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Black Forest Road on Ice

Commissioners approve upscale housing project, delay vote to carve road through park


A road might run through it:  County Commisioners - have delayed a plan to run through Black Forest - Regional Park until the courts have spoken. - MEGGEN BURGHARDT
  • Meggen Burghardt
  • A road might run through it: County Commisioners have delayed a plan to run through Black Forest Regional Park until the courts have spoken.

In the course of seven hours of hearings and public input over whether to put a road through Black Forest Park, last week's meeting of the Board of County Commissioners (BOCC) erupted several times into heated accusations and denials, mocking denunciations and sharp legal exchanges.

The county commissioners voted 5-0 to approve a preliminary proposal to build 161 upscale homes in an 800-acre subdivision on the park's northern edge. However, they voted 3-2 to defer a decision on whether to approve a two- to four-lane road -- Milam Road -- northward through the park to the Cathedral Pines subdivision.

The intermittently combative proceedings exemplified the extent to which the road-through-the-park debate has evolved over the past six months into a convoluted, multiplotted legal soap opera pitting development interests and local governmental growth policies against increasingly embattled efforts to preserve parks, trails and open space from encroachment.

The development was approved by the County Planning Commission in May and has the support of county staff, in part because developer Dan Potter has offered to donate 210 acres of his property to Black Forest Park if the county gives his development a thumbs-up.

The donation would nearly double the park's size from 240 to 410 acres, but the plan has excited considerable ire among park users who oppose encroachment of the secluded, heavily wooded property.

In an effort to stop the road, a lawsuit was filed against the county by a nonprofit citizens group called Friends of Black Forest Park. Members hold that a federal statute called the Sisk Act requires that land deeded to a county by the U.S. Forest Service -- as was the case with Black Forest Park in October 1999 -- can be used only for the purposes in effect prior to conveyance. That prohibition, they say, rules out a thoroughfare through the park to access a private development.

Last Thursday, the opponents' attorney, Ken Sparks, said that depositions he's taken indicate the commissioners hadn't read the park deed or become knowledgeable of Sisk Act constraints until approval procedures for Cathedral Pines were already far along. He charged the county with "bulling ahead" with a vote on the road even though district court is scheduled to rule on its legality in just two weeks, on Aug. 13.

"It seems to me you'd want to resolve the question of the lawsuit before you rush to judgment," he told the commissioners. "Normally when something comes up that hasn't been considered you stop and back up to reflect.

"If the court rules in favor of my clients on August 13, your work today will be for nothing."

What is logical

Claiming that extending Milam would destroy the park's serenity and reduce it to a fancy entryway to a high-end subdivision, road opponent Walter Lawson argued that Cathedral Pines is already accessible by way of three existing streets in neighborhoods adjacent to Cathedral Pines.

Residents of those neighborhoods held, however, that using their streets for that purpose would raise traffic to unacceptable levels and compromise the safety of their neighborhoods.

A traffic consultant hired by the developer reported that, without the Milam extension, peak traffic through the neighborhoods adjoining Cathedral Pines would rise to anywhere from one car per 55 seconds along nearby Holmes Road to one car per 188 seconds on Vessey Drive. County traffic engineer John McCarty said those streets are too circuitous and hilly to accommodate traffic at those volumes.

Commissioner Duncan Bremer suggested, however, that the county should take a harder look at enhancing those roads and making them the access to Cathedral Pines. "Those roads are susceptible to improvement," he said. "Even at their highest projected usage the volume would be one-eighth of their ultimate carrying capacity. It may not be the preference of county staff or those residents, but I'm wondering if making those roads the point of access isn't the more logical thing to do."

Not a good idea

Bremer provided an unexpected and dramatic twist to the proceedings by making a motion to prohibit construction of a road through the park until "all judicial proceedings currently under way are resolved."

The motion jettisoned the developer's attorney, Leonard Rioth, to the podium to protest that the County Planning Commission required that his client wait only until the Aug. 13 ruling of district court. Bremer, however, said his motion stood as made, which prompted Commissioner Chuck Brown to move for a reconsideration.

Bremer responded with a compromise motion that requires BOCC permission before construction of the road can begin. Commissioners Brown and Ed Jones voted against the revised motion and commissioners Bremer, Jeri Howells and Tom Huffman voted in favor of waiting until the courts have ruled.

Bremer pointed out that if the road is approved and built and the courts determine several years from now that it was a violation of the Sisk Act, then the developer would be forced to dismantle his road and restore the park.

"My thinking was that that wouldn't be a good idea," Bremer said. "What would happen if a favorable ruling by the district court were overturned by the appellate court? That process could take years, by which time the road would be built and paved with drainage structures fully in place. It would be necessary in that case to take out the road and reclaim the park, and even the applicant concedes that couldn't really be done. I wanted to avoid that situation."

Events in recent months suggest that Bremer's concern could be merited.

The Milam extension would enter the park along an imaginary boundary called a section line, a 30-foot right-of-way that Potter claims a 1921 deed to the Cathedral Pines site entitles him.

Angered by the Friends of the Black Forest's lawsuit and claiming that critics of his road are "a small group of anti-growth disgruntleds," on March 2 Potter bulldozed a symbolic swath into the park that felled a number of trees, some of them 80 years old and 60 feet high.

"I did that to make the point that I have a road reservation through the park, and I have a right to enforce it and fully intend to do so," he said. "I'll either build that road along the section line, or I'll build it through the park. Either way, it will get built, no matter who likes it or not."

Friends of the Black Forest, meanwhile, has collected more than 1,500 signatures in opposition to the proposed road, but the road is endorsed by the Black Forest Land Use Committee, the Black Forest Trails Association, the North End Property Owners Association, the Major Thoroughfares Task Force and the County Parks Department.

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