August 2008

Granath Mesa development proposal sparks lawsuit

By Gail Binkly

The Summerhaven subdivision on Granath Mesa near Dolores has not yet received final approval from the county, but already it has spawned a lawsuit and counterclaims.

In April, plaintiffs David Doran, John Hernandez and Don Raney, all landowners on the mesa, and their attorney, Jon Kelly, filed suit in district court against the Montezuma County commissioners and the subdivision’s developers, Sin Vacas Properties, LLC.

The complaint alleges that the subdivision is inconsistent with the county land-use code and asks the court to overturn the commissioners’ approval in March of the developers’ zoning request.

“Approval of the proposed zoning would be contrary to every previous denial by the Board of the same zoning designation proposed for the Property and other properties on Granath Mesa,” the complaint states.

In approving the zoning, the commission “abused its discretion, exceeded its authority and jurisdiction, and acted in an arbitrary and capricious manner,” the complaint alleges, arguing that the zoning approval does not comply with Colorado law or the county’s land-use code.

A long history

The Summerhaven proposal has a long history of controversy. In February 2007, brothers Tim and Peter Singleton appeared before the county planning commission seeking approval of 3-9-acre zoning and a presketch plan for a 44-lot subdivision on 160 acres owned by the Singletons’ family at roads W and 31 about 2 miles north of Dolores.

After a public hearing at which numerous neighbors opposed the subdivision, the planning commission recommended denial of the request on a 5-1 vote.

The Singletons appealed to the county commissioners, who rejected the proposal 3-0 in June 2007, citing concerns about fire safety and water supply. No rural water company pipes water to Granath Mesa; residential water for the subdivision would be provided by cisterns and wells.

The developers modified their plan, cutting the number of lots to 36, eliminating a provision that would have allowed guest houses, and obtaining permission from the state for each landowner to drill a well rather than just having one or two wells serve the subdivision.

Still, in December 2007, the planning commission recommended rejecting the new proposal, this time on a 7-0 vote. The board said the subdivision would generate “significant adverse impacts” to surrounding landowners. Most of the acreage on the 7,000-footelevation mesa consists of parcels of 35 acres or more, and no other request for A/R (Ag-Residential) 3-9-acre zoning there has received final approval.

But on March 10, 2008, the county commissioners voted 2-0, with Steve Chappell absent, to approve Sin Vacas’ request for A/R 3-9 zoning on the 160- acre tract.

At the same time, however, the remaining members — Gerald Koppenhafer and Larrie Rule, who made the motion — rejected the actual presketch plan, indicating that they still had serious concerns about the water situation and fire safety, and saying that the Singletons needed to come back with a plan that would satisfy those concerns.

“If it wasn’t for this water issue, I personally have no problem with your lot size,” Koppenhafer said at the time. “This water thing bothers me. I’ll tell you that right up front.”

A flurry of activity

The final plan has not yet come before the county. However, there has been a flurry of legal filings and motions concerning the subdivision.

In a June 13 answer to the complaint, Sin Vacas and its attorney, Kelly McCabe of Cortez, denied the allegations that the zoning had been improperly approved.

The developers also filed counterclaims charging that the plaintiffs “intentionally filed the Complaint herein solely to delay and preclude the Sin Vacas’ rightful use of its property without just cause” and stating that the plaintiffs’ actions have caused damages of approximately “$2,000.000.000” including lost profits, lost sales opportunities, interest, falling market value on the property, and attorney’s fees.

Sin Vacas also charged that the plaintiffs’ complaint “is substantially frivolous, groundless, and vexatious” and that the company should therefore be entitled to an award of attorney’s fees and costs under Colorado law.

In a separate answer to the plaintiffs’ complaint, the commission and its attorney, Bob Slough, denied that the board had acted arbitrarily or capriciously in approving the zoning and stated, “There is competent evidence in the record to support Defendant Board’s decision.”

Then, in a July 11 motion and brief seeking to have the defendant’s counterclaims dismissed, the plaintiffs responded that their original complaint was not frivolous, but a legitimate request for a review of the county’s zoning decision.

An abuse-of-process claim, they stated, requires that the plaintiffs be attempting to accomplish an “ulterior purpose,” one that “the proceeding is not designed to achieve.” Seeking to have a zoning decision overturned and the development halted does not amount to an improper use of the legal process or an “ulterior purpose,” they argue.

The case had not yet been set for any hearing in district court at press time, nor had a date been set for the final plan to come before the commission again, because of the ongoing litigation.