Signatures, as a Moving Target, Part Two
Bill Hudson | 10/1/12

Read Part One

As we've discussed in other Daily Post articles, it appears that the Walmart Corporation has been actively planning to place a "Big Box" store in Pagosa Springs since at least 2008 — and possibly since 2005, when a company named Aspen Village Investments took possession of about 60 residential parcels in the newly-planned Aspen Village subdivision at a cost of about $1.5 million.

Questions about that particular location have arisen recently, however — ever since Walmart representative Josh Phair announced a planned 92,000 square-foot store last January at a Town Council meeting. The questions have centered on the fact that much of the property surrounding the proposed store is zoned "Residential"  — and a few key opponents have been quite vocal in asking if Walmart ought to be planning their proposed discount store in a different location within the community.  To be more precise, a few key opponents have asked if, in fact, Walmart is legally forbidden, by the Town's Land Use and Development Code (LUDC), from building a 92,000 square-foot store in the midst of a residential area.

While it's true that many realtors and land developers have long understood that Pagosa needs to develop into a thriving suburban "recreational retirement wonderland" with hundreds of subdivisions and dozens of large retail complexes within easy driving distance, the rest of us have been lagging behind somewhat.  Our shops and restaurants have stayed, for the most part, quaint and “small town” looking.  Our sidewalks have remained cracked and broken, or non-existent.  Our hotel rooms aren't exactly luxury suites.  We work at jobs paying $8 an hour. 

And we sorta like it that way.

For many of us, Pagosa's charm comes from the lack of hustle-bustle, the lack of skyscrapers, the sunny but mild weather, and with what visitors experience as a certain, undefinable “friendliness.”

How does a Town government preserve that sense of “friendliness” in the face of impending, faceless, large-scale development?  Can the planning department of a small, economically-challenged rural town create regulations that will protect its community’s character? From those concerns came a new Land Use and Development Code (LUDC) for the Town of Pagosa Springs. 

And since last January, it's been that same LUDC against which the Walmart Corporation has been waging its battle.  The Town of Pagosa Springs LUDC, it seems, was written to purposely encourage a type of town somewhat different than what Walmart had been imagining. Fortunately for Walmart, the Town government is led by a number of visionary, elected or appointed representatives who believe they can ignore certain minor details written into the LUDC, and get this discount store off the ground.

Unfortunately for Walmart, they were planning their store directly in between a (currently beautiful) view of the northern San Juan Mountains and a 10-acre residential property occupied by Vivian and Steve Rader.

Following the initial testimony by Vivian and Steve Rader at the September 27 Town Council Meeting — wherein Town attorney Bob Cole was accused of applying the Rader's signatures to a document the Raders had never seen — mayor Ross Aragon asked attorney Cole to respond to the accusation. 

Mr. Cole was attending the September 27 meeting via speaker phone; his voice seemed to come from somewhere near mayor Aragon's left hand.

"Okay, sir, go ahead," said mayor Aragon, addressing the speaker phone.

"You have to understand that we had been working what I thought was very amicably with the Raders, in preparing the stipulated procedural order... and I'm quite surprised at the hyperbole of this presentation. The stipulated order that was prepared, for which the Raders did submit signatures, was identical to what was put in your packet — except for two changes.  There were two subsequent revisions.  There was the addition of the 'Resolution Number 2012-15' where before there had been 'Resolution Number 2012- and then a blank'.

"And then there was also the correction of the location of the hearing, that appears in this resolution, changed from the address of the Town Hall — to revise that, to reflect that the hearing was going to be held at the Community Center.  Those changes, once they were made, were sent to the Raders — and it was noted that, if they didn't agree with those, that they could withdraw their consents, and/or they could appear today and indicate that they did not agree with those changes. 

"So there's been no fraud attempted; there's been no fraud perpetuated.  There's been, at this point, only a lot of hyperbole from a party that we thought was working cooperatively to provide a reasonable outline and structure to this hearing. For all the objections that I've heard [from the Raders] I haven't heard any objection to those two changes.  And if the Raders didn't agree to the procedures that were set out in the stipulated procedural order, they should have noted that before they did submit their signatures."

Attorney Cole then offered the Town Council a bit of advice.

"I would suggest that if they want to pull their signatures at this [document] at this point, you should allow that — and then you should continue to consider what procedural orders should be entered, so you can have some order and structure to this appeal."

The appeal to which attorney Cole was referring is a planned hearing deriving from the Raders' objections to the Town Planning Commission's design review decision of August 31, when the Planning Commission approved the location and design of the proposed Walmart store.  It appeared to me, sitting in the audience on September 27, that all concerned parties — the Town, Walmart and the Raders — desired some additional structure for that impending hearing.  And it appeared that "Resolution Number 2012-15" would provide that structure. 

Copies of the resolution were sitting in front of each of the Town Council members — a slightly revised resolution which the Raders had — by Mr. Cole's own admission — never actually signed. 

But the revised resolution had the Raders' signatures attached to it.

It appeared to me, sitting in the meeting audience on September 27, that attorney Cole had taken a slight lawyerly shortcut.  He had apparently assumed that the Raders would have no problem with the location of the impending hearing being changed from Town Hall to the nearby building at the north end of the Town Hall parking lot: the Community Center.  And he apparently assumed that, if the Raders did have a problem with the location change, that the Raders would withdraw their signatures from the document at some point before the Town Council approved the "Stipulated Agreement."

Seemingly, the only problem that could have arisen for Mr. Cole would have been if the Raders had not received his email correspondence — for some reason — and if the Raders also had not appeared before the Town Council on September 27. If that had happened, the Town Council might have believed that the Raders had in fact signed the revised "Resolution 2012-15".  And the Council might have been, in that case, party to fraud.

It now appears, however, that the problem is somewhat more substantial.  The Raders did receive attorney Cole's email, but have chosen to accuse Mr. Cole of fraudulently placing their signatures to a document that they had not, in fact, signed. Whether the Walmart LUDC appeals hearing can go ahead in such a situation, we are left to wonder.

Read Part Three...


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