Road to NowhereIt's a golden and serene late summer Sunday in Black Forest Regional Park, a 240-acre pocket of sun-dappled, heavily wooded tranquility 20 miles northeast of downtown Colorado Springs.
The air is heavy with the resinous tang of pine trees baking in the August heat. The woods echo with bird song. Off in the distance, trees swish in pinecone-scented breezes. The flap of bird wings is audible in stillness of this magnitude. The raspy chigger of in-flight grasshoppers can be heard hundreds of yards off. The crunch of footsteps is unnaturally loud.
To the south and west is Colorado Springs -- silent, distant, dwarfed by the panoramic backdrop of Pikes Peak and the Front Range.
What seems so odd is the utter absence of the thrumming mini-roar that constitutes the ever-present soundtrack of city life. Excepting the immediate aftermath of a huge blizzard, peacefulness of this magnitude no longer exists in Colorado Springs. In Memorial, Bear Creek, Fox Run or Monument Valley parks, urban noise and heavy, ongoing traffic is part and parcel of the park experience.
A decade of leapfrog growth, escalating traffic congestion and metastasizing sprawl surrounding Denver and marching south and east through Parker, Castle Rock, Monument and Colorado Springs has made this road-free park rarer than a vegetarian cattle rancher.
If the El Paso County government gets its way, however, things won't remain this way much longer.
The road to Potterville
By this time next year, if Dan Potter of King's Deer Development Corporation has his way, what is now an 805-acre parcel of open land called the Robison Ranch, just north of the Black Forest Regional Park, will almost assuredly be a prestigious, high-dollar subdivision called Cathedral Pines.
The development -- now an expanse of wooded land -- will consist of 161 trophy homes. And the pine cone--covered pathways that currently weave through the Black Forest park will likely become a paved, 35- to 40- mph throughway that serves as a scenic entrance for residents and visitors driving into and out of the upscale subdivision.
In May, opponent Rich West, whose property abuts the park to the west, opined, "Potter is looking for a private access through a nice, forested area to make his high-dollar houses higher dollar."
But his proposal to carve a road through the park has the support of the county's lawyer, planning department and elected county commissioners. They envision the thoroughfare, Milam Road -- which currently ends at the park's southern edge -- as a major thoroughfare in the county's transportation future.
Members of the five-member, all-Republican Board of County Commissioners say they've been fair in weighing the development and road plans. But opponents claim that the county's elected and appointed officials have often inappropriately exhibited considerable enthusiasm and haste while expediting Potter's proposal through the approval process.
"This, to me, is the biggest issue," said opponent Gary Schinderle. "Every time you went to a public meeting, instead of the burden of proof being on the developer, it was obvious to us that the county had decided long before what their final decision would be."
Despite efforts to usher the project through, Potter's proposal has prompted a hornet's nest of opposition from thousands of park users and nearby residents, which organized in February as Friends of Black Forest Regional Park. In a matter of weeks, Schinderle, who is part of the group, and other activists collected more than 1,500 signatures in support of their cause and filed a lawsuit against the county claiming they cannot legally approve the road through the park.
Since then, they have repeatedly and unsuccessfully asked the county to slow down until the courts issue a ruling. They point out that if the road is built, and they then win the lawsuit prohibiting the road, the damage of the already-built road will be irreversible.
In addition, in July the road-though-the-park plan garnered ridicule from a statewide watchdog group that tagged the idea as one of the 10 worst examples of irresponsible development in the state this year.
However, another group of nearby residents approve of the road plan, mainly because they don't want the county to consider another option: Three current roads -- Holmes Road, Vessey Drive and Tahosa Lane -- already access the proposed Cathedral Pines subdivision, and could provide a way in and out.
But making those roads the primary routes into and out of Cathedral Pines would double the traffic and jeopardize the safety of 200 people already living there, said resident Marsha Hannig, who lives on Holmes Road. In addition, county traffic engineer Jon McCarty said the streets are circuitous and hilly, and it would be expensive to bring them up to county standards.
But, at a July 26 meeting, County Commissioner Duncan Bremer, whose district includes the area in question, suggested the county take a closer look at enhancing the three roads and make them the access routes 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."
However, during an earlier meeting, when commissioners approved the development portion of the plan, Commissioner Tom Huffman expressed surprise at all the hubbub.
"There are lots of highways running through parks in the state and so I don't see how running a road through it no longer makes it a regional park," he said.
The most important citizen
A wide cross-section of observers is paying close attention to this battle for the park. And in some ways, the outcome of the lawsuits and level of opposition to development -- long considered God-given and inviolate in El Paso County -- could set a precedent in the growth debate for years to come.
As have developers before him, Potter has publicly dismissed critics of his road plan as "a few disgruntled neighbors ... who are using a lawsuit as a tool to force their anti-growth NIMBY [Not in My Back Yard] agenda into the process and interfere with private property rights. In reality, they want to keep the park as their own private open space."
In recent years, however, those blanket assertions often carry more bluster than reality. Environmentalists and open-space preservationists are increasingly being joined by citizens of all ranks and questioning developers' entitlement to build whatever, wherever they want.
The development boom of the 1990s saw the gobbling up of open space, park and agricultural land, and Colorado Springs is expected to grow at a rate that could double the size of the city over the next 20 years. For the past several years, polls in El Paso County and throughout Colorado show growth and sprawl as the public's No. 1 concern.
That means that policymakers -- whose campaigns often carry the largesse of developer interests -- must increasingly weigh, in public forums, the growth agendas of private development against demand for parks and open space.
Once you get down to its bare-butt essence, the battle for Black Forest Regional Park essentially comes down to a single question: Who is the county government's most important constituent? The private developer, the homeowners or the taxpaying public?
In El Paso County, officials have earned a solid reputation for granting developers -- in this case, Dan Potter -- carte blanche.
Open-space activists and park preservationists, meanwhile, believe that priority should be given to the taxpayers who, in this case, own the Black Forest Park. Potter, they concede, has a right to develop his property, but not to use the park as a scenic entranceway to his development.
And the other group is the landowners, who don't want to have to accommodate the increased traffic leading to the Potter's development. Many of these neighbors believe that, when it comes to a choice between their own solitude and property rights or the park, the park must be sacrificed.
Some have switched their positions during the process. Take Barbara Nugent, director of county parks, who said in an April interview that "there are no roads along the park's west, east and northern boundaries, and a lot of people who frequent the park value it precisely because it's so undeveloped and free of urban noise, bustle and stress. To them, putting a road through that peace and quiet is unthinkable."
Nugent also noted that, "Speaking from my perspective as parks director, I'd prefer that the park remain intact. I've testified in the past against fragmenting land, and there aren't many intact tracts of forest left in Black Forest."
However, Nugent voiced an altogether different viewpoint at the July 27 meeting of the Board of County Commissioners. With brisk and cheerful conviction, she fell into line with the directors of county planning and transportation to heap praise on Potter and roundly endorse a road through the park. Extending Milam, she told the commissioners, will improve the physical health of the park and benefit the city and county.
Crown jewel or fake?
Nugent's seesawing on this issue is all but preordained by the cross-purpose muddle of agendas that has driven county planning since the early 1970s.
In 1974, the Board of County Commissioners approved the Black Forest Preservation Plan, a planning document that declared it county policy to discourage and minimize construction of major roads within the 90-square-mile timbered area that gives Black Forest its name.
Thirteen years later, in 1987, county commissioners approved the Major Transportation Corridors Plan, a plan that envisioned a network of north/south and east/west thoroughfares throughout the Black Forest area to accommodate transportation needs created by development in coming decades.
In effect, the current conflicting master plans both discourage and encourage building a road through the regional park.
This institutionalized cross-purpose of growth interests and preservation priorities both frames and drives the battle for Black Forest Park. The contradictory plans also give Potter room to argue that his road through the park is all but mandated.
"I'm merely complying with county documents that have been around for 14 years," he said in April. "Yes, the road serves my interests, but I can tell you this: Even if I didn't want the road, the county would make me put it in."
The county's assistant director of planning, Carl Schueler, dismisses that idea of a road mandate. Schueler pointed out that the Corridors Plan is an advisory, not a binding document. "Frankly," he said, "the Corridor Plan is outdated in a number of ways, though it's still used as a planning tool."
Others dismiss entirely the notion that building a road through a park could ever be considered a healthy or preferred option.
In July, the day before the county approved Potter's development, the Denver-based public-interest organization Colorado Public Interest Research Group (CoPIRG) identified Cathedral Pines as one of the top 10 most offensive development proposals in Colorado as part of its annual Sprawl of Shame awards.
Few counties in Colorado -- particularly amid the heated statewide debate over smart growth -- would be obstinate enough to endorse building a road through a park they had only two years ago been termed the "crown jewel of the county park system," they said
The following day, on July 26, Potter made his pitch to the Board of County Commissioners, which approved the project unanimously.
At that meeting, Potter mockingly denounced CoPIRG's derogatory award, dismissing the environmental and consumer group as the "Colorado Propaganda Regurgitation Group."
The legal muddle
For most of the 1990s, Black Forest Park was an isolated tract of land that the county leased from the U.S. Forest Service under a special use agreement.
In a September 1999 deal designed to benefit of both parties, the Forest Service negotiated a land trade with El Paso County that gave the county 160 acres of the current park. The county bought another 80 acres of the heavily wooded parkland for $320,000.
Almost as soon as the praise for the county's crown jewel began to fade, Potter began touting plans to build a road through the southwestern, 80-acre portion of the park. As early as October 2000, Potter was promoting his development proposal -- including the extension of Milam Road through the park to his development -- to county planners.
The developer sweetened his proposal considerably by offering to donate 208 acres of open space northwest of the current park to the county -- the least-developable portion of the Robison Ranch property -- which would nearly double the park's size.
Opponents began laying the groundwork for their arguments against the road, and eventually found the basis of what has become their main legal arguing point against the plan. A federal law -- the Sisk Act -- stipulates that lands deeded to a county by the U.S. Forest Service can be used only for the purposes that were in effect prior to conveyance.
U.S. Forest Service officials who were part of the transaction, have indicated they too believe the Sisk Act precludes building a road through the park.
Schinderle, whose home lies on the route where the road would extend, became one of the lead organizers of what has since become the Friends of Black Forest Regional Park.
With their high-powered legal council, Colorado Springs attorney Ken Sparks -- a longtime Republican campaign contributor and the former law partner of recently appointed Colorado U.S. Attorney General John Suthers -- the group filed suit against the county. That suit demanded a halt of the approval process until the courts decide whether Sisk Act prohibitions preclude a road in Black Forest Park.
However, in the case, which headed to court last week, Potter's attorney, Leonard Rioth, and El Paso County attorney Mike Lucas have maintained that the Sisk Act also includes language that allows the property to be used for "local government purposes."
"We believe that a county road that has been included in the county's Major Transportation Corridors Plan since 1987 constitutes local government usage," Lucas said in May.
The county's lawyers have also argued that the Sisk Act does not apply because the land in question consists of slightly more than 80 acres. The federal law applies to parcels of land 80 acres or less.
The battle escalates
When Friends of the Black Forest went non profit in February, hired an attorney and waged a high-profile petition drive against extending Milam Road, it was clear that the group was going to be a noisy force in the park debate.
It was at this juncture that Potter made his now-famous "statement."
On March 2, without obtaining any permits or written permission, Potter bulldozed a swath into the park along the boundary (known in legal terms as a "section line") where he wants his road to go. His maneuver leveled a number of trees, some of them 80 years old and 60 feet high.
Potter insisted that he informed county attorney Lucus of his intentions prior to acting. Lucas, though, denies that claim. The attorney says he ordered Potter to cease as soon as he learned of his actions from an angry telephone call from a neighbor's home whose property abuts the section line. Potter, however, was not cited for destruction of property or any other charges.
Potter believes that a provision in a 1921 deed on the Robison Ranch property, the site of Cathedral Pines, gives him a 60-foot right-of-way for road construction along the park's western boundary.
The developer remains defiant. "I cut down those trees to make a point to the landowners trying to block my road that I have a road reservation through the park, that I have the right to enforce it, and that I 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, the road will get built, no matter who likes it or not."
Legal cat and mouse
On March 27, nearly a month after Potter's bulldozer stunt, Friends attorney Sparks filed a lawsuit asking the court to rule on the Sisk Act issue, in part to slow the county down.
Sparks and his clients allege that by that time, county planners and other officials had fully embraced the road-through-the-park concept and were proceeding with the approval process full throttle.
The lawsuit had no such slowdown effect, however, and the county pressed forward with plans to review Potter's development request at the April 23 County Commissioners meeting.
As a result, Sparks charged the county with "bulling ahead" by voting on the road issue before the courts could rule on its legality.
"It seems to me that you'd want to resolve the question of the lawsuit before you rush to judgment," Sparks said. "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, all your work to date on approving this will have been for nothing."
In light of Potter's March 2 action, Sparks was concerned that a thumbs-up from County Commissioners at the April 23 meeting would be taken by Potter as approval to launch work on his road. Sparks obtained a restraining order and petitioned for a permanent injunction to stop the county from approving the road until the courts had ruled on the Sisk Act.
In a game of legal cat and mouse, county attorneys Jay Lauer and Mike Lucas responded to Spark's move by waiting until April 20 -- two working days before the commissioner's April 23 meeting -- to petition to move the case from district court in Colorado Springs to Federal Court in Denver.
However, Lucas and Lauer notified Sparks of their action by mail, not by telephone. Sparks learned that the case had been moved at the last minute only by chance late that Friday afternoon, thereby avoiding what would have been a rude surprise on Monday morning.
The maneuver backfired badly on Lauer and Lucas, however. The following Monday, U.S. District Court Judge John Kane ruled the county action "improvident," opening the door for Friends to seek reimbursement from county taxpayers for the considerable legal costs created by the county maneuver.
In a June ruling, Kane ordered the El Paso County Board of Commissioners to reimburse Friends $13,000 in legal fees. He also delivered a blistering excoriation of Lauer and Lucas, characterizing their maneuver as "unreasonable," unprecedented," "vexatious," "egregious" and "just phenomenal."
"This case, to my reckoning, is the first time that I have ever seen a local government attempt to remove a proceeding from a state court involving the enforcement or the restraining of its own laws," Kane wrote in his decision. "And the fundamental principle of comity between the state and federal government just augers against this so clearly that I frankly am surprised that this was even attempted.
"I know of no case ... in which such a thing has happened in the past," the judge fumed, adding that the action "flies in the face of reason and my sense of propriety."
unrepentant. Conceding that he hadn't bothered to read the transcript of Kane's decision, Lucas dismissed his ruling shortly after it came down as "an erroneous application of the law."
"I'm befuddled and confounded as to why the judge ruled that way," he said at the time. "Frankly, if this is indicative of how Judge Kane would have treated this case had it remained in federal court, I'm thrilled that it will be heard in district court."
All of this angry posturing is a long way from the serenity of the county's crown jewel of its park system.