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Clear Creek project before Supreme Court

Developers and Douglas County officials argued Tuesday that Douglas County District Judge David Gamble was substituting his judgment for that of county commissioners in blocking a proposed 366-home development in Clear Creek.

But Bill Shaw, representing area residents opposed to the Clear Creek subdivision project, argued those commissioners violated the rules by voting to tailor the master plan to the specific needs of developers.

The high court took the case under submission and will rule later.



Development lawyer Robert Eisenberg and county counsel Tom Perkins said that whatever the judge thinks of a project, he has to leave the decision of whether it gets approval to the elected commissioners.

“Based on his comments, he felt the board made the wrong decision,” Eisenberg said.



Perkins said the commission is fully within its rights to change the master plan.

Shaw disagreed, saying the commission put the cart before the horse, proposing a master-plan amendment designed to allow that specific development rather than justifying the amendment on proper grounds. He said that occurred after the developer agreed to build an underpass connecting upper-Clear Creek to Highway 50 halfway up Spooner Summit.

“The question is do you want to sell zoning for an underpass,” Shaw told the Supreme Court panel consisting of Justices Michael Douglas, Nancy Becker and Ron Parraguirre.

That underpass would provide a long-desired second access to the Clear Creek area, which now relies mostly on one road for all traffic in and out of the neighborhood.

Shaw said commissioners changed the master plan arbitrarily without making the proper findings of fact to support the change. And, he said, they did so after the county planning commission had rejected the project twice.

“The justification was for a site plan,” he said. “It was not for a master plan.”

That was the argument adopted by Gamble when he denied the project.

“It appears the needs of a development project are driving an amendment to the master plan rather than the reverse,” he said.

Eisenberg responded that saying commissioners sold zoning for an underpass was “grossly insulting.”

He repeated his argument that the elected commission, not the judge, decides whether a project should or should not be built, and that judges don’t have the right to decide which projects are good or bad.

He also pointed out that, if the high court refuses to overturn Gamble and allow the project, developers still have an earlier approval allowing construction of 91 homes on the 1,600 acre site. He said those homes would be built without sewer and water connections where the expanded 366-home project would incorporate sewer, water and other infrastructure.

In addition to the 366 homes, the project would include a golf course and clubhouse as well as the underpass. Work began on the underpass project last week.


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