Wal-Mart process moves ahead

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    Staff Writer

    Wal-Mart has submitted a Lot Consolidation and Boundary Line Adjustment Preliminary Plat, according to Pagosa Springs Town Planner James Dickhoff’s department head report to town council on Dec. 20.

    A final plat is expected to be recorded with the Archuleta County Clerk sometime this month, while a building permit application is expected next month, with ground breaking planned for the middle of this summer and a grand opening by the spring of 2014.

    One of the key issues surrounding the Wal-Mart development has been access to the site from Alpha Drive, and in particular the ownership of Alpha Drive. Late last year, the Archuleta County Board of County Commissioners offered a quitclaim deed on Alpha Drive to the town, which the town accepted, thereby claiming ownership of the road.

    “Alpha Drive has already been titled to the town from the county,” town manager David Mitchem explained, “so council will have a discussion about initiating annexation procedures.”

    At the Dec. 20 town council meeting, Mayor Ross Aragon said, “For a couple of these resolutions, we’re really not prepared to entertain public comments at this time, but we can act on them.” Aragon paused and turned to town attorney Bob Cole. “Can we act on them?”

    “Yes,” Cole answered. “You need to move forward with those. They relate to annexations. Actually, the first three items under new business on your agenda relate to annexations, which will come back before you for a public hearing with the second reading.”

    Aragon then proceeded to rush through two resolutions, 2012-21 and 22, with no public comment, no presentation from staff and no discussion from any council members.

    Resolution 2012-21 states, “Town staff is hereby authorized and directed to take all actions necessary and appropriate to petition the Council to annex Alpha Drive, including but not limited to preparing the annexation petition and annexation map.”

    The resolution also authorizes staff to, “Simultaneously amend the 1972 Plat to allow for the creation of additional access points along Alpha Drive, if amendment of the 1972 Plat is determined necessary or appropriate to implement the approval of the major design review approval for Wal-Mart.”

    Part of a complaint expressed by Steve and Vivian Rader, who own property just outside of town limits in Archuleta County — property that is primarily accessible by using Alpha Drive — is that the original plat limits the number of access points along Alpha Drive, thereby controlling the amount of traffic on the road and allowing freer access to those residents who must use the road to get to their property.

    “The reasonable person would question whether the TC would today be addressing the Alpha Drive issue further had there not been litigation filed in a attempt to require compliance with well-established state statutes,” Vivian Rader argued in an e-mail sent to SUN staff. “Likely, had there not been a challenge, the TC would have simply pretended a Quit Claim was sufficient, having already approved a plan that would alter Alpha Dr and its traffic flows affecting us nearby residents significantly.”

    Ironically, while the above resolution authorizes town staff to prepare and submit a petition for annexation, the next resolution, 2012-22, actually contains said petition (there was hardly a pause for breath, let alone any discussion or preparation, between the two votes on the resolutions) and is, “A resolution of intent to annex certain property known as Alpha Drive and finding the petition for annexation no. 2012-02 to be in substantial compliance with section 31-12-107, C. R. S.”

    Since this is a resolution, there must be a second reading where the public is allowed to speak before it is officially adopted, so section 4 of the resolution states, “A public hearing for the purpose of finding and determining whether the property proposed for annexation meets the applicable requirements and is eligible for annexation is set for February 5, 2013, at the hour of 5:00 p.m., at the Town Council Chambers, which is not less than 30 days nor more than 60 days from the effective date of this resolution.”

    Another item on the agenda for the Dec. 20 town council meeting read, “Discussion Regarding Rader et. al. v. Town of Pagosa Springs et. al. with Possible Executive Session to Receive Legal Advice … .”

    A phone call to Cole revealed, “The purpose of the agenda item will be to discuss with the attorney, Steve Dawes, who has been appointed by the town’s insurer to represent them in the matter. He is coming down and wants to talk to the council, myself, and the three other non-council defendants in executive session. Nothing that I am aware of has happened in the lawsuit at this point.”

    “A friend emailed me an agenda,” Vivian Rader wrote, “and so I also noticed there are items on today’s TC agenda regarding Alpha Dr – which is a cause of action in the federal litigation.

    “We have not been monitoring the Walmart progress since that is not the focus of our litigation and we sought no injunction. Walmart is NOT a party in the litigation. Unless discovery supports a claim against Walmart, perhaps re that undisclosed sum of money accounted for in the town’s record I tried to review for the appeal, Walmart will not be a part of our litigation, nor are they an interested party since the litigation is focused on our denial of remedy and actions we believe committed in violations of well-established law (e.g. Sunshine Laws, Colorado Recordation Act, etc).”

    At an earlier town council meeting, Mitchem requested an amendment to the 2012 budget and explained, “The town attorney, Mr. Bob Cole, has been working very diligently on the issues that the Town has faced this year. Due to some extraordinary situations we believe the $80,000 budget for the attorney will not be adequate for 2012. Assistance with the 2012 election, charter changes, conflict of interest, Wal-Mart (although Wal-Mart is reimbursing the town for the time spent on their project), the design review board appeal, as well as the attempted recall, and the possible upcoming initiative petition have put this line item over. We are estimating spending approximately $30,000 over this budgeted line item.”

    Mitchem requested that the $30,000 be taken out of the reserves from the general fund, and while the council agreed, council member Tracy Bunning asked, “The cost of defending the town in this action we have been discussing, will those expenses be reimbursed to the town?”

    “That will be the action of the town,” Mitchem responded. “Our response to that suit is to recover all expenses. Note that it is up to the court to make that decision, but, yes, that will be our request to the court. Wal-Mart has been paying for both design review by architects and engineers the town has hired, and legal expenses, but this is above and beyond anything related to Wal-Mart.”

    We take no joy in having to litigate,” Rader wrote, “but were denied remedy when the TC set our appeal on a date we absolutely could not attend and the mayor proceeded with a vote to set same without following TC’s own rules regarding preservation of public comment periods Steve and I had both signed up for, in the event there were issues that needed to be addressed — like our complete unavailability on the new, unilaterally determined date and time for our appeal, something beyond our control and where no LUDC timetables/structure/procedures were ever adopted for same.”

    Mitchem later confirmed that Wal-Mart is not named in the federal lawsuit the Raders have filed against the town, and the suit has had no effect on that company’s plan to build a 91,000 square-foot supercenter on the corner of Aspen Village Drive and Alpha Drive in uptown Pagosa Springs.

    “They’re still moving forward. They’re not waiting. They’re processing their initiatives with both CDOT (Colorado Department of Transportation) and the Army Corps of Engineers, and it is my understanding that they are taking steps to move that process forward. They haven’t stopped. They’re moving forward.”

    “Rumors that we are hiding out or left town are completely false and inflammatory,” Rader concluded. “Rumors that we are not even full-time residents here are also ridiculous. We were always very private people, thrust by the Walmart announcement to build so near our property, and which would deny us the very lifestyle we had invested in, into action that by its nature was unavoidably very public.”

    ed.fincher@pagosasun.com