April 6, 2007
Citizens Rip Will-O-Wisp Developers: Next hearing on Tanglewood project is April 11
By Pamela Lawson
Staff Writer, High Timber Times
One by one last week, as citizens stepped up to a podium in the hearing room of the Park County commissioners in Fairplay, one thing was clear: They had spent the time and money to state their cases in detail.
The information presented formally on poster boards and tabulation charts by several residents could affect the commissioners’ ruling on the 1041 water application filed by the Will-O-Wisp Water District.
That application, if approved, involves building an infrastructure to extract water from Elk Creek to serve a 450-unit housing development being proposed in the area.
The obvious state of readiness by citizens was designed to bolster their case that there has been an information void on the part of WOW representatives, legal counsel, consultants, developers and other related interests.
And the disjointed public comment period that cut some residents off sooner than others prompted one citizen who is an attorney to decry the practice as illegal, and he scolded the county attorney for condoning it.
Legal counsel for WOW had dutifully prepared documents addressing questions raised at previous hearings by citizens, commissioners and staff, but it did not go “above and beyond” to establish its credibility, according to the assessment of many who were there. And it did not squelch concerns over property rights and water rights that have now resulted in pending litigation by a homeowner association and two landowners.
Residents fill a small hearing room prior to a hearing in Fairplay on March 28th. The residents were there to hear testimony regarding water rights for a proposed subdivision.
“We believe we have answered all criteria,” WOW attorney Richard Toussaint said early on in the eight-hour hearing, which was ultimately continued until April 11.
(Land Securities Investments, a group affiliated with the company building the Conifer Town Center, entered an agreement with Will-O-Wisp more than two years ago when it bought property in Pine Junction and needed to procure water and sewer services. The project, called Tanglewood, is a joint venture between that business and Ryland Homes.)
County planner Lane Wyatt did address the “moving target” label that had been given the project because of many details and changes that had occurred along the way, but he said those changes allowed the applicant to “make the project better.”
The original application was submitted in June 2006 and had been postponed by the applicant five times since then, for various reasons, until last week’s hearing.
But Pine resident Don Reyerson didn’t buy Wyatt’s line of reasoning or Toussaint’s claims that they had addressed all criteria.
Reyerson, who once worked for large out-of-state power utilities and was responsible for building three large power plants in rural areas, knows how critical it is to maintain credibility with the public, he said.
“You did not do your job,” Reyerson told the heavy hitters seated in two front rows before the commissioners. “It’s the applicants job to properly staff the application, to provide the commissioners with complete information.”
A Row of Developers, legal council and consultants, affiliated with the Conifer Town Center and Ryland Homes, listen to a citizen during a 1041 water application hearing last week.
Arguably, Reyerson had a much bigger budget when he worked for the large utilities, and he had 120 attorneys at his beck and call, but the principles still stood for the smaller utility and the developers affiliated with it, he later said, emphasizing that the worst thing a utility, public water district or other entity can do is provide commissioners with incomplete or inaccurate data.
“That puts the elected officials in a very embarrassing position, and you don’t want to do that.”
Among those who testified was Colorado Water Conservancy District attorney James Culichia, who told commissioners that there were “many shortcomings” in the application — everything from water storage to impacts to wildlife and residential wells.
“Lane Wyatt said the application was complete, and I disagree with that,” Culichia said. “It’s a vast improvement over the 2006 (version of the application), but it still falls far short of what needs to be met.”
Roughly 125 people weathered icy roads to attend Wednesday’s hearing, crowding themselves into the small hearing room and two additional hallways to hear testimony.
County staff and Toussaint focused on three topics they believed were important to residents, details for which they believed they had necessary data: water rights, adequate water to fight fires in residential areas, and impacts to Elk Creek, including aquatic life.
Toussaint and the staff offered up experts in in-stream flows, and they debated the “what ifs” of a healthy stream versus one impacted by a reduction of water flow due to nature or development. They based their data on the drought of 2002, believing that to be a worse-case scenario in recent years.
Still, they offered no rebuttal when Woodside resident Briggs Cunningham shared what appeared to be new information regarding stream-flow data that dated back decades. Cunningham’s research showed that drought conditions 60 to 70 years ago had dropped below 2002 levels, which would alter the applicants’ predictions on impacts to Elk Creek.
In addition, resident Robert Nevadomski presented material and aerial photos dating back decades that he believed provided evidence that WOW’s documentation for water rights and the location of a planned reservoir in the Woodside subdivision were bogus.
Accusations leveled at the applicant were incendiary, at times, when residents like Vera Dunwody accepted the applicant’s challenge to prove ownership of the Glassman Ditch decree, and she did so, she said, by filing a lawsuit.
And resident Michael Schaefer, a former trial attorney, felt confident to call WOW’s claim to the 1913 Glassman water decree a “fraudulent lie.”
He also challenged the commissioners decision approve the final plat on the developers’ project before they ruled on the 1041 water application, citing a state statue approved nearly 30 years ago.
Resident Dan Hayman, who owns senior water rights on Elk Creek, charged that information provided by a water commissioner was incorrect during testimony months ago regarding the 1041 application.
And other concerns involve claims by Briggs Cunningham that he found discrepancies in data between July and October 2006 regarding the number of water right claims under the listings of Woodside and Glassman on a website called the Colorado Decision Support System, which keeps tabs on such details. In running some comparisons on data, he discovered that the number of rights rose from five to eight during that time frame, he said. He wanted to inform commissioners of the possible discrepancy on Wednesday, but his testimony was cut short.
“I wanted to prove I was not talking through my head, but I was unable to do so.”
Reyerson is still surprised by the events that unfolded Wednesday and what he termed a lack of effort by the applicant.
WOW representatives explained during testimony that their water rights allowed the removal of water from Elk Creek. The water would be returned to Wisp Creek, bypassing a section of Elk Creek that runs through, or near, the properties of several hundred residents.
But spending about $1.5 million to remedy the problem and return the water to Elk Creek wasn’t a possibility, Toussaint had said during testimony.
“Ryland is probably considering future developments along the corridor,” Reyerson said this week. “It appears to me that they are really spoiling their public relations, and people won’t forget.”
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