Battle over Tree Farm project in El Jebel heads to Colorado’s appellate court

Scott Condon
The Aspen Times
The Tree Farm proposal calls for 340 residences and nearly 135,000 square feet of commercial space centered around Kodiak Lake, across Highway 82 from Whole Foods.
Aspen Times file photo

The fate of the Tree Farm project in El Jebel is headed to the Colorado Court of Appeals as a citizens’ group continues to challenge the decision by three Eagle County commissioners who OK’d the project for residential and commercial development.

The Save Mid Valley group is trying to overturn Eagle County’s approval of the project in June 2017. The county commissioners approved the project by a 2-1 vote after a lengthy and contentious public hearing process.

The opposition group, headed by Missouri Heights resident Ken Ransford and represented by attorney Tim Whitsitt, contends the county commissioners didn’t follow several provisions of the county’s land-use regulations and housing guidelines while reviewing the project.

“The Tree Farm approval is fatally flawed in a number of ways and must be reversed and remanded to the Board of County Commissioners,” Save Mid Valley’s lawsuit said.

The group’s membership includes Basalt Mayor Jacque Whitsitt, acting as an individual.

The Tree Farm — a project across Highway 82 from Whole Foods — allows for as much as 514,000 square feet of mixed residential and commercial uses.

Eagle County is vigorously defending its process. The developer, Woody Ventures LLC, was allowed to join the litigation.

“The record is replete with competent evidence supporting the board’s decision to approve the project, and the decision must therefore be given deference by this court,” said the county and developer in their response to the lawsuit.

The county approval was upheld in Eagle County District Court. Save Mid Valley filed an appeal and recently learned a three-judge panel will hear the case April 7 in Denver, Tim Whitsitt said. Each side will get 15 minutes for a presentation and to answer questions from the judges.

Save Mid Valley is challenging the case on several technical land-use grounds as well as claims that the approval violates the county’s own affordable housing guidelines and regulations on traffic mitigation — two issues near and dear to the hearts of Roaring Fork Valley residents.

Landowner Ace Lane, the principal in Woody Ventures, received approval for 340 residences. Forty of them are rental units with rent caps, 10 will be sold with price caps and 150 are potentially reserved for local residents. The 150 units must be available for 60 days for local, qualified buyers. If local residents don’t purchase the units, they can be offered to non-residents at any price as long as they pay a 1% fee for affordable housing programs. Eagle County gave Lane credit for 50 affordable housing units for the resident-occupied housing program.

Ransford said his group is opposed to what it considers a questionable scheme. There is no guarantee those units will be purchased by local residents. They could easily end up as second homes, he said.

The lawsuit contends the developer is getting too much credit for a proposal that might not result in any affordable housing. Lane is getting credit for 100 units of affordable housing under the county formula. Save Mid Valley contends Lane should only be credited for 30 affordable units. The requirement was for 85 units of affordable housing.

In addition, the lawsuit contends Lane was given special treatment because the fee for non-resident buyers would be only 1% while the county housing guidelines call for 2%.

Eagle County and Woody Ventures countered that the county commissioners had the discretion to create a custom-built affordable housing plan.

“The guidelines are just that — guidelines, not regulations,” their answer states. “Eagle County’s guidelines are very flexible and the board has the sole discretion to determine whether an affordable housing plan meets the recommendations of the guidelines.”

They also argued that the plan provides sufficient mitigation under the guidelines.

“The county’s assistant housing director confirmed the affordable housing plan provides 100 ‘equivalent’ units — not only meeting but exceeding the guidelines,” their response said.

Another point of contention is traffic. Save Mid Valley claims there is “no credible evidence” to allow the county commissioners to determine the Level of Service on midvalley roadways would be preserved or improved by the Tree Farm approval.

The project is similar in size to Willits Town Center, where Whole Foods is located. The traffic from the project will primarily enter and exit Highway 82 at the Willits Lane stoplight.

Save Mid Valley contends that intersection won’t function at an adequate level once the 340 residences and nearly 135,000 square feet of commercial space is built. The only mitigation planned by the developer is to adjust “signal timing” at the Willits stoplight on Highway 82.

Save Mid Valley contends the project doesn’t comply with Eagle County land-use regulations that require levels of service to be maintained or improved.

“The Board of County Commissioners nevertheless approved the application,” the lawsuit said. “This constituted a clear abuse of its discretion.”

The defendants responded that Woody Ventures presented a proposal that will actually improve traffic flow at the key intersection.

“The current signal cycle at the intersection is 160 seconds. Colorado Department of Transportation has indicated it would allow the traffic signal cycle to be lengthened to 180 second. If the signal is retimed with a 180 second cycle length, the existing p.m. peak hour Level of Service would improve from Level of Service E to Level of Service C, and the delay would be decreased from 62.8 second to 31.1 second,” the county and developer reasoned.

“The record contains competent evidence that the project would not materially impact the area’s traffic mitigation and the board’s factual findings cannot be overturned.”

The two sides are sparring over numerous other issues, including whether the final project strayed too far from an earlier round of approval, whether a real estate transfer assessment violates Colorado’s Taxpayers’ Bill of Rights and other zoning-related points.

Construction of infrastructure started at the project site last summer and development of the first phase of residential and commercial space was scheduled this year. The developer will have to proceed at risk. If the approval was overturned, the application would go back through the review process.

It is unknown when a judgment will be reached by the court of appeals.

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