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Lawsuit filed against county, TreeTops

The TreeTops of Pagosa has come under fire again, this time from local attorney William Darling, who filed suit in District Court alleging county staff and the commissioners acted beyond their bounds and with disregard to county regulations and Colorado law during various stages of the project’s planning and approval processes.

In court documents dated Sept. 9, Darling names the board of county commissioners and TreeTops of Pagosa LLC, and alleges a litany of procedural and policy errors, oversights and omissions linked to approval of the TreeTops development agreement and the county’s adoption of its Urban Services Area boundary and the updated Future Land Use Map found in the county’s 2001 community plan.

The main issues, according to Darling, are: that granting TreeTops vested property rights was wrong and illegal per Colorado statute; that county planning staff and the commissioners followed the wrong process for the TreeTops’ planned unit development approval; and that the commissioners approving a permanent zoning change from “Agricultural Estate” to “Residential” did not follow the appropriate process.

According to the county land use code, Agricultural Estate allows for densities of two dwelling units per five acres to two dwelling units per 35 acres. Residential zoning by contrast, allows for one dwelling unit per 8,000 square feet to one dwelling unit per three-acre lot.

“What we’re basically saying is that there is a method of doing land use planning that is prescribed by county law and state law to protect the interests of everyone concerned,” Darling said. “If they want to do a development up there, then they have to do it right.

“We’re not anti-development, but development has to be done in the right way, has to follow the right procedures and has to give everybody due process and they haven’t in this case. We want that property developed in a manner that is consistent with the surrounding area.”

Darling’s concerns regarding consistency and compatibility have long been shared by project opponents who argue that TreeTops — a mixed use project located about three miles north of U.S. 160 on Piedra Road — is too dense as planned. In addition to density concerns, project opponents have also said the project’s residential components coupled with it’s commercial elements will overload Piedra Road, thus making a dangerous arterial even more precarious.

Beyond roads, Darling and other TreeTops opponents cite additional infrastructure concerns as reasons for their dissent.

Specifically, and according to the county land use code, residentially zoned parcels are areas “where adequate services and facilities are available and such densities do not negatively impact the essential character of the district or adjacent districts.”

However, and according to a letter from the Pagosa Area Water and Sanitation District to the county commissioners, with the exception of an open space area, only .185 acres of the 52-acre parcel are within PAWSD’s boundaries for water service only.

That fact seems to conflict with the TreeTops property’s recent designation as a Tier 1 property according to the Urban Services Area and Future Land Use Map projects. Tier 1 properties according to the county’s definition are “readily available for immediate development.”

According to the PAWSD letter, bringing water to the TreeTops parcel will require water modeling and major and costly line extensions and improvements.

With inconsistencies between the county’s approvals and their land use regulations, Darling wants the court to reexamine the county’s approvals with the hopes that a judge will return the property to its original zoning, nullify many planning commission or BoCC decisions, including TreeTops designation as a Tier 1 parcel and void the TreeTops development agreement.

Darling said he anticipates the county will file a response to his suit by Oct. 21.

Archuleta County Attorney Todd Starr would not comment on the case.

“I have no comment on pending litigation,” Starr said.

Will Neder, head of development operations for TreeTops said, “The county worked really hard on all those documents (the Future Land Use Map and Urban Services Area project) to bring the code up and to get a working system. We did exactly what we were asked to do and we don’t think there is any basis to Mr. Darling’s case.”