State high court declines review request

MONTROSE — Neighbors fighting a subdivision for more than three years ran out of options Monday, when the Colorado Supreme Court denied their petition for review.

John Cossick and Mary Wood had argued Montrose County failed to follow land use rules and also abused its discretion when it approved the Ponds Edge subdivision on 58.75 Road. They sought an injunction in 2006, which the local district court denied.

When the county commissioners gave final approval to Ponds Edge, Cossick and Wood filed an appeal with the state court of appeals, which was denied this January, as was their subsequent request for a rehearing.

Cossick and Wood then filed a petition with the state high court, seeking a writ of certiorari, or review, of the appeals court decision that affirmed the district court’s ruling.

“We thought the court of appeals made a pretty blatant mistake and I still believe that,” plaintiffs’ attorney David Masters said.

Masters has also represented the Daily Press in legal matters.

“I don’t think the denial of certiorari constitutes an affirmation of the court of appeals’ decision.”

But Norman Brooks, president of development company Old Shavano LLC, had a different word for it all: “Relief.”

“Every time we got one of these (court) denials, we had relief, then they would come back and file again,” he said, later adding the continued litigation left him “exasperated.”

Cossick and Wood appealed the district court’s decision to affirm the county commissioners’ approval of the Ponds Edge sketch and preliminary plan application.

The court of appeals had dismissed the action as moot, which Cossick and Wood argued was incorrect.

Ponds Edge countered that the plaintiffs had failed to appeal the denial of the injunction they sought. In opposition to the request for Supreme Court review, attorney Sam Starrit said Cossick and Wood’s analysis was “speculative and inaccurate.”

“The court’s decision was correct — Cossicks’ (sic) failure to avail themselves of their right to appeal the trial court’s denial of their request for a preliminary injunction was ‘fatal’ to their appeal, because the subdivision went to final plat, was completed and significant third-party interests were granted and obtained,” Starritt’s legal brief read.

Masters said his clients had taken steps to protect their claims from mootness and hadn’t appealed the denial of the injunction itself because that would be “pointless.” They’d sought a preliminary injunction, but when the judge said no, the commissioners’ decision was not affected. Filing an appeal does not automatically stay the decision, either, he said.

“What this means is opponents of land use decisions can never have meaningful review,” Masters said. “We could not obtain a stay that would have stopped the implementation of the county’s decision. It’s a catch-22.”

Cossick and Wood said in an e-mail they’d only wanted the county to acknowledge the language of its own regulations and felt they had no choice but to sue.

“...we would have much preferred to spend our hard-earned money on paying down our mortgage rather than fighting our own county government in court, but we believed that an important principle was at stake,” they said.

“We only ever hoped to have an impartial court review of this subdivision’s approval process and have our case heard on its merits, but unfortunately, the appeals court decision was based on a procedural matter.

“Consequently, in our opinion, our case never really got its day in court.”

Brooks said developers will at last be able to begin selling lots for 13 homes in the 47-acre subdivision, which is complete and ready.

The litigation, he said, had snarled the process. “Up until now, we had to disclose there was a lawsuit against it. Now we don’t have to do that anymore,” Brooks said.

He said the suits had diminished interest in the property and delayed Old Shavano’s ability to get the lots into the market — and now the housing market is down.

Brooks said the developers planned to seek reimbursement of court costs.