Lawsuit against El Jebel Tree Farm project seeks to revoke approval
July 20, 2017
A midvalley group filed a lawsuit Thursday against three Eagle County commissioners and a development firm over the June approval of the Tree Farm project in El Jebel.
Save Mid Valley and spokesman Ken Ransford alleged the three Eagle County Commissioners exceeded their jurisdiction by approving the Tree Farm — a project with 340 residences and nearly 135,000 square feet of commercial space. Ransford and the group are asking a judge in Eagle County District Court to revoke the approval and send the issue back to the county commissioners for review.
Affordable housing, traffic and procedural issues are at the heart of the litigation, which was filed on the group's behalf by attorney Tim Whitsitt.
Eagle County has a policy of not commenting on active litigation, county attorney Beth Oliver said Thursday. She assured the commissioners on several occasions during the review that their procedure was appropriate.
“The sketch plan upon which this preliminary plan is based expired on Sept. 1, 2013, and the BOCC was not authorized to consider the preliminary plan application filed after the expiration.”Lawsuit brought against developer and three county commissioners in Eagle County District Court
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El Jebel-area landowner Ace Lane and his company, Woody Ventures LLC, received initial approval for the project in 2009. The project was stalled during the recession, but Eagle County granted extensions of the approval.
Lane resurrected the project and it has been winding its way through Eagle County's process since 2015 for a second round of review, called a preliminary plan. The commissioners voted 2-1 on June 26 to grant the critical approval. Lane and his development team need to meet some technical and legal issues to acquire final approval. The team anticipated starting construction in summer 2018.
The lawsuit contends those six years of extensions beyond the original approval for two years in 2009 created a procedural problem by allegedly violating the Eagle County land-use regulations.
"The sketch plan upon which this preliminary plan is based expired on Sept. 1, 2013, and the BOCC was not authorized to consider the preliminary plan application filed after the expiration," the lawsuit alleged.
In addition, the lawsuit contends that the plan was changed so drastically that it doesn't conform to the sketch plan approval from 2009. The amount of commercial square footage increased 40 percent from 96,375 to 135,000. The amount of affordable housing with price or rent restrictions targeted for households at or below 100 percent area median income decreased 65 percent from 128 to 45 units, the lawsuit said.
Oliver addressed that point numerous times during the review. She told the commissioners that the applicant could alter the proposal based on feedback from the county and public.
Save Mid Valley contends the commissioners exceeded their jurisdiction by giving Woody Ventures undue credit for affordable-housing mitigation. The project proposed to make 150 units available for sale to local residents under "resident occupied" guidelines. There would be no price caps or asset limits, but residents would have to live in Eagle County or the rest of the Roaring Fork Valley. However, 60 days after the units were listed, they could be sold to anyone living anywhere.
Critics contended those units wouldn't be preserved as affordable housing. The commissioners and the county housing department determined otherwise and gave Lane credit for mitigation. The lawsuit contends those units shouldn't apply as affordable housing.
Traffic is another point of contention. Save Mid Valley contends Eagle County granted approval under the "mistaken determination" that traffic at Highway 82 and Willits Lane/Tree Farm Lane would function at a level of service rating of B or C.
"The Tree Farm's own traffic consultant projected that through-traffic on Highway 82 at the intersection is currently Level of Service E and F during the morning and evening rush hours," the lawsuit said. In other words, the lawsuit contends the actual level of service would be much worse. The study determined that at full build out, the Tree Farm project would produce about 5,500 vehicle trips per day.
Dave Marrs, a member of Lane's development team, said Thursday he hadn't seen the lawsuit or been made aware of it so he had no comment.