By Ed Fincher
The Town of Pagosa Springs and Archuleta County have been served with a lawsuit by Steven and Vivian Rader alleging civil rights violations and asking for $2,250,000 in compensatory relief and $6,750,000 in punitive damages.
The SUN obtained a copy of the complaint, filed by the Raders in U.S. District Court for the District of Colorado on Oct. 22, one day before a town council meeting scheduled to hear their appeal of the Design Review Board’s decision to approve the Wal-Mart application. The Raders did not attend the meeting and their appeal was denied.
In the federal complaint the Raders state, “This is an action by plaintiffs, pro se, against government officials acting under the color of law for civil rights violations involving Constitutionally-protected rights by deprivations of due process, denial of redress of grievances, unreasonable seizure of private property, papers, and effects, and denial of equal protection in the law.”
Not only are the Town of Pagosa Springs and Archuleta County named as defendants, but also individually included in the list are Mayor Ross Aragon, Town Manager David Mitchem, Town Planner James Dickhoff, Town Clerk April Hessman, Town Attorney Robert Cole, Cole’s law firm (Collins, Cockrel, and Cole), town council members Don Volger, Darrell Cotton, Kathie Lattin, Tracy Bunning and Clint Alley, County Attorney Todd Starr, County Administrator Greg Schulte, and county commissioners Clifford Lucero and Steve Wadley.
Notably absent from the list are town council member David Schanzenbaker and County Commissioner Michael Whiting. The complaint states that both government entities and the CCC law firm, “is being sued as a person,” and each individual listed, “is being sued in both his (or her) official and individual capacities.”
At the Oct. 25 town council meeting, held two days after the appeal hearing, Cole presented resolution No. 2012-17, a resolution and order denying the appeal of Vivian and Steven Rader and affirming resolution No. 2012-12 of the Town of Pagosa Springs Design Review Board.
“This is the written findings and order as required by your Land Use and Development Code on this appeal,” Cole explained, “and follows up on the hearing and your determination Tuesday to deny the appeal and affirm the DRB’s decision.”
As the council members flipped through the nine-page document in front of them, Cole said, “First of all I want to note that I apologize for not getting this to you until last night. Hopefully you’ve had a chance to look it over.”
During the discussion that followed Cole’s presentation, Schanzenbaker said, “I’m a little uncomfortable approving this today since I just got it this morning to read. It is significantly more specific than the motion that we approved on Tuesday.”
In particular, Schanzenbaker pointed to section 20 of the resolution, which states, “Appellants also make a number of accusations in their Notice of Appeal and Opening Brief that do not relate to the approval criteria in the LUDC, but which deserve determination.”
The section contains four subsections which go on to refute many of the claims the Raders made in their federal lawsuit, instead of remaining specifically on the subject of the appeal of the DRB decision.
“Paragraph 19 in this order goes to the criteria your LUDC says you should judge an appeal by,” Cole explained. “The appellants raised a number of other issues that don’t seem to fit well within those criteria, or don’t fit at all. They raised them, town staff responded to them, there was discussion of council as to those other elements, and so I think it is also appropriate that your order reflect your findings and conclusions related to these other claims.”
“I guess I was thinking,” Schanzenbaker replied, “that this document today would more closely reflect the verbal motion that we made and not encompass as much of the written aspects of their appeal, so I am a little uncomfortable with the scope of today’s resolution. There are a few of these conclusions that I’m not sure I voted for on Tuesday.”
The decision at the Oct. 23 hearing to deny the Rader’s appeal had been unanimously approved and had specifically included an “aye” vote from Schanzenbaker.
“I am comfortable with this,” Cotton affirmed. “I think it answers the questions the appellants made as to why things happened and how they happened and I think it’s necessary to respond to all the questions.”
“I also echo Mr. Cotton’s sentiments,” Alley added. “My main concern was that a lot of this could have been addressed on Tuesday, but nobody was there to do that, so I feel like we have to move forward in some sort of fashion. I mean, the appellants weren’t there, and we’re not going to have another appeal process, are we?”
Schanzenbaker pointed to specific wording in the resolution concerning the DRB’s determination that the Wal-Mart project will have a positive impact on the community, stating that he didn’t necessarily agree with that assertion, despite having voted to deny the appeal. When Mitchem suggested changing the wording of that sentence to “a net positive impact” to reflect both positive and negative impacts, Schanzenbaker agreed.
However, when the rest of the council indicated a willingness to agree to that change of wording, and Aragon asked for a motion, Schanzenbaker interrupted, “That was one example of concerns I had with this document, and while it is good to insert that word in that sentence, it might not be everything that would be necessary for me to feel more comfortable affirming this resolution. Part of it stems from the fact that it is an eight-page document that I just received this morning. I might feel more comfortable if I had more time.”
“Well, that’s the whole point,” Aragon replied. “For the people who are positive about this project in the economic sense, the longer we stall this …,” Aragon paused and changed directions. “I don’t see why you don’t feel comfortable; you’re not named in the lawsuit.”
“I don’t think that’s correct,” Schanzenbaker asserted, “because I represent the town and the town is part of the lawsuit. Just because my name doesn’t appear on that lawsuit doesn’t mean I’m not a party to the lawsuit.”
In the end, Bunning made the motion to approve the resolution denying the Rader’s appeal, Cotton seconded it, and the vote was 5-1, with Schanzenbaker opposed. Volger was not present at the meeting.
The town council concluded the public portion of the meeting, then went into executive session to receive legal advice from Cole concerning the Raders’ lawsuit.