THE BUZZ: Lawyers, Guns and Money

By on April 5, 2016

Teton County braces for battle on several land use fronts.

The bulk of the 27 parcels in Spring Gulch slated for conservation. Existing easements are in green. (Photo: teton county gis)

The bulk of the 27 parcels in Spring Gulch slated for conservation. Existing easements are in green. (Photo: teton county gis)

JACKSON HOLE, WY – Most county employees are off to various tropical climes for spring break like many residents. A little sun, a little battery recharge—and boy are they gonna need it.

When county staffers return they will find a valley under attack. Battle lines have been drawn by developers and land owners seeking to challenge law and order. An old familiar land developer is back with a new neighborhood proposal, and he’s brought his lawyers. Another persistent harrier is testing the limits again at his posh glampsites, and the gravel pit that just refuses to go away is about to get a lot bigger.

South Park swap dry-gulched

After county officials put their Hancocks to a new Comp Plan in 2012 they froze large developments until land development regulations (LDRs) could catch up. The controversial PRD—a discretionary and unwieldy development tool—has been mothballed by moratorium since 2013. When new rural LDRs were adopted on December 22 of last year, county commissioners were satisfied the window of opportunity to utilize the much maligned PRD was too small to fret even though the moratorium had officially lapsed.

No one would or could try to slip a PRD by in the tight time frame between late December and April 1, when the new regs were set to take effect, thought county leaders. They thought wrong. The door that was a crack open was kicked in.

On December 23 a developer came forward with the largest land swap/building proposal the valley has seen in years. David Quinn, who built hundreds of homes in Melody Ranch, brought forth a plan on behalf of longtime valley ranchers, the Lucas family. Quinn’s firm, Steelhead Partners, LLC, would transfer density from and preserve Lucas farm land in Spring Gulch in exchange for building 206 homes on 203 acres in South Park.

With the clock ticking for project approval before April 1, the developer first sought to save time by circumventing the required environmental analysis (EA) on both properties in play. When that was denied, he lawyered up. Attorneys from Holland & Hart moved quickly from carrot to stick, claiming the county was doing everything they could to derail the project with onerous speed bumps.

“The county’s process is not rationally related to any legitimate goals. The frontloading of all of these requirements is merely a barrier and drag on any person seeking to develop property in the rural zone—the vast majority of the county,” attorney Matt Kim-Miller wrote in one of two separate appeals to the county. “Teton County’s requirements, timing and application of its rules constitute a moratorium. The context of the PRD development option makes this de facto moratorium; one that is prohibited under Wyoming law.”

Any major development in South Park faces an uphill challenge. Under the new LDRs, South Park is classified as district 10, zoned for agricultural uses. Quinn challenges that notion citing the county’s desire to transfer housing density into complete neighborhoods. The five contiguous 35-acre parcels in South Park slated for development are surrounded by existing neighborhoods, Quinn claims. Opponents like Richard Bloom and Franz Camenzind say that may be true but the land in question provides an open space buffer and is crucial habitat for several native wildlife species.

Before commissioners on merit can debate the project, the developer’s biggest hurdle is the EA. Both sides agree the process is costly and time-consuming. It will take an estimated 14 weeks and some $89K to complete a study. Quinn’s lawyers first appealed, arguing the South Park property didn’t need it. Then they claimed an older EA done by Biota Research and Consulting was sufficient. Now, Holland & Hart lawyers are claiming the entire process—requiring an EA be performed before the county will even consider an application sketch plan—is capricious and unfair.

“They are challenging almost every aspect in our environmental process,” Bloom said. “They were really depending on getting that EA exemption. That was naïve thinking. They are just lashing out on all sorts of things now.”

The county assigns approved environmental consultants to developers on a rotation system. Quinn was hoping for Biota but got Pioneer Environmental Services. Kim-Miller claims Biota should have been next up in the rotation but they were pulled either because of a conflict of interest or a result of Biota’s recent falling out with the county after their research for the natural resource overlay of the new LDRs was called into question.

“The county’s consultants rotation requirement does nothing more than spread work among a very limited group of private parties who materially differ based on experience, skill, efficiency and cost,” Kim-Miller wrote in the appeal document. “This requirement is not rationally related to any proper governmental purpose.”

Development details

What Quinn is proposing south of town is 206 potential units on five parcels along South Park Loop, just south of and across the road from 3 Creek. The project would include 149 market rate homes—Quinn says they will not be high end units but more mid-range “Rafter J-type price bracket houses”—and at least 57 affordable units with the potential for even more, according to Quinn.

“I’ve lived here since I was 7 years old and I’ve never seen such a housing crisis. You gotta do something,” Quinn said. “I just want the opportunity for the electeds and the community to have this dialogue about what they want to see there. Every day in the newspaper you see people getting booted out of their homes. You won’t have a town in five years if we continue on this trend.”

Quinn has a history of delivering. His Melody Ranch development, where he served as GM and president, put more than 400 houses on the ground including at least 160 affordable or attainable units. “I don’t know of any other project that has contributed that many units to the community,” he said.

His latest proposal will preserve open space in Spring Gulch by building some 22 market rate homes there on 27 40-acre parcels owned by Rod and Joyce Lucas—considerably less than the one per 35-acre regulations currently zoned in that area, according to Quinn.

Former county planner Jeff Daugherty, who has been unofficially consulting for Quinn, says the deal looks like a win-win to him.

“With the Lucas project I see an opportunity to preserve 750 acres in an iconic view shed and crucial migration corridor that would also connect two conservation easements currently in place. In trade, we get 60 deed-restricted units right out of the gate, with the rest being attainable by members of our middle class workforce community, which any local real estate agent will tell you is where 45 percent of our market demand is,” Daugherty said. “What’s really frustrating is the valley’s largest land owners—families like the Lucases, the Gills, the Lockharts—have been incredible stewards for the longest time and they are being hit the hardest.”

Kim-Miller agreed. “You are looking at a century of family legacy here. [The Lucases] are the last ones to look at a PRD and they are being punished for that.”

Five contiguous parcels in South Park identified for 206 homes. (Photo: teton county gis)

Five contiguous parcels in South Park identified for 206 homes. (Photo: teton county gis)

Litigious leaning

Opponents of the South Park development accuse the developer of strong-arming county officials with the threat of lawsuit. Proponents of large housing projects like Quinn’s say electeds are talking a good game with the public, claiming they are actively looking for ways to put housing on the ground, yet they hide behind a planning department that has made housing projects virtually impossible.

“The county has done the right thing every step of the way. All this stuff has been well vetted. They put themselves in this timeline bind by submitting an application at the last minute because any earlier and they would have tipped their hand, and the board of commissioners would have reinstated the moratorium on the PRD,” Bloom said. “I think they knew this would be trouble from the beginning. They walked into talks with their lawyers from day one. That’s usually done to intimidate. But you are not going to intimidate Erin [Weisman], Keith [Gingery], and Tyler [Sinclair]. My worry is the county has limited resources. They won’t be able to keep up. I mean, how far is [Holland & Hart] willing to go—District Court, State Supreme Court?”

Kim-Miller said he considers this case to be more than Steelhead versus the county. It would be a case of first impression and the first real challenge to the county’s Comp Plan and new LDRs. “This is not going to be a one- or two-week process. This will go on for a long while. We are committed to it.”

Jamie’s crying

If the county’s legal team isn’t already up to their eyeballs in billable hours with the Holland & Hart filings, Jamie Mackay will make sure they get little sleep in the months ahead. Mackay, who once challenged county regs when he began parking Recreational Park Trailers (RPT) in his Fireside campground on Teton Village Road, is pushing the envelope again.

Mackay has been aggressively advertising the sale of 23 units at his campground under a tenant-in-common-ownership structure. Local lawyer Peter Moyer immediately cried foul, firing off a letter to deputy county attorney Gingery stating the arrangement was a smokescreen for a fractional ownership plan and therefore against land regulations.

Gingery, in turn, sic’d compliance officer Jennifer Anderson on Mackay. She wrote him a letter stating: “…[I]n response to numerous complaints regarding your tenancy-in-common … staff’s decision is you are in violation of the Teton County LDRs. Each of the campsites and RPT units located at the campground shall be owned by the same entity that owns the campground. No fractional ownership, timeshares or memberships of campsites or RPT units is permitted.”

Daugherty butted heads with Mackay in the past over nebulous definitions regarding whether RPTs were glorified tents or permanent structures. It was a win for Mackay who proceeded to load the Fireside and Buffalo Valley resorts he owns with dozens of them. Daugherty says Mackay’s intent to now sell each of them is once again treading grey area.

“Jamie has selected an interesting question here. As long as the use doesn’t change, and it appears it is not here, then the county would have no policing powers over ownership,” Daugherty said. “It is not clear to what extent the county can regulate ownership if the use of the campground remains unchanged.”

Mackay said in a statement, “The tenant-in-common sales will not affect the use of the resorts at all. We have the right to transfer ownership interests, just as anyone else would have the right to own their own business jointly with their spouse, or with their parents, uncles, or friends,” he said. “The county’s zoning regulations do not restrict this, and, frankly, cannot restrict this.”

Courting headaches

The county has a poor track record of fighting legal challenges. In fact, they are 0-4 in recent litigation by most observations. Having to fight both Quinn and Mackay on land use issues will be daunting enough, but now an additional old wound is festering once again.

Roger Seherr-Thoss bested county legal eagles after a State Supreme Court ruling in June 2014 overturned regulations on the size of his gravel pit business in South Park. Seherr-Thoss recently applied for a permit that would increase the size of his mining operation from 15 acres to 334. Melody Ranch homeowners, which include Bloom, have been at odds with noise and air quality issues regarding the business, but it appears there is little the county can do, outside of appealing to state DEQ officials, to limit what the high court ruled as grandfathered privileges. PJH

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