Retreat at Timber Ridge development notice

One of several development notices posted by El Paso County in February 2018 (Source: 

A group of Black Forest residents opposed to a proposed housing development are accusing the builder of trying to silence them with the threat of hefty legal bills.

The residents filed a lawsuit against the developers and El Paso County in the spring after county commissioners approved a zoning change needed for the 212-unit development, north of Poco Road off Vollmer Road. The group has argued that the community doesn’t fit in with the county’s long-term planning documents, would ruin the rural character of the area and would strain the area’s limited water supply.

In a court filing in June, the developers’ attorney lodged allegations against the residents and requested that the residents be ordered to pay the legal bills and other costs the developers will incur defending the “frivolous and groundless” lawsuit.

The leaders of the nonprofit group, Friends of the Black Forest Preservation Plan, said in a statement that the counterclaims resemble a Strategic Lawsuit Against Public Participation, or a SLAPP — a term referring to a legal tactic sometimes used by deep-pocketed corporations and others to intimidate critics.

Third-party legal experts agree that the developers’ move appears to have the appearance of a SLAPP and bears echoes of a case that resulted in a notable 1980s Colorado Supreme Court ruling intended to safeguard against such legal maneuvers.

The controversy over the roughly 260-acre Retreat at TimberRidge development comes as growth in the Colorado Springs area continues to spill over into the northern outskirts of the city, giving rise to concerns about whether the local water supply — mostly from groundwater wells that are slow to recharge — can accommodate development.

On March 27, commissioners voted 3-2 to rezone the land from rural residential to “planned unit development,” against a unanimous recommendation from the county Planning Commission.

The rezoning allows more houses and fewer lots, according to the group. An area that was once designated for about one dwelling per 5 acres can now accommodate more than 150 lots about one-third an acre in size, the group said its statement, provided to The Gazette by its attorney, Leif Garrison of Colorado Springs.

Garrison argued in the lawsuit, filed on April 24 in 4th Judicial District Court, that the county board “exceeded its jurisdiction and abused its discretion” by approving the developers’ application. In the complaint — which names the Friends group and residents Terry Smith and Amelia Snyder as plaintiffs — Garrison asks that the court overturn the decision and award his clients legal expenses and costs.

Colorado Springs-based Robert Scott-General Contractors, Arroyo Investments, and the land owner, Jacob Decoto, are named as defendants in the lawsuit along with the county. An attorney for the developers, Ryan Klein, declined to comment.

The lawsuit was simply an attempt to “defend and enforce” the Black Forest Preservation Plan, a roughly 100-page document that the county adopted in the 1970s as a guiding tool for land use planning, the Friends group said in its statement. “In return, the developers seek to silence their voices through intimidation and violation of their rights under the United States and Colorado constitutions,” the group said.

Klein wrote in a June 12 legal filing his clients had met with neighbors to discuss the development and that residents who filed the lawsuit had expressed support for the development as recently as February. He argued that the plaintiff’s lawsuit was an attempt to harass or deter developers that was “devoid of reasonable factual support and/or lacks any … basis in law” and could interfere with the development and sale of the property.

Garrison said that area residents had previously said they were in favor of the development because they thought that a different rezoning had been approved that would transition from the urban housing densities within the Retreat to the rural housing densities of the surrounding area. But, after realizing that no such rezoning had occurred, a committee affiliated with the group submitted a letter of opposition to commissioners ahead of their vote.

George “Rock” Pring, a professor at the University of Denver’s Sturm College of Law who has spent decades studying and writing about SLAPPs, agreed that the developers appear to be using that tactic.

“Claims against citizens like these are a remarkably obvious violation of the Constitution’s First Amendment right for Americans to ‘petition the government for a redress of grievances,’ an abuse of the courts to ‘chill’ citizens’ communications with their government officials (judicial, executive, or legislative) to achieve government action,” Pring said in an email.

Denver-based First Amendment Lawyer Steve Zansberg echoed Pring, saying that the developers’ claims related to the Black Forest project bear all the earmarks of a SLAPP.

“By seeking monetary damages, personally, against the homeowners who have opposed the project, the developers send a clear signal to others in the community who might contemplate participating in the governmental decision-making process — ‘proceed at your own personal risk,’ ” Zansberg, a partner at Ballard Spahr who has represented The Gazette in legal matters, said in an email.

He added that Colorado’s Supreme Court has imposed a heightened burden on parties who assert such “abuse of process” counterclaims, and directed trial court judges to quickly resolve such claims.

In recent years, critics of another project in the Pikes Peak region have asserted they were victims of a SLAPP. Transit Mix Concrete, which has sought to open a quarry on the Hitch Rock Ranch property off Colorado 115 southwest of Colorado Springs, named opponents as defendants in a lawsuit when the company asked a judge to review a state board’s decision to deny its mining application. Transit has denied that a request for attorney’s fees in that lawsuit, which has since been dismissed, was an attempt to bully quarry opponents into silence.

Marla Novak, director of government affairs for the Housing and Building Association of Colorado Springs, said the developers appeared to have met the county’s requirements.

“We’ve seen it before. you’re given a set of rules, you play by those rules, only to have the rug ripped out from underneath you,” Novak said. “It’s very frustrating.” 

Friends of the Black Forest Preservation Plan has before petitioned the court for review a land use decision by the county commissioners. In 2015, the group sued unsuccessfully in 4th Judicial District Court to overturn the board’s 3-2 vote to grant a special use variance for commercial greenhouses on a former horse ranch on Shoup Road.

EDITOR'S NOTE: A previous version of this story incorrectly stated the average lot size that the county's rezoning would allow at the Retreat at TimberRidge. The story has been updated to correct the error. 

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