A citizen-led group opposed to the Tree Farm development in El Jebel said it will take its case to the Colorado Supreme Court after exhausting all other avenues, including a request for reconsideration by the state’s court of appeals that was handed down in June.
In explaining the petition for certiorari, or a request for judicial review of a lower court’s decision and continuing to challenge the development’s approval by the Eagle County Board of Commissioners, which at build-out is approved for 340 residences and 135,000 square feet of commercial space, Save Mid Valley member Ken Ransford said there were four main reasons why they feel this merits action.
In a written statement, Ransford said late last week: “Save Mid Valley is submitting this petition for certiorari because (1) the project violates TABOR; (2) the approval violates the state PUD act; (3) Eagle County did not follow its land use requirements in approving the project; and (4) the project fails to meet the Eagle County Affordable Housing Guidelines.”
The $250 million Tree Farm project, which according to its website spans over 43 acres, including Kodiak Ski Lake, is located across Highway 82 from Willits Town Center. The project is being developed on property owned by longtime local and former pro ski racer Ace Lane who acquired the land in the early 1990s.
“It is their right to seek Supreme Court review, but we do not feel this matter warrants any further judicial involvement and we will defend accordingly,” according to a statement provided Friday by the Eagle County Attorney’s Office.
David Maars, a Tree Farm spokesman and chief financial officer for Geronimo Ventures, (Lane’s development arm) could not be reached for comment.
In discussing the Tree Farm’s evolution from a water ski lake to its current plan of commercial and residential development, Ace Lane told the Aspen Daily News in 2018: “I wanted to send a message for humanity and for this valley. I felt like it was a progressive valley and would welcome something of this nature, with units that are much smaller square footages, which makes them more attainable.”
Applying their own laws
Political opposition to the development has come in the past from the Basalt Town Council and Eagle County’s Roaring Fork Regional Planning Commission, the latter which was a referral agency that identified traffic impacts as one of the plan’s flaws. Despite the commission’s unanimous decision against the application, in June 2017 Eagle County’s board of county commissioners voted 2-1 in favor of the Tree Farm’s approval.
The commissioners subsequently granted final plat approval for the Tree Farm’s first phase in 2019 and its second phase last month.
Part of the basis for the challenge to the approval, according to Ken Ransford, who said he is representing Save Mid Valley pro bono (as Ransford said is also true of the group’s other members), is “abuse of discretion.” They will appeal the lower court’s land-use decision under the civil remedy Rule 106, which enables citizens to petition the court.
Ransford said it’s the group’s opinion that the commissioners “did not apply their own laws” when it came to considering traffic impacts at the Willits intersection, which he suggested significantly undercounted (given the development’s magnitude) the amount of time motorists would spend at the traffic light.
He also pointed out that neither of the two Eagle County commissioners who approved the Tree Farm during the 2017 vote live in the Roaring Fork Valley.
“The Eagle County commissioners live 55 miles away from here. They don’t know what it’s like,” he said.
Ransford went on to suggest that because less than 20 percent of Eagle County residents reside in the Roaring Fork Valley, (with the majority residing in the I-70 corridor), fielding a successful candidate for county commissioner from this watershed is difficult if not impossible.
“We can’t sway the voters. It’s a case of taxation without representation,” he said.
Changes to the property’s zoning is another point of contention. Save Mid Valley argues the original zoning laws, which were under the “Resource” category, should be applicable because the public was never notified about the change to a planned unit development.
“The developer let its Preliminary Plan PUD approval lapse because it never requested Final Plat approval, the last of the three steps necessary to obtain a development right,” Ransford said.
The amount of dedicated affordable housing in the project is also being contested by Save Mid Valley, which it says has a process whereby some homes could be offered for sale to nonresidents if they aren’t purchased by locals within a 60-day window.
“The Eagle County Affordable Housing Code permits this, but only if the developer dedicates 2% of the sales price to the Affordable Housing Department. But the Preliminary Plan permits 1% of the 2% fee to be paid to the Eagle County general fund, where it can be used for any purpose in Eagle County. That violates TABOR, the Taxpayer Bill of Rights, which specifically calls out and forbids Real Estate Transfer Taxes. It also violates CRS Section 37-27-105, a statute passed in 2011 specifically to outlaw real estate transfer assessments unless they are dedicated to being spent on the property burdened by them,” according to Ransford.
Asked what kind of a remedy the group is seeking, should the Colorado Supreme Court decide to hear the case, he said, “What I would like to see is they put in the affordable housing they committed to,” which was 128 residences priced at the average median income for this area.
“I’d probably say that’s a victory,” Ransford said.