City Prevails in Land Use Appeal

edited April 2015 in General

The Colorado Court of Appeals issued an opinion today affirming the District Court’s dismissal of a land use case filed by Jeff Auxier. The complaint alleged that the Planning Commission exceeded its authority in and abused its’ discretion interpreting the Municipal Code which resulted in the issuance of a building permit to construct an accessory structure across the alley from Mr. Auxier’s property. Mr. Auxier may request a rehearing by the Court of Appeals or review by the Colorado Supreme Court of the Court of Appeals’ decision.

When Mayor Dickson learned of the Appeals Court Opinion he said: “I hope this opinion issued by the Court of Appeals will be the end of taxpayer dollars being spent on defending this case.”

Since 2013 the City has spent $40,278.80 defending the Planning Commission decision in District Court and most recently the Colorado Court of Appeals.

Colorado Court of Appeals Opinion

Comments

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  • Yay. Yet another Auxier fail that the citizens of Salida get to pay for. I hope someone is keeping track of how much stuff the city could have done with the resources it wastes defending itself against this low opportunity cost lawyer.

  • Well,

    This interesting issue goes back a fair number of years. Several years ago there was the Sacket overlay project driven by a couple of citizens to prevent McMansions in the area east of downtown. Mr. Auxier was, as I recall, in his response to those who were driving this small form of a citizens initiative, reasonably civil, but made sure they knew he was a lawyer and did not want these properties, especially his, included. As a result that block was excluded from the overlay. The purpose of the overlay was to prevent some types of construction. Interestingly, the type that Auxier is angry about would have been included. It sort of seems that what goes around comes around.

    Jay

  • Also to be fair in comment, there were other city blocks, which also not included, because the majority of owners did not want to be in the overlay. Mr. Auxier was most assuredly not the only individual who did not want in. Dara was the city planner when this all went on. Jay

  • Well, sometimes you dish it, and sometimes you take it. The price of standing up.

    Jay, I'm about 98% sure your comment "[Auxier made sure we knew he was a lawyer]" is mistaken. It's not my way. I recall commenting on the Historic Overlay issue: "[The Historic Overlay District is being thrust upon a reluctant majority by an enthusiastic, well organized minority]" and that's it. My comment should be public record. You could CORA request it. If I'm wrong, kick it out here on the Citizen.

    And Jay, the building that led to this law suit IS in the historic district, as plainly stated in Observation 1 of a staff memo of December 8, 2011. :-) Walk by in the alley and see if it looks "historic." Or if the owner has a legal setback on the southeast side. Thanks for the second clarification.

    The fees. The city likes to talk about the fees. What they don't talk about is this: Facts support the conclusion that Hanlon and MacDonald decided to defend the suit, without ever getting approval of council. Other cities (Colorado Springs, for instance) consider the decision to defend to be a "formal action" subject to the Colorado Open Meeting Laws. They have their city attorneys write public memos that are included in public meeting packets, and then vote on the decision to defend in open meeting. Perhaps neither MacDonald nor Hanlon wanted to publicly discuss the facts of the case. If the issue had been publicly discussed in open meeting, maybe we wouldn't be where we are now.

    Hanlon has benefitted most. No open meeting decision to defend, no need to clear it or explain it, $40k+ in fees to his firm.

    I don't want to be doing this fight, and I regret the cost to the city. Yet what has gone on and continues to go on in this city government is so fundamentally wrong that it needs to be battled. This government has too long treated most Salidans as subjects, not citizens. My case is but a symptom of the ailment. One or two members of government exhibit audacity in grabbing unauthorized power. Three or four think they know all and know best. They withhold information from the public and from fellow council members, effectively stifling public comment and inspection. So far they've made some very bad business decisions and exposed the city to large financial risks and unduly burdensome future expenditures. They recently (February 18, 2015 work session) evidenced that they will go on same as always, without full and fair disclosure of multi-million dollar seemingly harebrained plans.

    If they have good plans, why did and why do they hide them from us?

    “I have no doubt that the nation has suffered more from undue secrecy than from undue disclosure. The government takes good care of itself.” ― Daniel Schorr

  • Here here, Steve. I think "the cost of standing up" should be paid by the individual who made the citizens of Salida take up this unnecessary cost.

  • Read this before you start arguing: Read the city's recent community survey to get some ideas about the issues that have the potential to unite us. Here are the top contenders: Affordable Housing, 59.8% of Salidans think Affordable housing is one of the top three most important issues facing our community. Streets topped the list of needed improvements at 56.8%. Controversy was the perceived most serious problem facing our community at 38.9%. Look at the mood on growth management, 45.5% felt the process should be expanded to involve more citizen input. Those of you, or us who want to lead, need to be listening with more tolerance. Let the light shine in. Access to the judicial system is a fundamental right. The alternative is chaos. Love liberty and applaud that we live in a nation of laws. Not perfect, but better than any systems I have observed. I believe the citizens of Salida are being run over rough shod by the present city administration and block of 4 votes. I for one am open to compromise on most of the important issues of the day, but those discussions need to be under public scrutiny. I have not gone to the law yet, however, if I believed my rights or the citizen's rights were being trampled in a way that could be proven illegal, I would go there in a heartbeat.
    Let's applaud freedom of speech and assembly, and give each other respect as we exercise our freedoms and legal rights. For every mean spirited comment directed at Auxier, 10 citizens go to him to express their appreciation for his willingness to stand up to the city. How do I know this? It is an educated guess based on my own experiences and some discussions with Jeff. I have faced off with this city politically a few times. How do I keep the faith to continue in this fight when certain people in the city administration look at me with disdain and refuse to speak to me? How do I forge on when I am criticized a little more vigorously than I think appropriate? For every mean spirited comment there are more than 10 who thank me for my efforts. Every person has their season for service and their way of serving. I would be a lot more cautious about what I say, if I was operating a small business in this town. I might keep my mouth shut, if I was 10 years older and living alone. Jeff is sticking his neck out for those of us who do not have the time, inclination, or flexibility to be comfortable sticking our necks out. Authorities should not go unchallenged and unfettered. Applaud our rights as citizens and be respectful when you criticize those who are willing to go into the public fray. This present city government lost 2 out of 3 seats that were up for grabs in the last election. Before that they had a lock on 6 out of 7 votes. Mike Bowers has breathed free and independent air every day he was in office. Hal Brown and Melody Hallett have joined Mike in requesting more disclosure and a more accountable city government. Those of you contending with the dissenters, need to think about how you would want to be treated, heard, and represented, if the four votes were reversed and the shoe was on the other foot. In fairness, I should say I frequently disagreed with Don Stevens and Jay Moore, but they were both capable of independent thought. The city lost the battle over home rule which they brought forward on the basis of a private meeting between Dara MacDonald and a very small group of as yet unnamed citizens. They were defeated in the recent 2A initiative ballot issue. This community is narrowly divided on the important issues of the day. The answer is not the continuation of the battles. The answer is to find common ground and welcome more citizen participation. The current city council, the committee of four, is threatening to overturn the wishes of the voters on the 2005 initiative on the 2 % sales tax. They need to forge a compromise with others on the council and bring an initiative to the voters that they can all stand behind. Short of that, these divisions will continue to plague our community. Let's focus on what we can agree on. Again, read the city's recent community survey to get some ideas about the issues that have the potential to unite us. Here are the top contenders: Affordable Housing, 59.8% of Salidans think Affordable housing is one of the top three most important issues facing our community. Streets topped the list of needed improvements at 56.8%. Controversy was the perceived most serious problem facing our community at 38.9%. Look at the mood on growth management. 45.5% felt the process should be expanded to involve more citizen input.
    It is time to stop with the devisiveness and pull together. Billy Carlisle, Salida Citizen

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