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Wal-Mart appellants claim fraud, forgery

The Wal-Mart drama continued at last Thursday’s Town Council meeting as Steve and Vivian Rader took center stage to accuse town staff of forgery and fraud, while town attorney Bob Cole accused the Raders of hyperbole.

“For the record you are receiving the appellants’ notice of redaction and revision for good cause shown,” Vivian Rader read from a prepared statement.

She went on to list a number of complaints concerning procedural due process, and then claimed, as per the statement, “Tuesday, Sep. 25, 2012, the Raders became aware, that was just two days ago, by the way, that attorney Cole had removed the Raders’ notarized signatures from the document the Raders had quickly notarized on Tuesday, Sep. 18, 2012, and then placed our notarized signatures as attached to a different document we had never seen or approved, and e-mailed the same to town clerk April Hessman with direction to submit to town council today, along with a preface by him stating we had signed that document. We are defrauded of due process, of our signatures, and of good faith in fair dealing.”

After citing federal law, the constitution of the United States, and several other alleged abuses and damages perpetrated against her and her husband, she claimed, “Attorney Cole, (town planner) James Dickhoff, and (town manager) David Mitchem all were copied the e-mails yet did nothing to stop these offenses. You were warned that you are in possession of a forged document and being induced by a false representation into approving said resolution.”

Cole, participating via telephone, responded, “We had been working, what I thought was very amicably, with the Raders in preparing this stipulated procedure order and am quite surprised by the hyperbole of this presentation.”

He went on to explain that there were only two changes made to the document the Raders had signed. The original document had the resolution number as 2012- followed by a blank space, so Cole added the number “15” into the blank space. He also corrected the address for where the appeal hearing will take place from Town Hall to the Ross Aragon Community Center.

“So there’s been no fraud attempted,” Cole assured. “There’s been no fraud perpetuated. There has only, at this point, been a lot of hyperbole from what we thought was a party that was working cooperatively to provide a reasonable outline and structure to this hearing. Now, for all of the objections I heard, I haven’t heard any objection to those two changes.”

Cole then suggested that the town council remove the Raders’ notarized signature and continue the process to adopt Resolution 2012-15 without the approval of the Raders.

“I am offended that our character has now been attacked,” Vivian Rader responded, apparently unconcerned that she had just accused the entire staff of the Town of Pagosa Springs of being liars, forgers and frauds. She claimed she had recorded the phone conversations with Cole and the representatives of Wal-Mart and she could prove she was in no way amicable towards them; she was, in fact, furious.

Her biggest complaint, before she found out about the signatures being moved to a new document, was feeling rushed into accepting the procedures. “If it was so rushed that there needed to be revisions and corrections, I believe that proves our point that it was so rushed we really didn’t have a fair opportunity to review it, either.”

Steve Rader replaced Vivian at the microphone and said, “I have a real problem with setting rules and procedures specifically designed between Wal-Mart and Vivian and I. I really don’t know how you guys are going to correct this. Those rules and procedures were supposed to be put in place back when the LUDC was approved. For whatever reason they weren’t put there, I don’t know, but to start making them up now is a little bit ridiculous. That is truly a violation of our due process rights. Period. End of story.”

Cole reassured the council that the only due process consideration of concern is whether or not the appeal hearing is fair, and the structure being proposed by the guidelines in this resolution are fair. On the other hand, Cole suggested, the council did have the option of just holding the hearing as outlined in the LUDC without any procedural structure and without allowing the Raders to submit any briefs.

When Mitchem argued for adopting the resolution and assuring order to the hearing, council member Clint Alley asked point blank, “Are the Raders saying that there’s some problem with the actual process, or are they concerned about number one and two: the change of adding ‘15’ on the 2012 and the change of address?”

While Vivian Rader reiterated her objection to what she felt was a rush to get the resolution adopted, she voiced no objection concerning the actual procedure, but only said, “Our problem, really the crux of it, is that our signature pages, which were attached to a document when we had them notarized, were taken from that and placed on another document and represented to you as if we had signed that document. That is our problem. If you’re going to say that I signed a document you don’t change a comma, you don’t change anything, you don’t put an ‘and,’ not a word, not a punctuation mark, and then represent it as that was the document we actually signed. Anyone who deals with legal documents will understand what I am saying.”

“I think the Raders, unfortunately, are trying to make something out of nothing,” Cole countered. “For them to characterize this as some sort of fraud is absolutely unfounded. What they are trying to do is make an issue out of a non-issue. I don’t see that as relevant. I’m not yet hearing from the Raders that they either object to a briefing schedule, briefing opportunities, limitations on the length of arguments, or the kinds of elements that are put forward in the order before you.”

The Raders, in turn, continued to complain about a variety of things, from her travels out of town to being unable to access the Internet to being treated rudely over the phone, and at one point even mentioned that they had to euthanize their dog while all of this was going on, but not once did they say anything about the substance contained in the resolution before the council. Alley expressed frustration that his question wasn’t answered and council member Don Volger responded, “I heard Mrs. Rader say that she had objections but she didn’t cite any specifics.”

Council member Darrel Cotton, also obviously frustrated, said, “We need to clarify. I have a signature page here from both of the Raders, and if the only thing that changed on the document that you agreed to is the addition of the resolution number and the location of the hearing … is that correct? Is that the only thing that’s different?”

Vivian Rader stepped up to the microphone, looked Cotton in the eye, and said, “The objection is that the signature pages that were notarized are now attached to a document that we didn’t see until Tuesday of this week and did not have notice or opportunity to review. Revisions were made and now it is represented as though we signed that one when that is not the document that we had notarized.”

“Mr. Cole,” Cotton asked, “Would you attest that the only changes to this document are the addition of the ‘15’ and the location of the meeting?”

“Yes,” Cole replied, and went on to explain that he had sent an e-mail to the Raders disclosing the two minor changes and stating that there were no other changes. He continued to testify that the Raders had been aware of this for a full 10 days before the town council meeting and had plenty of time to raise objections.

The Raders claimed that since they had been so rushed and were forced to spend so much time dealing with the issue of their signatures being placed on a document they didn’t sign, they did not have time to write their opening brief and would not be able to turn it in by the deadline, which according to the original briefing schedule would have been the next day, Sept. 28. Consequently, at the last minute Cole suggested the entire briefing schedule and the appeal hearing be moved by one week to give the Raders more time.

In the end, Volger made the motion to accept the resolution with a few minor changes. The motion was seconded by Cotton and passed by a unanimous vote.

Resolution No. 2012-15, as originally written, was “a stipulated resolution and order regarding procedures governing the appeal of Resolution No. 2012-12 of the Town of Pagosa Springs Design Review Board.”

In Volger’s final motion, once it became clear the Rader’s would continue to refuse to accept the outlined procedures, the word “stipulated” was removed from the resolution. Some key elements of the resolution include the following orders:

The hearing on Appellants’ Notice of Appeal will be held Tuesday, Oct. 23, (this was changed from Oct. 16) at noon, before the town council at the Pagosa Springs Community Center, 451 Hot Springs Blvd.

The issues on appeal are limited to the issues raised in Appellants’ Notice of Appeal, and as further supplemented and developed in Appellants’ opening brief. No additional issues will be heard by council.

At the hearing, the presentation order shall be as follows: Appellants will together have a total of 30 minutes to make a direct argument to the council. Town staff, on behalf of the DRB, will have 30 minutes in which to present a rebuttal argument to the council. Appellants will together be given a total of 15 minutes for surrebuttal. Thereafter, arguments will be closed and council may ask questions of either or both parties.

Only the parties can provide argument or respond to council questions. Arguments, rebuttals and responses to council questions may be given by the parties directly or through those persons or representatives the parties deem best qualified to present specific information or answer questions asked by council.

In determining whether to affirm, reverse, or amend the decision of the DRB either in whole or in part, the council will consider the approval criteria considered by the DRB pursuant to Section 2.4.6.D.1.b of the LUDC as well as the appeal criteria set forth in Section 2.4.13.D of the LUDC.

At the conclusion of the parties’ arguments and council questions and discussion, if any, council may make a decision or take the matter under advisement until a future public meeting, the date and time of which shall be announced before moving to other council business or temporarily adjourning the proceedings. Council’s decision on the appeal shall be affirmed in writing, and served on the parties and applicant by e-mail. Copies will also be filed with the town clerk and placed on the record of the proceedings. Any party may request a paper copy of the council’s decision from the town clerk. The council’s decision shall be deemed final upon transmittal of written order by e-mail to the parties and the applicant.

ed.fincher@pagosasun.com

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