On Monday the Colorado Supreme Court announced its refusal to consider the county government's appeals to build developer Dan Potter an illegal road through the middle of our Black Forest Regional Park to his planned upscale subdivision north of Colorado Springs.
For nearly three years, county attorney Michael Lucas has fought what has been a contentious battle to build Potter's road to riches. After the district court and then the court of appeals ruled the road violated the federal Sisk Act, Lucas insisted the judges were wrong, wrong, wrong. Acting as an agent for us taxpayers -- who are, after all, Lucas' clients -- and at the urging of the majority of our elected county commissioners, the county attorney ultimately appealed to the Colorado Supreme Court, which became the last judiciary to slap Lucas to the mat.
"Isn't it a sad day when a group of private citizens has to sue the government to get it to follow the law?" asked Gary Schinderle, the spokesman for the group that successfully stopped the road from being built through the park. By Schinderle's estimate, the Friends of the Black Forest spent between $130,000 and $140,000 in legal fees. Schinderle alone has invested hundreds and hundreds of hours battling Potter's county-endorsed plan.
Budget cuts be damned, taxpayers have shelled out at least tens of thousands of dollars and untold government staff time during the nearly three years of litigation. Though the final price tag for legal maneuverings has not been officially tabulated, the county has paid $13,000 in fines for a court stunt gone bad; in addition, the county and the developer will pay out $50,000 in costs to the plaintiffs, according to their lawyer. Lucas can't even estimate the number of hours he and his staff have spent working on the project. "Oh, Lordy, I have no idea," he said.
Two years ago, Lucas was downright cocky insisting that the county had every right to bulldoze through the park. In July 2001, for example, the county attorney rejected the plaintiff's claims that the county was breaking the law. He denounced them, saying, "Anybody who sues the county is menacing -- this would not be considered a friendly piece of litigation and we're not here to play nice. We're going to court and that's great."
This week, a far more docile Lucas weighed in. "Sure I'm disappointed," he said of the court loss, "but they were long odds."
There is no moral to this story because it hasn't ended. The county government is moving forward with an alternative plan. Instead of going through the park, they want to condemn and seize 11 pieces of privately owned property along the park's western edge and build the road to Potter's development along that route instead.
As Lucas explains it, he still has three commissioners who want the road built. (Those elected officials include Chuck Brown, Tom Huffman and Wayne Williams.) Their latest plan to condemn has, not surprisingly, sparked another likely lawsuit.
Of course, the government has the right to condemn and seize private property; however, it's supposed to be for the benefit of the community overall. In this case, the county's motivation appears to be for the sole benefit of Mr. Potter's wallet. In fact, the county has entered into an agreement with Potter in which he has agreed to privately pay for much -- but not all -- of the related condemnation fees. Taxpayers will pick up the remainder of the tab, and to help us sort through the mess, the county has hired a $250-per-hour partner at the prestigious Denver law firm of Holme Roberts & Owen.
Ray Miller, whose property is one of those facing condemnation, is incredulous. After all, he and others point out, Potter's proposed development already has three other points of access.
"My question is, Why do they feel so compelled to push this road through?" Miller asked. "They wanted to do something that we can now say is illegal. The Supreme Court backed us up, so now they're saying, 'We'll show you; you won't let us do something illegal so we'll condemn your property.'
"Well, they've got the power, but what is their motivation? Why do they want Dan Potter to make a bunch of money? What's in it for them?"
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