Acquired by El Paso County from the Forest Service in September 1999, the 240-acre Black Forest Regional Park is generally hailed as the crown jewel of the county park system.
County Parks Director Barbara Nugent characterizes the park as a thickly forested pocket of tranquility and a haven from urban noise, traffic and hassles.
In the 19 months since the county took possession, however, the park has been an ongoing source of legal wrangling as growth and preservation interests clash over the park's future.
Directly to the north of the park, on the site of the former Robison Ranch, developer Dan Potter wants to build 160 luxury homes on an 800-acre subdivision he's named Cathedral Pines.
Potter's plan has excited considerable ire among thousands of Black Forest residents because he wants to build a road through the heretofore pristine park up to his development. His plan is to extend Milam Road northward from where it presently terminates at Shoup Road, which runs east and west along the park's southern edge.
Black Forest community members opposed to that road through the park formed a nonprofit group called Friends of Black Forest Park. In addition to collecting 1,200 signatures opposing the road, the group launched a series of legal actions that have brought the project to a standstill -- for the present.
The conflict, however, is complicated. For one, Potter's would-be road has the backing of El Paso County planners, in no small part due to Potter's offer to donate 210 acres of his project property to Black Forest Park if the county gives his road a thumbs-up.
County planner Ken Rowberg and county traffic engineer John McCarty insist, however, that the county wants Milam extended because doing so would accord with the Major Transportation Corridors Plan. That 1987 planning document envisions a network of north-south and east-west thoroughfares in the Black Forest area to accommodate transportation needs created by development in coming decades.
The document envisions Milam Road eventually extended southward to Union Boulevard and northward to Hodgen, a busy east-west arterial that will eventually connect with Baptist Road -- an even larger arterial that will eventually extend from I-25 on the west and to Highway 24 on the east.
County officials say Milam could eventually become a four-lane throughway through the park with speed limits of 50 mph.
Opponents argue that the road would destroy the character of the park. Rich West, whose property abuts the park to the west, said: "Potter is looking for a private access through a nice, forested area to make his high-dollar houses higher dollar."
Opponents also argue that the road is neither needed nor justified because Potter's property already has three access roads (Holmes, Tahosa and Vessey) that could easily handle the traffic created by 160 new homes.
A traffic study contracted by Potter determined that, in the absence of the Milam extension, the peak traffic on those roads would range from one car per 55 seconds (Holmes) to one car per 188 seconds (Vessey).
Tiers of muddlement
The battle over the park is presently gridlocked in a complicated tangle of conflicting legalities, claims, court maneuverings and reasoning.
Potter and county planners hold, for example, that the Milam extension is all but mandated by the 1987 Corridors Plan.
"I'm merely complying with county documents that have been around for 14 years," Potter said in an interview. "Yes, the road serves my interests, but I can tell you this: even if I didn't want the road, the county would make me put it in."
Rowberg and McCarty agree that the Corridor Plan mandates the Milam extension, but assistant director of county planning Carl Schueler notes that the Corridors Plan is an advisory, not a binding document. "Frankly," he said, "the Corridor Plan is outdated in a number of ways, though it's still used as a planning tool."
What's more, the Corridor Plan conflicts with the Black Forest Preservation Plan, another advisory, non-binding master-planning document adopted by the county in 1974.
The Preservation Plan declared it county policy to discourage and minimize construction of traffic thoroughfares within the 90-square-mile timbered area that gives Black Forest its name.
And that gridlock of cross-purposes is only one of several layers of legal and public policy entangling the present conflict.
Lawyers for Friends of Black Forest Park argue that a federal statute called the Sisk Act prohibits the county from allowing a road through the park. That statute clearly declares that lands conveyed to a county by the U.S. Forest Service -- as was the case of Black Forest Park in 1999 -- may be used only for the purposes for which they were being used prior to conveyance.
Friends of Black Forest Park and its lawyers argue that, because the park was being used as a regional park at the time of conveyance, it must continue to be used only for regional park uses.
Potter and county attorney Mike Lucas counter that interpretation by noting that the Sisk Act also contains language allowing for "local government usage." "We believe that a county road constitutes local government usage," Lucas said in an interview this week.
On March 27, Friends of Black Forest Park attorney Ken Sparks filed a lawsuit asking the court to rule on the Sisk Act issue. Attorneys for both sides say it will be 6 to 12 months before a ruling is handed down.
When, despite the unresolved suit, the county pressed forward with plans at the April 23 Planning Commission meeting to review the Cathedral Pines development request, which would include a yes or no vote on the Milam extension site, Sparks obtained a restraining order against any vote on the road. He has since filed for a permanent injunction against approval actions by the county until the courts rule on the Sisk Act suit.
Complicating the matter further is the fact that Potter claims a provision in a 1921 deed on the Robison Ranch property gives him 30 feet of right-of-way for road construction along the route of an imaginary boundary called a section line.
The Milam Road extension would run northward along that boundary line, and Potter holds that the 1921 deed provision takes precedence over any Sisk Act prohibition, even if the court deems such a prohibition to exist. To make his point to that effect, on March 2 he bulldozed a swath northward into the park along that section line, cutting down at least eight trees, some of them 80 years old and 60 feet high.
Potter claims he informed county officials of his intentions, but Lucas claims he didn't. Upon learning of Potter's act, Lucas ordered the bulldozing and tree-cutting to stop.
Potter, meanwhile, remains defiant. "I cut down those trees to make a point to the landowners suing the county that I have a road reservation through the park, and that I have the right to enforce it and fully intend to do so," he said. "I'll either build that road along the section line, or I'll build it through the park, as with my original plan. Either way, the road will get built, no matter who likes it or not."
According to Potter, critics of his road are "a small group of anti-growth disgruntleds who are using the road as an excuse to stop development."
Friends of Black Forest Park, however, insist that their opposition is solely to putting a road through the park. "We have no quarrel with Potter's development," said Friends spokesperson and nearby resident Gary Shinderle, "as long as he sticks to the access roads already in existence and leaves the park development-free."
The next meeting of the Parks Advisory Board, which has the power to decide the location of Potter's proposed road and recommend approval to the Board of County Commissioners, will be on Tuesday, May 8.
The next meeting of the BOCC, which has power to approve or nix the project in its entirety, will be on May 24.
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