The legal battle over the proposed Grace Church in Emma took another turn Tuesday when the Pitkin County commissioners approved a resolution authorizing the county to formally settle a lawsuit with the church.
“This is a necessary action, but not necessarily a desirable action,” said Jack Hatfield, chair of the Pitkin County board, before voting to approve the resolution along with commissioners Rachel Richards, Michael Owsley and Dorothea Farris.
Commissioner Patti Clapper voted against the resolution, which authorized Pitkin County attorney John Ely to “take further necessary actions” to settle the civil lawsuit filed against the county by Grace Church of the Roaring Fork Valley Inc.
Those steps include paying Grace Church’s attorney fees of $325,000 and paying the church $350,000 in exchange for the church placing a covenant on its property that bars it from filing any additional land-use applications for 10 years.
The county will also likely be forced by the court to pay the church damages for delaying construction of the project, Ely said. That portion of the lawsuit was separated from the “injunctive” claims which dealt with the right of the church to proceed with its plans. The amount the county must pay the church could be determined by the difference in the amount the project would have cost to build in 2005 and the cost to build it today. Since 2005, construction costs in the Roaring Fork Valley have escalated sharply. Damages will be determined in the next few months.
Grace Church was formed by members of the former Basalt Bible Church. Its 140-member congregation now meets in the Eagle County community building in El Jebel, according to Terry Maner, pastor of the church.
The settlement agreement also gives Pitkin County ownership of an acre of land, half of which is to be used as a fueling station for county vehicles.
The other half-acre will be turned into a public parking lot next to the popular Rio Grande Trail near the intersection of Emma Road and East Sopris Creek Road, just off of Highway 82.
The 2005 suit by Grace Church claimed that Pitkin County violated the Religious Land Use and Institutionalized Persons Act, or RLUIPA, when it denied the church’s amended land-use application to build an 8,600-square-foot church building, another 2,800-square-foot building, a 1,000-square-foot caretaker residence and 89 parking spaces on a 19-acre parcel of land.
In a series of steps the county has since taken toward settling the lawsuit, it rescinded its denial of the project in January and granted approval for a larger development, which includes an 8,000-square-foot sanctuary and chapel, a 2,400-square-foot residence, a 3,800-square-foot “expansion structure” and a 197-space parking lot.
The outline of the settlement was blessed by a federal court judge in January and the resolution passed Tuesday by the county commissioners was a necessary step to complete the process, according to Ely.
Ely also said it was in the county’s best interest to settle the case.
“We would have lost it,” Ely said. “It is a certainty.”
Ely said he retained lawyers with a firm in Boulder to help him make that determination.
Robert Lees, the Denver-based attorney for Grace Church, previously said that “if you deny people of faith, whatever their faith, their right to build, that’s a constitutional violation, hands down.”
The 2000 federal law known as RLUIPA precludes local governments from placing a “substantial burden” on religious practices and institutions unless there is a “compelling” public interest to do so.
Ely said that if the county lost the lawsuit it would then have no control if the church came in with an even larger approval.
The approval of the resolution and the settlement agreement by the county commissioners on Tuesday is a separate action from another lawsuit involving Grace Church and Pitkin County.
After Pitkin County rescinded its previous denial in January and gave the church permission to move forward with its project, members of Emma Caucus Inc., a neighborhood community advisory board, sued the county and Grace Church, claiming that the county violated the procedures of its land-use code.
The caucus has consistently argued that the church’s proposal is inconsistent with the county’s zoning and land-use code and master plans for the rural Emma area.
The church recently tried to get the lawsuit heard in federal court, but a federal judge on May 21 kicked the suit back to Pitkin County District Court.
The Emma Caucus claims that Pitkin County violated its land-use code when it granted approval to the church’s plans in January because the county approved more development than the church originally applied for and presented no new findings that the development was now consistent with the county’s land-use code.
“Nothing had changed since the first application that was properly denied by Pitkin County other than that the County was being sued in United States District Court,” states the lawsuit filed by the caucus.
David Kelly is the attorney for the Emma Caucus, as well as a resident of Emma and a plaintiff in the lawsuit.
“They didn’t even consider the land-use code,” Kelly said Tuesday regarding the commissioner’s January decision. “They just went and settled it. And the law that I have looked at says that by way of settlement you cannot ignore your local land-use code.”
Kelly also thinks that Pitkin County folded its hand too soon and that it could have won the initial challenge by Grace Church.
“I still think the case law is in favor of the county,” Kelly said. “I actually think they would have won.”
bgs@aspendailynews.com