County commissioners sued for rezoning residential to mining

Claims of abuse of discretion, acting arbitrarily and capriciously and violating open meetings law

Posted: Friday, October 6, 2017 3:57 pm

by Lynda James, Senior correspondent, The Flume

Save South Park (SSP) filed a lawsuit in the Eleventh Judicial District Court, Sept. 14, against Park County Commissioners, High Speed Mining, LLC, High Speed Aggregate, Inc. and Lance Baller. 


In addition to SSP, the lawsuit also has 28 individual plaintiffs.


The lawsuit, filed under Colorado Rules of Civil Procedures 57 and 106, claim the county commissioners violated Colorado’s open meetings law, exceeded their authority, abused their discretion and acted in an arbitrary and capricious manner by rezoning residential property to mining.


The county has 21 days to answer the complaint. County Attorney Lee Phillips said the county had not filed that answer as of Oct. 2.


Save South Park was formed after the commissioners rezoned 28 acres from residential to mining for High Speed Aggregate Aug. 17. (See The Flume articles Aug. 3 and 25.)


A CRCP 106 can be filed in district court when one believes a government body exceeded its authority or abused its discretion.


A CRCP 57 is filed to receive a court’s authoritative opinion regarding the exact nature of a legal matter without requiring the parties to do anything. This is also called declaratory judgment.


The lawsuit states four claims:


1. The first is a declaratory judgment claim asking the court whether the application for the rezoning by High Speed Aggregate and Lance Baller is legal and proper when the owner of part of the property is High Speed Mining.


Also, the application did not contain a signed statement authorizing HS Aggregate or Baller to represent HS Mining. Baller is owner of both companies.


2. The second declaratory judgment claim asks if the rezoning application is legally deficient since certain required documents were not in the application.


Items listed in the lawsuit include:


a) Evidence of ownership and encumbrances.


b) A complete legal description of the property prepared by a licensed registered Colorado land surveyor.


c) Notice to the mineral estate owner as required by state law.


d) The required Current Conditions Map did not show three out of five mandatory elements, including all natural features, topography in 10 feet increments, and widths and grades of internal roads and accesses.


3. The third claim is a 106 certiorari review that the commissioners, as a quasi-judicial board, exceeded its jurisdiction or abused its discretion by approving the rezoning from residential to mining.


Six reasons are in this section that all begin with "The BOCC abused its discretion, and acted in an arbitrary and capricious manner, in approving the Application, and disregarded the plain recommendations of the PCPD (Park County planning department) and the PCPC (Park County planning commission) in the process, in violation of…." and then lists a section of the rezoning regulations and how it was violated.


These focused on the incompatibility of mining and residential zones, violation of eight goals of the Strategic Master Plan, and not deliberating the application and possible conditions of approval in public.


4. The last declaratory judgment claim is whether the commissioners violated the open meetings law.


The claim states County Attorney Lee Phillips read the resolution approving the rezoning without any county commissioner deliberation or discussion of the 11 conditions before approving it Aug. 17.


It also states that Phillips said the deliberation and conditions were discussed in two work sessions and an executive session.


The claim states the commissioners did acknowledge Phillips’ statement. Yet, no work or executive session was noticed on any agenda between the first hearing on July 27 through approval on Aug. 17.


The group


The group’s website, states its mission is to:


a) Support and promote preservation of natural beauty and peaceful mountain lifestyle of Park County;


b) Seek a sensible balance between mining development and quality of life for residents;


c) Strive to ensure that land use decisions receive adequate public vetting before being made, are enforced, and protect all residents, their property values and their natural environment.



Goals listed on the website are to seek funding to reverse the recent rezoning of land in a residential area to mining. The second goal is to work with the commissioners to establish 1041 regulations for mining.


Residents speak out


Peter Thayer and Wendy Kerner, members of SSP, stated in an email to The Flume they had lived in Fairplay over 20 years and moved here for its rural character and small town appeal.

"What used to be a small gravel pit across the highway has exploded into a huge industrial complex," they wrote.


They wrote after listening to the mining noise for the last two summers, it’s obvious that mining and residential are incompatible.


They acknowledged that mining is a necessary industry, but it seems Fairplay is being exploited by a television show.


If the mines were operating 16 years ago as they are today, they never would have bought here. They believe that they could not sell their house now for its full value.


"We simply want them to mine more responsibly," they wrote.


Another member, Kristin Barrett, wrote that it took a long time for her to join the grassroots effort because she thought mining just impacted a few people by the mine and that her secluded home would never be impacted.


"I know that mining is a necessary evil and that our lifestyles depend on mineral resources," Barrett wrote.


She was certain that the commissioners would not rezone residential land to mining and that they would stand up to the corporate mining interests to protect county residents. But it was rezoned. 


She heard from people living close to the mine that their property values were dropping. 


Recently, Barrett started hearing mining noise coming from Pennsylvania Mountain and Alma.


She said a few weeks ago Mosquito Creek turned an ugly blue gray color for about 20 minutes. It had been dry for a week, so it wasn’t mud or soil. She assumes it came from an old mine above her where some kind of work has been going on lately.


Barrett wrote that she did some research and found dozens of new mining claims have been filed in the past six months. Some were near her and friends of hers. 


The Flume found 19 active mining permits in Park County plus 10 active county gravel permits on Colorado Division of Reclamation, Mining and Safety. Three permits are for gemstones and the rest are gravel and gold or just gold. Federal databases weren’t checked.


"This is no longer someone else’s problem. It’s everyone’s problem," Barrett wrote. "I joined Save South Park to try to bring some restraint to the apparently unbridled pace of mining in this county."

She listed several questions every resident and potential resident should ask.

Questions like: are you next to BLM or USFS land? Do you own mineral rights on your land? Are you near a mine, or could property next to you be rezoned?


Is mining impacting groundwater, surface water, your peace of mind, the environment and habitats of animals, birds and fish?


"Is this kind of mining really our heritage? How do we get our county commissioners to listen to us?" she asked.


"Will the entire valley between Hoosier Pass and Highway 285 look like the area just north of Fairplay? Is that acceptable?"



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