California developer Evan Melby sues Colorado Costilla County commissioners

California developer appeals denial of rezoning request
By ERIN SMITH
THE PUEBLO CHIEFTAIN

SAN LUIS - California developer Evan Melby has filed an appeal in district court here alleging that Costilla County Commissioners violated the Sunshine Law, denied him due process and went beyond their jurisdiction when they denied the rezoning request for his Little Norway Phases V and VI last month.

On Oct. 3, with no discussion, county commissioners unanimously adopted a six-page resolution denying Melby’s request to rezone almost 650 acres to "estate residential" from "agricultural."

Melby, who has developed an area known as Wild Horse Mesa south of here to the east of Colorado 159, wanted to subdivide 242.2 acres in Little Norway Phase V into 99 residential lots of about two acres each with 97 of them single-family residential lots, one multi-unit lodging facility and one community church.

He proposed to subdivide 406.42 acres of land in Little Norway Phase VI into 124 approximately 3-acre lots for single-family residents, a public park and wildlife corridor.

Among the reasons cited by commissioners for denying the proposed re-zoning was the lack of a demonstrated community need for the residential lots, concern over a lack of documents relating to the formation of a proposed metropolitan water and sewer district, no discharge permit, geologic and wildfire hazards, no utility easements for water and sewer lines along county roadways, land erosion that could impact water quality in Sanchez Reservoir, potential adverse visual impact, insufficient county roads to support the traffic at final build-out for the subdivisions, and the potential for an increase in human and wildlife conflicts as well as a conflict between hunters and resident homeowners.

Melby’s attorney, Erich Schwiesow, of the Alamosa law firm Lester, Sigmond, Rooney and Schwiesow, said the commission’s actions “were beyond its jurisdiction, arbitrary and capricious and constituted an abuse of discretion.”

The Schwiesow filing, dated last Friday, stated that the county land use administrator, who is not named in the action, required Melby to reimburse the county all fees it incurred in the review of the various applications for the past few years, paying the fees into a pool up front before the review of the application, “and that Plaintiff continually replenish the pool, thereby extorting thousands of dollars from Plaintiff. Neither the Land Use Code nor Colorado statues provide for such reimbursement.”

The suit maintains there were a number of violations of the land-use code including that the planning commission never made a written recommendation as required; the land use administrator did not submit his recommendation on the plan five days prior to the commissioners’ hearing but did so only the morning of the meeting in front of the commissioners; and the land use administrator did not attend the original hearing scheduled by commissioners, requiring a continuance of the hearing.

“Testimony at the hearing was offered by Plaintiff showing that the land was not classified as agricultural by the Costilla County Assessor, and was not taxed as agricultural land because there are no agricultural uses,” the Melby suit states.

On Jan. 27, a month after the hearing, commissioners denied the application. Melby amended his application and another public hearing was conducted Sept. 5. After closing the hearing, it was continued until Oct. 3. At that hearing, no further comment was taken and the commissioners did not discuss the matter.

Schwiesow’s filing maintains that commissioners had to have had a discussion on the matter to come up with Resolution 2006-16. The filing states that commissioners apparently held a non-public meeting on Sept. 29.

“Because Resolution 2006-16, which consists of six pages, was adopted without discussion on October 3, 2006, the Commissioners presumably met in secret to discuss the amended application sometime between September 5, 2006 and October 6, 2006,” the filing states.

“The rubber-stamping of a decision taken in secret is prohibited by the Colorado Sunshine law (and) is void because it was made in secret, and merely rubber-stamped at a public meeting,” the filing maintains.

Melby maintains that a number of people spoke in favor of the application because Little Norway would be the only subdivision with full infrastructure support; the planning commission supported it; and the commissioners' denial was not supported by any competent evidence in the record and therefore was an abuse of discretion.

Melby wants the district court to void the commissioners’ decision; declare the county requirement reimbursing it for legal and consulting fees unlawful; award him costs, attorneys’ fees and pre- and post-judgment interest; and further relief the court deems proper under the circumstances.

Commissioners did not return phone calls on the matter Tuesday.

A hearing date has not been set and a judge had not been assigned as of Tuesday afternoon.