Town of Snowmass: Resident’s legal claim should be dismissed

Tuesday, December 23, 2014

The town of Snowmass Village on Friday answered a lawsuit that seeks to invalidate Base Village development rights, denying that council members had improper talks with the project’s developer and contending that a legal claim should be dismissed.Richard Goodwin, a longtime resident and vocal critic of the town’s handling of Base Village, sued the municipality in October. Besides alleging that “certain members” of council had improper discussions with a representative of a subsidiary of Related Colorado, Base Village’s developer, the lawsuit also claims that past transfers of development rights violated the original agreement between the town and the first developers.

Goodwin, in addition, wants a judge to rule that the development rights are no longer valid because certain construction milestones mandated by the town have not been met. A divided town council approved an ordinance in October that extends the rights to 2019.

But a motion to dismiss filed by the town says Goodwin’s attempt to have a judge issue a pretrial ruling on the town’s actions should be dismissed because it does not conform to state law. Goodwin’s lawsuit contains two claims, one for a ruling called declaratory judgment and another that seeks judicial review of the town’s actions on Base Village for the past 10 years.

“He seeks a ruling that the town exceeded its jurisdiction and abused its discretion, and must rescind and cancel” any and all votes, approvals or other agreements that led to the extension of the development rights, wrote the attorney representing the town, Heidi Potter of Boulder.

The town has no issue with a judge reviewing the council’s decisions on Base Village, but Goodwin is not entitled to a declaratory judgment, Potter wrote. While Goodwin claims the missed milestones constitute a material default, he “does not assert any constitutional questions or challenges to the overall validity of the town’s general development ordinances,” the motion to dismiss says.

Goodwin also is not alleging that the town took a zoning enforcement action against him in violation of state law, Potter wrote. And because Goodwin had the opportunity to present the arguments in his lawsuit directly to council when it voted in October, judicial review, and not a declaratory judgment, is the only way he can challenge the town’s extension approval, the motion says.

While the lawsuit doesn’t name the council members alleged to have had improper talks, Councilman Chris Jacobson at the October meeting accused Markey Butler, who is now mayor, and former councilman Fred Kucker of having telephone conversations with Aspen Skiing Co. executive Don Schuster about Base Village. Butler and Kucker, who did not run for re-election, have acknowledged the discussions but denied they were inappropriate. The lawsuit says the so-called ex parte conversations were with a representative of the Snowmass Acquisition Co. (SAC), the Related arm that holds the rights to Base Village.

On Thursday, SAC filed a motion to join the lawsuit as an “indispensable” defendant.

As the developer and owner of the property, “SAC claims an interest that would be directly affected by the declaration sought by the plaintiff,” wrote the developer’s lawyer, Patrick Pugh of Denver. “Indeed, the plaintiff is specifically asking that SAC be declared to be in default and the [development rights] assignment to SAC be declared invalid.”

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