A group of Mid-Valley citizens has filed an intent to appeal a judge’s recent decision that upholds a June 2017 vote by the Eagle Board of County Commissioners that approved the massive Tree Farm development near El Jebel.
On Jan. 10, Eagle County District Court Judge Kenneth Plotz denied a suit brought in October 2017 by Save Mid Valley, a small group formed, according to founder Ken Ransford, “to try to get citizen input on projects like the Tree Farm and the Pan and Fork parcel.”
Membership consists primarily of Ransford himself, Basalt Mayor Jacque Whitsitt, Cathy Click, who used to co-own Café Bernard in Basalt, Mike McVoy and former Pitkin County Commissioner Joe Edwards.
The Eagle BOCC voted 2-1 in favor of the 42.9-acre Tree Farm project, which calls for 514,000 square feet of overall development consisting of 340 residences covering 380,000 square feet and nearly 135,000 square feet of commercial space to be located on Highway 82 opposite Willits Town Center in unincorporated Eagle County. Included would be a 60,000-square-foot hotel. The proposal includes more than 20 acres of open space.
The Eagle BOCC’s vote came after the county’s own Roaring Fork Valley Regional Planning Commission voted against the Tree Farm.
The Basalt Town Council, likewise, voted against the Tree Farm, though that governmental entity did not and does not have any jurisdiction in the matter.
Save Mid Valley’s suit contended that the Eagle BOCC’s June 2017 vote violated Eagle County’s own development codes and that the BOCC’s decision to approve the project was “arbitrary and capricious.”
Specifically, the suit stated, among other things, that the decision by the Eagle BOCC violated Rule 106 of the Colorado Rules of Civil Procedure.
“There are two major issues,” Tim Whitsitt, an attorney who represents Save Mid Valley, said in January 2018. “First, was there any factual basis for the decision made by the Eagle County Commission? That is open to interpretation based upon the evidence entered into the record during the course of the BOCC public hearings. Second, is the question of whether they exceeded their jurisdiction. Essentially, that means, did they violate the terms of their own organic zoning regulations?”
“Basically, Rule 106 gives citizens the right to ask a judge to overturn a decision by a governmental or quasi-government entity when that board has not followed the law or has abused its discretion,” Ransford said. “We feel that the Eagle County commissioners exceeded their jurisdiction.”
Specifically, Ransford said he is of the opinion that there has been a significant drop in affordable housing units since the Tree Farm plan was first proposed.
“We are dismayed at the drastic reduction in the number of residences priced below the area median income guidelines.” he said. “I’m not certain of the exact numbers. But as of now there are only 45 compared to something like 158 units required as a condition of sketch plan approval in 2009.”
Additionally, Ransford wrote in a press release last year that “The preliminary plan does not conform to the sketch plan that was approved in 2009.”
Plotz disagreed, ruling that there was not sufficient cause to overturn the Eagle BOCC’s decision to approve the Tree Farm.
Save Mid Valley had 49 days to appeal Plotz’s ruling.
“We have filed an intent to appeal with the Colorado Court of Appeals,” Ransford said Tuesday. “We will file the formal appeal before the deadline.”
The structural basis of that appeal, according to Ransford, will essentially be the same as the original lawsuit.
“We feel the June 2017 decision by the Eagle County commissioners to approve the Tree Farm development was so far off the county’s own development standards as to be arbitrary and capricious,” Ransford said.
The powers that be behind the Tree Farm development, not surprisingly, have a far different view.
David Marrs is the chief financial officer for Geronimo Ventures, LLC, the company behind the Tree Farm development.
He said he is, though disappointed, not exactly stunned by Save Mid Valley’s decision to appeal Plotz’s decision.
“We have not seen or been served with any notice or any filings for an appeal as of this writing,” Marrs said. “We knew they had 49 days to file an appeal. Not sure what an ‘intent to appeal’ means — maybe a Tweet on Twitter? We are not surprised if that is their decision.”
Marrs considers the two main points of Save Mid Valley’s original suit — and impending appeal — to be misguided.
“The court’s ruling on these two points was quite clear,” he said. “First, contrary to plaintiff’s asserted premise that the board exceeded its authority, the Board of County Commissioners found that the affordable housing mitigation proposed by the developer did comply with affordable housing mitigation requirements required by the county. Second, the board did not exceed its authority by doing so.”
Neither the original suit nor the impending appeal have had an adverse impact on the Tree Farm’s development application process.
“The suit had no effect [on the process],” Marrs said. “We filed the final plat application — Phase I — with Eagle County last [Monday], as it took us almost six months to finalize the application and engineering materials. We did and will continue to prepare for construction in April 2019.”
Marrs refused to say how much Geronimo Ventures has spent on legal fees responding to Save Mid Valley’s original suit.
“A six pack of PBR on sale at Four Dogs and a full year’s tuition at a Colorado State University,” he quipped when asked.
That said, Marrs said that Geronimo Ventures has thus far sunk some big-time bucks into the Tree Farm project.
“We are up to more than $2.5 million dollars, and that’s just the soft costs,” Marrs said last spring. “That’s just going through the process. The engineering and the consulting fees. We have a lot more money that’s already into the project, like the road, which is another $2 million. To date, we’re up to $5 million.
“Unfortunately, the law allows citizens to sue with no consequences for their actions,” Marrs added.
According to Ransford, the goal of his group’s legal efforts is to force the Tree Farm to begin the development application process anew.