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Wal-Mart access issue heats up

Due to “scheduling conflicts,” Pagosa Springs Town Planner James Dickhoff announced last Thursday that the next Pagosa Springs Planning Commission, Board of Adjustments and Design Review Board meeting and public forum for Wal-Mart has been rescheduled — from Tuesday, Aug. 14, to Tuesday, Aug. 21, at 5:15 p.m. in the Ross Aragon Community Center.

That original meeting date and time was reported in last week’s edition of The SUN.

However, while Dickhoff’s announcement, made during the Town Planning report at the July midmonth meeting of the Pagosa Springs Town Council, was the extent of council dealing with the ongoing Wal-Mart discussion (with town staff continuing to maintain that construction on the store will most likely proceed in early 2013), discussions during yesterday’s joint meeting between the Pagosa Springs Town Council and the Archuleta County Board of County Commissioners, and public comments offered by local residents at last Thursday’s council meeting made it clear that further conversations could get dicey.

In fact, one resident hinted that civil or criminal action might be leveled against the town.

Comments by local resident Vivian Rader provided the suggestion that the controversy regarding Wal-Mart could be heating up. An outspoken opponent of the project (and residing close to where the store is proposed for location), Rader has attended numerous meetings since the first of the year, speaking out against Wal-Mart at nearly every meeting — even if Wal-Mart issues were not on the agenda.

At Thursday’s meeting, Rader addressed issues she has with traffic lanes and signs along U.S. 160 adjacent to where the project has been proposed.

“I’m also really concerned because traffic signage has been removed on Aspen Village Drive and Highway 160,” Rader said. “I think it’s an immediate public danger because there’s merging lanes immediately there once you get south of 160 and, without there being signage anymore to say who has to yield to who, it is an issue.”

Rader continued, “All the painting on the road is gone, it’s worn off, so there’s nothing there. And it further concerns me because there was a complete misrepresentation of what was approved for that area, what has been in that area, at the last design review meeting, without the signage there’s no way to put them back and visually see that was represented was not true to what was approved so, I wonder who took the signs down by what authority, why, and if CDOT had been consulted.”

In a follow up e-mail to SUN staff, Rader wrote, “The reason I stressed the signage removed from Aspen Village Dr — besides the true public safety issue— is that Wal-Mart LIED to the planning board at the design review, stating that the right lane south has been a right-turn only (to Parelli’s) so that the traffic flow is not really being changed, but improved by addition of a left-turn-only lane.

“The TRUTH is that traffic accessing Aspen Village Dr from the west, via a right turn in, was required to YIELD to other traffic, and that both THROUGH traffic and right-turn to Parelli’s had to immediately shift (or stay) RIGHT, with the LEFT lane being LEFT turn only.”

Rader’s e-mail concluded, “The Walmart changes will require a complete reversal from what has become the routine for those of us in the area. The board was enduced (sic) into believing otherwise, and with no paint or signs, the truth cannot be readily proven by merely eyeing the site.”

At Thursday’s meeting, Rader’s final statements provided the most provocative allegations, however.

“I’ve come across three false documents,” Rader told council. “Two of them have been recorded and I’ve found that the county departments rely on them.

“I’m concerned because they do have an access to the major design review that’s going on,” Rader continued. “In two of the documents, the Town of Pagosa Springs is listed as a party. So, I’m at a point where I’m going to have to report that and I’ll be filing some complaints but I want to see if, perhaps information will come out to clarify that and fix that.”

Saying that, short of clarification or correction she would, “do what I need to do,” Rader said, “As a public citizen, when I see something that’s absolutely false and I see people ... inducing to believing the falsity ... and relying on that, that’s just something that needs to be addressed.”

Rader denied a request by SUN staff to see documents she referred to, writing (in a follow up e-mail), “I believe it would be counterproductive to my efforts to expose the documents at this time. Also, I don’t want to invite ‘scrambling’ to alter them while I’m still gathering additional foundational documents for litigation to support each & every element of important causes of action.

“Hope you understand — just worked too hard to jeopardize the outcome I hope to achieve for the public good.”

In a previous e-mail, Rader wrote, “As far as the 3 false documents I’ve found: I am convinced civil litigation will occur.

“Because county departments are shown in public records to be relying upon the 2 recorded documents, and because a system of trustworthy recorded documents is a fundamental PUBLIC right (nominal damages) & recognized under Colorado’s criminal statutes, I am filing formal criminal complaints, verified and with authenticated documentation, to numerous state (and federal) entities — after the next design review (because I believe the worst is yet to be seen and documented.”

If Rader comes forward with proof that show legal documents were falsified, that not only could result in criminal prosecution, but could lead to litigation that might delay the Wal-Mart project.

For all intents and purposes, the Wal-Mart discussion has not only become more heated with time, but has grown more complex.

For example, at yesterday’s joint meeting between members of the BoCC and Pagosa Springs Town Council, the issue of Alpha Drive — a road needed by Wal-Mart for traffic to access the store site — remained a sticking point between the town and county.

As reported in the June 14 edition of The SUN, ownership of the road remains questionable, with the town claiming Alpha Drive is in the county’s road system, but the county asserting that it does not own the road.

Yesterday, County Attorney Todd Starr announced to both boards that, after meeting with town attorney Bob Cole, the BoCC would seek to quit claim the road over to the town at its Aug. 7 meeting, despite continuing to deny ownership.

Mitchem said that, of all alternatives for settling the issue of the road, “I believe a quit claim deed is the cleanest.”

However, County Commissioner Michael Whiting asserted that the quit claim was a questionable move, at best, both ethically and legally.

“I’m kind of a Fourth Amendment guy,” Whiting said. “Private property rights, search and seizure, et cetera. Obviously, this is a process that’s been developed for this, but we don’t know who owns it. Most of the documentation indicates that good faith efforts were made and processes were started to acquire this property from private citizens, none of which were ever completed.

“We’re stuck here with a process of taking private property rights without due diligence,” Whiting added.

Commissioner Steve Wadley said he disagreed with Whiting and said that, although the county was not claiming ownership, it was quit claiming the property should it happen that records indicate county ownership of the road.

“We’re just saying, should we have ownership of the road, we’re giving it to the town,” Wadley explained.

Whiting responded by asserting that the county was rushing the process and in doing so, “We may be undercutting private property rights and I’m not willing to take that chance.”

Whiting said that rush was due to, “the elephant in the room,” namely, “... everybody knows Alpha Drive is a component of Wal-Mart,” adding that, if the road was “just any other county road,” due diligence in determining proper ownership would be conducted.

During the discussion that followed, council member David Schanzenbaker asked why the town didn’t simply annex the road.

Mitchem responded that the road would need to be paved to town standards (as spelled out in the town’s Land Use and Development Code) before it could be annexed. Mitchem added that acquiring the road via a county quit claim was just, “Part of the process.”

However, neither Schanzenbaker nor council member Clint Alley felt comfortable with the town claiming ownership of the road when the potential existed that someone with a title on the property could come forward to make a claim and put the town at risk for litigation.

Again, Wadley stated that, since the county does not want the road, he saw no problem with providing the quit claim.

“We’re going to dispose of county assets without even thinking about it? Without consulting the public? We haven’t even heard from the public, our public, on this,” Whiting shot back.

In a statement after the meeting, Whiting wrote, “Even if we do own it, the County can and should use it as a lever to bring Walmart and the Town to the table ( to jumpstart the stalled CBA process).”

The issue of a Community Benefits Agreement was raised by Pagosa Springs Community Development Corporation Board Member Muriel Eason when, reading from a prepared statement to address both boards, she claimed that a move to quit claim created untoward appearances in how both the town and the county were dealing with Wal-Mart.

Eason read, “The town planning commission makes a motion to continue the design review once more and includes a motion that Wal-Mart should meet with the CDC to craft a CBA and some other reasonable requests like guaranteeing a certain amount of local subcontractors be used. Although time is ticking down and the CDC has been ready for more than a week, no CBA meeting appears to be forthcoming. Was this a gesture to pacify and distract an active and engaged public and create the appearance of a town concerned for doing the right thing for the community?”

As reported in The SUN, the issue of a CBA has suddenly come to the fore, with some local officials and residents wondering if such an agreement could be leveraged between the town and Wal-Mart.

When SUN staff raised the issue of a CBA at a July 10 meeting, the question involved proposed assurances that, should Wal-Mart fail at its Pagosa location and the facility become vacant, the building would be turned over to the town.

“The downtown City Market building is a blight on our community, there’s no doubt about it,” CDC Board Member Mark Weiler said at that same meeting, advocating for a CBA discussion. “I’d like to encourage the planning commission to encourage Wal-Mart to enter into an open, honest, full-range Community Benefits Agreement with the Pagosa Springs Community Development Corporation.”

When Durango annexed a portion of La Plata County (in order to provide water and sewer connections for a Wal-Mart store), an agreement similar to a CBA was attached, one that included such things as design concessions, “green” construction elements and the donation of riverfront property as well as the contribution and construction of riverwalk features.

In fact, the PSCDC (see related article) has invited the public to attend a CBA discussion taking place at its Monday, Aug. 6 meeting at 5 p.m. in the Quality Resort and Suites (formerly known as The Pagosa Lodge).

The Aug. 21 design review meeting will be the third time this year that preliminary designs for Wal-Mart have gone before the planning commission. Although the town has an interest in making that meeting the last design review (despite the project’s numerous, apparent non-compliance with the town’s LUDC, as identified by the planning commission in two staff reports, and including items such as facade design, building orientation, parking lot issues and at least a dozen other items not meeting requirements in the LUDC), it appears the process may be far from settled, given various loose ends, perceived improprieties and unproven, but serious, allegations.

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