Concern raised regarding Tipi Retreat process

During a recent meeting, County Planner Les Culliton presented some letters regarding the coming February 4 Hot Springs County Commissioners meeting for the remedy hearing of The Tipi Retreat, Michael and Michele Stevens. One letter is from the Planner’s office and the other from the Land Use Planning Commission. The letters were entered into the record but were not read aloud in the meeting.

Chairman Tom Ryan said that he didn’t have anything to add to them. “They speak for themselves.”

However, Chairman Ryan said, “For the audience, Land Use Planning wrote us a letter saying they were concerned that we were not following the land use planning document, that’s the county policy that we use, that the Tipi retreat application was reviewed and actually did go to court and the judge found in favor of the county in that issue. They did find us arbitrary on a couple of those issues, but it only takes one absolute policy to not be appointed and, subsequently, had found that our plan was legal.

Chairman Ryan continued and said, “And then subsequently he did in a trial to decide the penalty for their illegal use of their property, and fined them $40,000. The Land Use Planning Committee and Planner…believe that the process was done. If there’s new information, then it should come back through a new application. And, which I agree with, I think it should come back through a new application. There’s been a lot of new information gained from both sides in this process. And I think the application process will go a little differently in things we understand.”

Chairman Ryan added, “The one thing that though I don’t think we gave much consideration to was how that original road came to be. And the Land use Planning did talk about it a little bit, that it was basically a taking by the county for that 30ft easement for a private residence. I don’t think they ever intended to grant a commercial easement. And in fact, I believe they paid those people based on the residential access. So for us to go and grant that without it, right of way, I think opens the county to liability from the neighbors to sue us to say you’re actually permitting and taking an additional 30ft.”

Chairman Ryan also said, “All the Land Use Planning Board is asking is for us to consider it, go back through the process, add another month to the process. But I think it would help us and it would also not set a precedent to circumvent the Land Use Planning Commission.”

Commissioner Bob Aguiar said, “I’ve heard from both sides. I’ve heard what the Stevens have said, they requested to seek remedy and they were not allowed. I heard from the former commissioner that they were given the opportunity for remedy. So I think the truth is going to be somewhere in the middle.”

Commissioner Aguiar added that by seconding the motion of the hearing was to give the Stevens’ the opportunity for remedy. He added, “We’re not guaranteeing any results. All we’re doing is putting to the public that there was an opportunity for remedy.”

Chairman Ryan responded that the Stevens came to the hearing with their lawyer and shortly therefore they sued the commissioners. He added, “Once it went to litigation, it’s in the hands of the court. The remedy went through the court and we prevailed.”

Commissioner Aguiar said, “All we’re doing is letting everybody present their information.’

However, Chairman Ryan disagreed and said, “No, that’s not the motion, the motion was to go through the checklist, follow the procedures for the land use change. When you start down that process and the motion was to go through the checklist, absolute and relative. The whole purpose of that is to decide whether to grant the land use change. It’s not just a public hearing for a hearing of everybody’s time. It is to grant them a land use change. In my estimation, it circumvents the process…You’re going to go through the checklist, but you do not have an application…You have to have a new application in order to score the checklist.”

Chairman Ryan and Planner Culliton then detailed the proper application process for a land use change and how it goes through the Planner’s office, then the Land Use Planning Commissioner for review using the absolute and relative checklists and potential recommendation. Then the application is reviewed by the HSC Commissioners and scored using the absolute and relative checklists.

Regarding the Stevens’ case against the county, Commissioner Paul Galovich asked Culliton, “Did the judge ask for a remand?” Culliton clarified, “Did the judge ask for it to come back to the board of county commissioners?... No, they didn’t. To my knowledge, they did not.”

Commissioner Galovich replied, “They did it. The judge did. In fact, the judge’s quote was, as stated…’The board did not make sufficient specific findings of fact to support its decision. The court agrees.’”

Chairman Ryan then stated that the commissioners submitted the findings of fact and that the judge upheld their decision to deny the Stevens’ request. Additionally, Ryan argued that the judge “upheld it enough that he fined [the Stevens] $40,000.”

Commissioner Galovich affirmed that the judge said the county has the authority to regulate land and to impose a penalty. However, Galovich added. “But he turned around and said in the companion suit that you didn’t follow your own wrong rules when you came to the decision process.”

Chairman Ryan replied, “He didn’t. He found us to be arbitrary on two, but he upheld the decision.”

Chairman Ryan and Commissioner Galovich then went on to have a passionate debate discussing the matter. Chairman Ryan took the position that the judge upheld their decision to deny the application and that they went to a penalty phase. Commissioner Galovich took the position that the county did not follow their own rules.

Commissioner Bob Aguiar asked Planner Culliton about any land use plan change in the last ten years. Culliton replied, “There was an update in 2022.”

Chairman Ryan asked if the other commissioners would like to rescind their motions or move not to have a hearing regarding the Stevens application. Both Commissioners Galovich and Aguiar said they are not changing their decisions.

The hearing will take place as originally scheduled, on Tuesday, February 4 at 10:25 a.m. in the meeting room at the County Annex Building during the HSC Commissioners meeting.