This is just naked prejudice, poor satire, and mild hate speech.  I blame white leftist bigots.

Court of Appeals No.: 08CA0890

Elbert County District Court No. 07CV48
Honorable Jeffrey K. Holmes, JudgeCitizens for Responsible Growth, Elbert County, a Colorado nonprofit corporation; Laura E. Shapiro; and John T. Dorman,  Plaintiffs-Appellees,
v.
RCI Development Partners, Inc., a Colorado corporation, Defendant-Appellant

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by: JUDGE KAPELKE*
Graham and Booras, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)

COLORADO APPELLATE RULES  35(f)  Paragraph 2

No opinion of the Court of Appeals shall be designated for official publication unless it satisfies one or more of the following standards:

(1) the opinion lays down a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continuing public interest;
(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes;
(4) the opinion resolves an apparent conflict of authority.

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“The Court of Appeals decision is based solely on this procedural issue [timely filing of the original lawsuit], and its opinion does not address the validity of the BOCC’s action.”  West Elbert County Sun, 6/4/09.

Hold on!  The West Elbert County Sun would improve its credibility if it did not present partisan opinions in news stories.

The Court of Appeals did not lay down a new rule of law, did not alter or modify an existing rule, did not apply an established rule to a novel fact situation, did not find an issue of continuing public interest, did not find a shortcoming in existing common law, did not find an inadequacy in statute, and did not resolve an apparent conflict of authority.  If any one of these conditions had been met, the Court of Appeals would have published it’s opinion as legal precedent.  Since the opinion was unpublished, not one of these conditions was met.

I guess we’re to assume the merits of the plaintiffs position on limiting the BOCC’s authority are more important than the plaintiff’s obedience to legal rules of procedure.  According to the West Elbert County Sun, John Dorman intends to appeal his case to the Colorado Supreme Court if he can’t get the Court of Appeals to change its mind, so the case can be heard on the merits.  The Court of Appeals, however, “generally employs the same standard of review as the trial court in its review of the Board’s action.”  [Citizens for Responsible Growth v. RCI, Unpublished order 08CA0890, May 21, 2009.]   It appears the Court of Appeals already considered the case’s merits or lack thereof, found the trial court to be “clearly erroneous” on the question of subject matter jurisdiction, wisely avoided further enabling this political issue, and ordered the trial court to dismiss the case.

Another key fact mentioned in the Court of Appeals order, which I don’t believe has been mentioned in all of the press about this case, is that when the BOCC approved the SVV project, they did so upon the recommendation of the Planning Commission.  The Planning Commission’s purpose is to interpret the county master plan, which they did in this case to a reasonable conclusion that the SVV development should be approved.  The plaintiff’s case has always been cast against the BOCC in the press, as if the BOCC acted in violation of the master plan, when in fact they were simply agreeing with the interpretation of the master plan given them by the Planning Commission–which is what they usually do!

In effect, the plaintiffs want neither the BOCC nor the Planning Commission to interpret the master plan.  Who does that leave?  Judges–the branch of government the left uses to advance their “progressive” agenda.

For the uninitiated, “progressive” means living a poorer life with fewer jobs, less economic activity, less energy available, in smaller living spaces, driving in less safe cars, enduring higher taxes with less income under private control, acting under more regulation of all aspects of life, with fewer opportunities to engage in commerce and few opportunities to act without the approval of quasi-public socialist committees.  Progressivism stifles freedom and causes stagnation and decline.  Progressivism’s only beneficiary is the governing class.  Everyone else, even the intended beneficiaries of progressivism, loses.

Conservative newspapers, conservative radio, conservative tv, and conservative internet communications are all booming, and all the left can think about is how to shut them all down. If leftist progressivism is so wonderful, why can leftists only get people to cooperate with them by using force, coercion, threats, intimidation, and subversion?

The 1st Amendment.  Use it or lose it.

Did Mr. Hill forget the recall phase of Elbert County commissioner terms and jump straight into the next election cycle’s rhetoric? (more…)

Essay contest winners receive commissioner award today.

Commissioners’ Award 18 megs, wmv file.

Note: The above panels are excerpts from a larger package that also contains details for a number of smaller funds.

Mr. Happel objected to the form of the meeting.

Metli Stands Up for Property Rights

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MASTER PLAN ADVISORY DOCUMENT CONFIRMATION:

Planning Director Richard Miller came before the Board to confirm that the Elbert County Master Plan is an advisory document pursuant to C.R.S. 30-28-106(3)(f).  Richard also stated that in April 2007, the Governor signed House Bill 07-1246 into law which modified the above statute and states in part the “Master Plan of Counties or Regions shall be an advisory document to guide land use development decisions; however, the plan or any part thereof may be made binding by inclusion in the counties subdivision, zoning, planning development or any other similar land use regulations after satisfying the notice of due process and the hearing requirements for a quasi-judicial process.”  Under HB 07-1246, the Board of County Commissioners may decide to make a portion of the Master Plan or all of it, binding by inclusion into the zoning and subdivision regulations.  Any amendments to the regulations must be accomplished by the public hearing process before the Planning Commission and the Board of County Commissioners.

Since the Community & Development Services Office, Planning Commission and the Board of County Commissioners have viewed the Master Plan as an advisory document, Richard recommended that the Community & Development Services Office should move forward with the public hearing process to remove any reference to the Master Plan in the County’s regulations.

The Board approved the recommendation and move forward with a public hearing.

Open Letter to the BOCC,

Here are the web links for advertising in the WSJ.  Please, take out an ad.  Invite businesses to set up shop in commissioner district 3 in Elbert County, Colorado.  Tell them we don’t need their tax revenue.  Tell them we won’t impose onerous regulations on them.  Tell them we have a labor force in the western portion of the county that is ready to work for them.  Tell them Elbert County wants to work hard for them.

We have land and water in the central portion of the county.  We can support industry here.

Please commissioners, a new retail outlet here and there won’t fix our local economy.  Americans know how to produce things.  Take the shackles off of us and let us have a chance to compete in the global economy.

Lead, or get out of the way.

Wall Street Journal Advertising

Wall Street Journal National Edition Advertising Rates

Contact Them!

Did you read the above?

Here’s the problem.  What Mr. Thomasson described isn’t democracy.  The room contained a self-selected group of people who were 99% in favor of regulatory planning.  The planning commission members were in favor of regulatory planning.  They brought letters from their friends who were in favor of regulatory planning.  Mr. Miller from county planning had switched his recommendation to also favor regulatory planning.  To be generous, from all those sources there may have been 200 votes in favor of regulatory planning.

Those 200 non-representative people were busy determining (amidst applause, self-congratulations and jokes) a county policy about regulatory planning that will have the authority of governing law over all of the land owners in Elbert County.  They had a good ol’ time manipulating a system that most people in the county don’t even know exists. 

Not one of those people in the room were elected to represent the people they were, effectively, governing.  That is not democracy.  No way.  No how.  Not even close.

Before they can reasonably connect the word “democracy” to “regulatory planning” in Elbert County, Mr. Thomasson and friends will need to put it to a vote of all the people.

Acting like thugs and courting sympathetic judges does not earn them the right to claim democracy.

Elbert County needs 2 planning commissions.  One for districts 1 and 2, and another for district 3.

Land owners in districts 1 and 2, who have all the economic options they need in nearby Douglas and Arapahoe counties, can keep the current socialist planning commission and socialist master plan.  They can regulate themselves until the cows come home and sleep soundly each night in the knowledge that no one’s freedom in districts 1 and 2 will interfere with their anointed collective will.

Land owners in district 3, who need economic growth and real jobs in capitalized businesses to support families, provide benefits, make for career paths, and bring about the educational and cultural opportunities that attend to a modern economy, would have a new planning commission.  This new commission would have the needs of district 3 as their primary focus and be dedicated to entrepreneurship, business-friendly tax incentives, relaxation and removal of regulations suited to a command economy, and fast track commercial and industrial development.

Districts 1 and 2 would go down their socialist road devoted to preserving their upscale bedroom ranchette lifestyle.  District 3 would pursue capitalism and free enterprise and become a center for careers, jobs, manufacturing, the benefits of economic activity, and the accumulation of real wealth.

District 3 would no longer be a playground for the district 1 and 2 eco-socialists.  It’s time for district 3 residents to quit subjecting themselves to the dead end policies and oppressive regulations that district 1 and 2 residents have to offer.  Those policies, attitudes and regulations simply don’t work in district 3.

Out here in district 3, we need a real economy.  Most of us cannot afford Utopia.

Issue:  Advisory vs. Regulatory Master Plan

October 9, 2008, Elbert County Planning Commission Meeting Audio

(42 Megs, please right click and download to your computer for listening.  Sorry about the file size.  It is a very clear recording and with headphones you can hear pretty much everyone in the hall.  The meeting lasted approximately 45 minutes.)

Of particular interest was the closing discussion about continuation of the issue.  This planning commission has no intention of forwarding a recommendation to the current BOCC for an executive decision.

This planning commission and every member of the audience who spoke, often to applause, and excluding myself, favor a regulatory master plan.  The audience contained many SVV activists.  Listen to the audio.  This is not democracy.  This is not a vote of the people.  These people don’t care about legalities.  They will have their regulations one way or another.  This is mobocracy.

“The BOCC needs to recruit small business in the county, veteran-based businesses, and an agricultural-based local farmers’ market. We need to seek grant money from the State of Colorado for developing cellulosic ethanol from indigenous switchgrasses and set up small distillation coop facilities. We need to utilize the dry and windy eastern half of the county to bring in the production of clean electricity via wind and solar technologies. We also need to develop our historical sites within the county, and sponsor a vibrant day tourism industry.”

From:What Patty Sward & Robert Thomasson Will Do To Fix It

Good grief!

A farmer’s market where there are no truck farms.  State subsidies and state coops.  Power technologies that require state subsidies to be economic.  A handful of local historic sites.  A vibrant day tourism industry to attract the tourist segment that likes to watch switchgrass grow when they’re not skiing in the mountains.  Maybe we can find some descendants of indigenous Americans to claim some land for a casino. Look out Central City, we’re going to need some of your tour buses.

Come on people!!!  This stuff is beyond pathetic.

RE:

Original August 28th Planning Document for regulatory amendments

Revised August 28th Planning Document for regulatory amendments

Both of these documents are dated August 28th.  All of the detailed changes to existing regulations in both documents are identical.

The recommendations section, however, has been reversed in the revised version.  There is no indication in the revised document that it now contains a reversal of opinion.

Mr. Miller’s revised recommendation would perpetuate Elbert County’s exposure to the spurious conclusions of Judge Holmes in the SVV case. 

The BOCC should act with all due prejudice in this matter as soon as possible, and Mr. Miller’s subversion of his original recommendation should not be tolerated.  Mr. Miller is quite wrong in characterizing the “advisory” nature of the master plan as a matter of “desire.”  This is a matter of law, a matter of a long-standing precedent course of dealing, and a matter of rectifying an act of judicial hubris. 

Mr. Miller’s new-found position that a resolution of the advisory nature of the master plan, if “desired” (by whom?), should be left to a complete re-write of all county regulations, is completely disingenuous.  He knows full well that Elbert County can’t even get a rewrite to the master plan done, let alone a complete revamp of county regulations.  The BOCC should put a stop to Mr. Miller’s hubris too.

If Elbert County citizens want a regulatory master plan they should vote on the question.  Judge Holmes and Mr. Miller should not be deciding this matter between themselves.  

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RE: Recommended Changes to Elbert County Regs to affirm the advisory Master Plan

In response to the SVV case regarding the authority of the county Master Plan,

see: http://elbertcounty.net/blog/2008/02/13/spring-valley-vistas-case-docs/ ,

and see: http://elbertcounty.net/blog/2008/02/03/is-master-plan-regulation-or-advisory/ ,

the BOCC affirmed the advisory nature of the county Master Plan by directing all Master Plan language in county Zoning Regulations, Subdivision Regulations, and 1041 Regulations, to be changed or removed to reflect this fact.

Well done Commissioners! Thank you for doing the right thing by rescuing the county from Judge Holmes’ judicial activism.  His attempt to direct county regulatory policy from the bench was wrong headed and the BOCC was absolutely correct to nullify it.

Moreover, the ambiguity of the Master Plan question has been a festering thorn in Elbert County’s side for years.  This BOCC of John Metli, Suzie Graeff and Hope Goetz, has done the county a great service by resolving it, and by resolving it the correct way.

* 9/25/08 update *

Comments to Elbert County Planning Commission

Commissioners engaged in some dialog with me after I read this statement.  I was able to reinforce the point about the inconsistency between general planning directives and regulatory law, and how the former due to its ambiguity should never become law.  One commissioner brought up the new master planning efforts and I was able to make the point about how the transportation master plan contains language that is quite extraneous to transportation.  This commissioner expressed favor for the master plan and said that the planning commissioners could make it regulatory if they chose.  I think he over reached on that comment.  In an effort to understand his favorable disposition toward planning in general, I asked him how the existing master plan had benefited Elbert County since its inception in 1996.  I believe the answer was, “a lot of arguments.”  The point was made.

After my bit, the planning commission heard a subdivision application.  The application entailed a novel use of an existing category of subdivision regulations applied to a new set of circumstances, with the intent of cutting down on bureaucratic red tape.

Many provisions of this regulation set were held to not apply to this particular application, and many provisions of the application were repeated verbosely numerous (5 or 6) times in different sections of the application.  After hearing the entire thing, my guess is that if you took out the redundancies and the inapplicable provisions of the application, a 20 page document could have been narrowed down to one or two pages, and a tremendous amount of time and expense could have been avoided by the Elbert County Community and Development Services Department, the property representative, the planning commissioners, and those attending this meeting.  So much for one-size-fits-all governmental solutions.  It’s a real tragedy to see so much brain power wasted on mind-numbing redundancy and inapplicable details.

When you least expect it, the most interesting revelations surface. I was discussing some fundamental differences between my positions and positions of the left with some Democrats yesterday. As usually happens in these situations, they grew increasingly impatient with me as I defended my position from compromise. As we parted, they made a reference to their firmly held belief that the French Revolution was the logical outcome of Laissez Faire capitalism. They all held this conclusion as if it were fact, and they tossed off questions to this assumption as they departed as absurd. (more…)

Candidate Robert Thomasson

advocates “Smart Growth” for Elbert County, an “urban planning and transportation theory that concentrates growth in the center of a city to avoid urban sprawl; and advocates compact, transit-oriented, walkable, bicycle-friendly land use.” It’s difficult to imagine “walkable, bicycle-friendly” corridors that would be practical over the distances in Elbert County.

Candidate Andy Wyer

believes “managed growth is designed to preserve the rural life style and quality of life that we all enjoy in Elbert County.” “Growth management is a set of techniques used by government to ensure that as the population grows that there are services available to meet their demands. These are not necessarily only government services. Other demands such as the protection of natural spaces, sufficient and affordable housing, delivery of utilities, preservation of buildings and places of historical value, and sufficient places for the conduct of business are also considered.

One technique is the imposition of impact fees. Impact fees are imposed to charge the owners of newly developed properties for the “impact” the new development will have on the community. Fees can be used for such things as transportation improvements, new parks, and expansion of schools. Impact fees are not used to maintain existing facilities, but instead are used to create new facilities in proportion to the number of new developments in the area.

Another technique is application of zoning to reduce the cost of service delivery. Zoning can be used to reduce the area affected by urbanization, allowing the same number of people to live and work in a smaller area, allowing services to be delivered more efficiently. For example, grocery stores and pizza delivery businesses can service only a limited area. If more customers are located within their service delivery area, the cost of delivering their services is decreased.

Preventing suburban densities from affecting a large area also has the effect of providing open spaces so that people who wish to live in a rural setting can do so without urbanization threatening their lifestyle.

The application of growth management techniques are often governed by the development of a comprehensive plan. The plan can be used to measure the impact that new growth will have on the community and define the method by which that impact is mitigated.”

Candidate Steve Valdez

would “plan and manage Elbert County’s growth with smart and proven policies.”

Candidate John Shipper

would “plan and manage growth compatible with a rural lifestyle.”

Put Mr. Valdez and Mr. Shipper in the “managed growth” camp with Mr. Wyer.

All this planning chutzpa begs a great big question. What have managed growth and smart growth planning theories accomplished in Elbert County to warrant such devotion? Answer: nothing – not a damn thing.

Elbert County town centers have minimal economic activity. The Elbert County Fair gets smaller each year. Our road network is in poor condition and does not promote efficient transits of the county. Our schools are producing historically low performance measures, enrollments are shrinking, teachers are leaving, and students are fleeing to Douglas County schools. Commercial enterprises have been closing faster than they are opening, and landowners are prevented from engaging in development that could bring economic returns to the county. Economically, Elbert County is hobbled, and at least four commissioner candidates, apparently, like things that way.

We don’t need their focus on the past, their myths about the rural life style and quality of life that need preserving. This quality of life is not worth preserving. It is poor and getting poorer.  Oh, if you happen to work on or live near one of John Malone’s preserved ranches things might appear to look good, but that’s not because of anything produced here.  The hobbies of one wealthy man don’t constitute a local economy.

We can and must build a much better quality of life with better infrastructure, efficient transportation corridors, desirable schools, businesses that produce goods and services for commercial markets, and opportunities for citizens to participate in economic growth. But these candidates, their myopic visions, the controls they would impose on us, and their master plans, will produce nothing. Elbert County needs opportunities of the sort that county government and Malone’s charity cannot produce. We have to do the hard work ourselves to build these things.

Elbert County citizens need to stop lapping up easy answers from planners. Master plan devotees have had over a decade to prove their worth in Elbert County and they failed miserably. New smart-growth and managed-growth master plans are no more than new lipstick on an old pig.  They are not the answer. There are no easy answers.