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Bar J dispute spurs lawsuit

July 11, 2018

The developer behind a failed proposal to build 69 housing units at the Bar J Chuckwagon is taking Teton County — and a group of West Bank neighbors — to federal court, seeking $14 million in damages.

In spring 2015, HRH LLC filed an application to amend the Bar J master plan and convert the long-standing chuckwagon operation into a residential development with 46 free-market and 23 affordable homes.

But that plan was thwarted after a group called the Alliance of Route 390 Neighbors filed three appeals of the plan during the county’s project review process, each time halting progress on the proposal. Although the county ultimately dismissed all three appeals, as a result of the delays HRH lost its option to purchase and develop the 21-acre Bar J property.

Now HRH is claiming the developer’s property rights and due process rights were violated in the process and is seeking millions in damages from the county and neighbors.

“My client feels like this is a case about losing their ability to use their property rights in a way that is constitutionally protected,” said Richard Thomas, an attorney representing HRH. “It really is about the sanctity of property rights, and how could it be that something like this could happen where someone was deprived of his property rights without any due process at all, by folks that didn’t have the right to file an appeal.”

The lawsuit was filed in the U.S. District Court in Cheyenne on June 29 and demands a trial by jury. Teton County and the Board of County Commissioners are named as defendants, along with the Alliance of Route 390 Neighbors, a group that organized against the redevelopment plan.

Also named are specific members of the Alliance, including Nelson Braddy, Richard and Patricia Jaquith, Jim Speyer, Jerry and Diana Kitchen, and 240 John and Jane Does as unnamed members of the Alliance.

The claim against the county challenges a provision in the land development regulations that requires a planning application that is subject to an appeal be automatically frozen in its tracks.

A ‘killing zone’

“Teton County has recklessly created and maintained an arbitrary and capricious ‘killing zone’ in its application review process, in conscious disregard of the substantive due process rights of good faith applicants, like HRH, who seek to develop Teton County land for the good of the public,” the lawsuit reads.

It further alleges that the neighbors filed the appeals of the plan with “actual malice,” “conspiring” with one another to thwart the development of the Bar J property.

“Each of those appeals was groundless and asserted for a malicious and improper purpose,” the lawsuit says.

Defendant Jerry Kitchen learned of the lawsuit July 6. He described his reaction as “outrage, disappointment and concern about the consequences beyond us.” He sees the lawsuit as an affront to free speech protected by the First Amendment, and the right of a group of community members to band together to challenge a proposal.

“I just find it incredibly troubling to think that a lawsuit like this could have the effect of chilling public comment on things we think are so important in this community,” Kitchen said. “Anything that interferes with the public’s legitimate right to comment on issues of community interest, including government activities, anything that interferes with that right is objectionable.”

A July 6 letter from Alliance leadership to its members equates the suit to a “Strategic Lawsuit Against Public Participation,” or a SLAPP lawsuit, intended to intimidate and silence critics by forcing them into a burdensome lawsuit. Wyoming does not have statutes preventing SLAPP suits, it said. The letter calls the lawsuit “unfounded and outrageous,” with “no basis in fact.”

“HRH’s suit is clearly a message and a threat to others not to interfere in such matters,” the letter said. “We intend to vigorously deal with this litigation. There are important public interest policies involved, and this attempt to subvert them must be defeated.”

Deputy County Attorney Erin Weisman refrained from commenting on the case because of Wyoming rules of professional conduct that restrict attorneys’ public commentary on active cases. She did say that the lawsuit will require significant public resources from the county attorney’s office.

“That’s a real impact that our office feels, and potentially other electeds and offices as well,” Weisman said.

The county is insured through a local government liability pool to help cover costs of lawsuits such as this one, but the county attorney’s office is still working to determine if the HRH suit is covered by the county’s policy.

$14M for ‘lost value’

Thomas said the $14 million sought in the lawsuit represents “a measure of lost value of this property interest that we had.”

HRH originally entered into an agreement with the Bar J owners, the Humphrey family, in April 2015 for the exclusive right to buy the property for $13.5 million. According to the lawsuit, upon the instruction of the Teton County Planning Department, HRH then submitted an application for a Bar J Master Plan amendment in order to build the 69-unit complex.

The lawsuit claims the proposal was intended “directly to address” the affordable housing shortage in the community.

Under the 1977 Bar J Master Plan, original entitlements to the plot include 1 acre of residential development, 5 acres of open space and 15 acres of commercial development totaling 33,000 square feet.

The parcel is home to 14,574 square feet including a restaurant, retail store, storage and concessions, according to the Teton County Geographic Information System. With the underlying residential zoning in the area, the parcel could have about seven homes.

After learning about the plan, Jerry Kitchen said he and his neighbors were immediately concerned that it did not comply with county rules, and formed the Alliance of Route 390 Neighbors.

The Alliance first appealed the redevelopment’s preapplication planning conference in May 2016. The following spring, the Alliance filed appeals of planners’ approval of an environmental analysis and the planning director’s denial of a request for a formal interpretation of how county rules apply to the Bar J site.

The land development regulations allow for an “aggrieved person” affected by a planning department decision to appeal that decision to the Board of County Commissioners. The appeal triggers an automatic freeze of the application, meaning the Bar J proposal couldn’t move forward until the appeals were resolved.

The lawsuit says the regulation “gives persons who lack standing a powerful, but unconstitutional, weapon to paralyze an application review process.”

The neighbors argued the plan to develop the plot for housing abandoned the master plan, rather than just amending it. They said if the Bar J wanted to amend the master plan, then the underlying zoning, which allows only one house per 3 acres, should come into play.

The Board of County Commissioners repeatedly dismissed the neighbors’ appeals, on the basis that the Alliance didn’t have the right to appeal preliminary planning decisions. The board determined the Alliance should only be able to challenge “final agency actions.”

“My position has been and continues to be that the final agency action for any decision on these Bar J applications will be made by the Board of County Commissioners, not by the planning director,” Deputy County Attorney Erin Weisman told commissioners.

HRH’s attorney at the time, Jim Lubing, routinely protested the appeals and the stays, calling them unconstitutional because anyone can file an appeal with an automatic stay, regardless of whether that person’s right to file the appeal has been established.

“The problem is if somebody from China were to file an appeal of a development project here like this, the county would automatically stay it,” Lubing told the News&Guide. “There are no limitations on the stay.”

HRH ultimately ran out of time on its agreement with Bar J to develop the property and withdrew the application.

Defendants will have an opportunity to respond to the lawsuit in the coming months.

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