members. During the same meeting came the announcement by Volger that the town would hold a public meeting this evening regarding the proposed development and bridge.

Schulte told The SUN on March 1 that negotiations regarding the agreement with the developer have been on hold pending the March 17 meeting.