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TreeTops litigation: a simple phrase

One simple phrase may tank a local attorney’s attempt to sue the Archuleta County Board of County Commissioners and TreeTops of Pagosa, LLC, according to documents filed in district court Monday.

In those documents, Archuleta County Attorney Todd Starr argues that Pagosa Springs attorney William Darling failed to properly enjoin the county in the suit filed Sept. 9 when Darling erroneously listed the commissioners as “the Board of County Commissioners for Archuleta County” rather than “the board of county commissioners of the county of Archuleta,” as prescribed in Colorado statute.

Darling’s suit alleges that county staff and the commissioners acted beyond their bounds and with disregard to county regulations and Colorado law during various stages of TreeTops planning and approval processes.

Specifically, Darling alleges a series 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 20-year 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 on the TreeTops property — from “Agricultural Estate” to “Residential” — did not follow the appropriate process.

Starr’s Monday filing with District Court represented a request for the court to dismiss those claims and the suit in its entirety.

Although Starr said his argument against Darling’s suit was, at this stage, purely technical, he explained Colorado case law as far back as 1894 establishes precedent as to the language a plaintiff must employ to enjoin a county in a suit.

“Clearly the Plaintiffs did not comply with the statute. This failure to follow the law is a death knell to Plaintiff’s complaint,” Starr writes.

Although Starr’s argument regarding verbiage forms the backbone of his call for the court’s dismissal of Darling’s suit, Starr also argues that Darling never properly served the board of county commissioners.

Again, Starr argues that Colorado Revised Statutes clearly prescribe the method and manner in which a board of county commissioners can be served.

“In all legal proceedings against the county, process shall be served on the clerk of the board of county commissioners, ...” Starr writes, citing Colorado Revised Statute 30-11-106.

According to Starr, Darling served an individual member of the board but not the board’s clerk as mandated by Colorado law.

Attorneys for TreeTops of Pagosa, LLC also filed a response to Darling’s suit Monday, and their claims piggyback on Starr’s arguments that Darling failed to properly enjoin the board of county commissioners. And, like Starr, TreeTops attorneys are also requesting that the court dismiss Darling’s suit on technical grounds.

Darling has long been a staunch opponent of TreeTops development efforts, and at times has joined a vocal cadre of project opponents and Piedra Road residents who have publicly challenged various stages of the project’s planning approval process, the county’s Future Land Use Map project and the Urban Services Area project. Those co-opponents however did not join Darling in his suit. In fact, just Darling and his wife Margaret are listed as plaintiffs, with Darling representing himself.

The TreeTops of Pagosa is located on Piedra Road about 3.7 miles north of U.S. 160.

Darling owns 3.63 acres in the vicinity of the TreeTops property.

According to Archuleta County assessor’s data, Darling’s property is located to the south of the TreeTops parcels, but is separated from TreeTops by a 20-acre tract owned by Christopher Bancroft.

With Darling, TreeTops and the county having filed documents, the case will begin making its way through the District Court process.

james@pagosasun.com