Bob Cole, longtime attorney for the Town of Pagosa Springs, sounded just a bit frustrated at yesterday's Town Council meeting, Thursday, September 27.
He'd spent a number of billable hours trying to assemble a "Stipulated Resolution" for the Council's approval — working together with the Walmart legal team and with local Walmart opponents Vivian and Steve Rader — and it seemed pretty clear, from his positive tone of voice, that at the beginning of the discussion Mr. Cole thought he had a stipulated agreement "in the bag."
Mr. Cole was addressing the Council via a speaker phone set on the dais in front of mayor Ross Aragon.
"This is a stipulated order that we are asking the Council to adopt, by resolution. All of the interested persons have submitted signatures and have agreed to the terms of the order. It just really sets out the procedures to guide the appeal, and lets the parties know exactly what their procedures are going to be. I could go into the details of it if you'd like, but it was in your [Council information packet]. I don't want to belabor that, if there aren't any questions about the specific elements."
Mayor Aragon then quietly asked the Council is anyone had questions for Mr. Cole.
I'm not sure if the Council members could feel tension in the air. I could feel it... but then, I had been handed an advance copy of the statement Vivian Rader was going to read to the Council very shortly.
Indeed, the Raders — who had filed the appeal in question — had signed a draft copy of the stipulated resolution mentioned by Mr. Cole. But the resolution now in the hands of the Town Council was not the same draft... it was a slightly revised version. Very slightly revised.
For some reason, however, this revised version had Vivian and Steve Rader's notarized signatures attached to it... even though they had not signed it.
By the end of the hour-long discussion, the Council had voted to remove the Raders' signature page from the document they'd been given by Bob Cole, and had voted to strike the word "Stipulated" from the title of Resolution 2012-15... which left some of us in the audience wondering what, if anything, the Council had accomplished.
But let's go back to the beginning of the discussion.
"We have a few people signed up for public comments in this matter," noted Town planner James Dickhoff, the person who had shepherded the Walmart design approval process through numerous meetings, phone calls and hearings over the past spring and summer. "If you'd like to accept some comments from Vivian or Steve Rader... and we have a few others signed up to make comments."
"Well, this is the time to do it," asserted mayor Aragon. "Ms. Rader?"
Vivian Rader stepped up to the microphone, holding a prepared statement in her hand.
"Steve and I were informed by an email from Mr. Cole that if we had any problems with this, we could either inform Town Council ahead of time, or appear here today at this meeting to express any concerns. And that's why we are here today. We have some affidavits sworn and subscribed, attached to this statement, but I'll just read the cover page..."
The statement noted that Mr. and Ms. Rader had filed an appeal, on August 31, concerning the Walmart approval process.
"...We followed the rules for our remedy as expressed in the Town's adopted Land Use and Development Code (LUDC) by timely appealing...
"...The LUDC is void of the structure for such an appeal, as to rules, procedures, timelines, etc..."
The Raders own a 10-acre horse property at the corner of E. McCabe Street and Bennett Court, overlooking the Aspen Village subdivision where Walmart is proposing to built its 92,000 square-foot discount store. They have been perhaps the preeminent critics of the controversial development project. Ms. Rader has consistently appeared at recent meetings of the Town Planning Commission, Town Council and Board of County Commissioners, with well-researched questions about the approval process... and about the seeming lack of regard for existing residential property owners in the area who will soon, if Walmart has their way, be staring out their window at a busy loading dock on the backside of a big concrete box... a box with the footprint of two football fields.
Three members of the Town Planning Commission — Kathie Lattin, Cameron Parker and Natalie Woodruff — had voted on August 21 to approve the development plan presented by the Walmart Corporation for a site at the west end of Aspen Village, across from the Pagosa Springs Golf Course and centrally located in the commercial heart of Pagosa Springs. Ten days later, the Raders paid a $250 fee and filed an official appeal of that Planning Commission decision, as provided for in the Town's Land Use and Development Code (LUDC).
Unfortunately, although the LUDC expressly allows appeals of Planning Commission decisions, the actual process by which an appeal is to be handled — "the rules, procedures, timelines, etc" — are sorely lacking in the LUDC. One might almost think the Town had never expected anyone to actually file an appeal of a design approval.
The Town leadership called upon the person they normally call upon when they get into a legal "situation"... attorney Bob Cole, of Denver law firm Collins, Cockrel & Cole... the same law firm, incidentally, used by the Pagosa Area Water and Sanitation District (PAWSD) and by the San Juan Water Conservancy District (SJWCD). Since the LUDC does not specify the exact process for handling an appeal of a design approval — and since such an appeal had already been filed, on August 31 — one might expect that Mr. Cole would want to negotiate a mutually acceptable process, so he wouldn't need to worry about an additional legal challenge by the Raders added on top of their design approval appeal.
The goal, from the Town's perspective, has been to keep this Walmart project moving forward. Lord knows, we need the jobs. And the cheap merchandise. And the sales tax revenues.
One way to keep an opponent from objecting to your legal resolution, of course, is to make sure in advance that your opponent fully approves of the resolution. Such a resolution, which meets the approval of all involved parties, is commonly referred to as a "stipulated resolution." Mr. Cole had apparently negotiated a hearing process to which all three parties — the Town, the Raders, and Walmart — could agree. I'm not sure how much time Mr. Cole spent writing and negotiating this agreement — or how much he had billed the Town government in legal fees — but a couple of days ago, he had managed to get Vivian and Steve Rader to apply their notarized signatures to a draft copy of the resolution.
The final version of the draft resolution needed two details added to it: it needed an official "Town Resolution" number — Resolution 2012-15 — and it needed to include the address of the hearing location, which in this case was to be the Ross Aragon Community Center, 451 Hot Springs Boulevard. The hearing was to be conducted on October 16 at 12 noon.
Ms. Rader continued reading her statement, and arrived at item number 7.
"On Tuesday, September 25, 2012, the Raders became aware that attorney Cole had removed the Raders' notarized signatures from the document the Raders had quickly notarized on [September 18] ... had then placed our notarized signatures as attached to a different document we had never seen or approved... and had emailed 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 and fair dealing..."
Read Part Two...