Winter Park files injunction against Cornerstone regarding Leland Creek Underpass
August 19, 2017
The town of Winter Park filed a verified complaint for declaration and injunctive relief against Cornerstone Winter Park Holdings LLC, West Mountain Metropolitan District and Clark Lipscomb last week, another move in an increasingly contentious battle between Winter Park and Cornerstone over the Leland Creek Underpass.
The project is meant to effectively replace the at-grade King's Crossing Road railway crossing with an underpass, allowing cars to drive under the tracks without having to wait for trains. The controversial project has been growing more complicated, however, as legal issues continue to become a concern.
"I think for Winter Park, their current board and their Town Manager Drew Nelson this is par for the course," said Clark Lipscomb, president of the real estate division for Cornerstone. "For whatever reason, they don't want to follow through with their contractual obligations with respect to this underpass."
The new case, filed in Grand County District Court, sheds some light on the issues concerning the construction process of the overpass. But Winter Park has been reserved in discussing their concerns with the project, or the latest legal action taken by the town.
Town Manager Drew Nelson declined to be interviewed for this story, citing concerns commenting on pending legal matters.
The proposed injunction cites two major concerns for the Town of Winter Park. The first is that Cornerstone has attempted to connect King's Crossing Road to Cornerstone property for their construction and development activities (Town Code 5-2-6). The second is that Cornerstone hasn't received the required construction permits pursuant to the Winter Park Town Code (Town Code 5-2-1).
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The document also cites safety concerns, damage to the road and restrictions on the town's police power as issues.
Lipscomb says that Cornerstone, nor Ames Construction who is actually building the underpass, has done anything wrong or illegal.
"I think all of this stuff is baseless," said Lipscomb. "We have very good contractors doing this work, and we have the railroad heavily involved in it. We have railroad flaggers on site daily monitoring train traffic, and any work that's being done around the tracks."
Lipscomb said that Cornerstone has had construction in the area, and that they have been using the road for years without complaints. He said that there is no new connection to King's Crossing Road, and that they are building off Old King's Road, which was build as a county public road in the 1920s and annexed by the Town of Fraser in 2004.
He also said that because they aren't constructing anything within the Town's road right of way they aren't under any violation of the Town's ordinance. He admitted to at least minor damage of King's Cross Road as the result of construction, but said roads will be fixed in compliance with the Hallroad Agreement from 2004.
The project dates back to 2004 when the Town of Winter Park annexed the Leland Creek subdivision from Cornerstone. The annexation agreement also outlined details and requirements for the construction of the Leland Creek Underpass.
The deal stipulated that Cornerstone Holdings would bear the brunt of the costs, while Union Pacific Railroad and the Town of Winter Park would cover the rest. The town agreed to fund $1.75 million of the project, but has yet to make any payments.
The First Amendment of the Annexation Agreement signed in 2007, states that the town will incur an interest rate of 18 percent per year if the invoices are not paid, though it is unclear if this relates to the entire project of just to the road extension.
Winter Park filed their first lawsuit against Cornerstone in 2013. Later that year the town and Cornerstone filed for a joint motion for settlement, and a ruling came down giving Cornerstone a series of guidelines and deadline for requesting funding from the town.
The Colorado Public Utilities Commission approved construction on the project in December 2014. Winter Park did not take place in the hearings, although the Town of Fraser, Cornerstone and the Union Pacific Railroad did.
Winter Park and Cornerstone have not met to hash out the issues on the project.
In May, Lipscomb sent a letter to Community Development Director James Shockey requesting a meeting to discuss the project. Town Manager Drew Nelson responded to the letter saying that the town would not engage in informal discussions about the development because once completed it would be under the jurisdiction of the Town of Fraser. In the letter Nelson also outlined requirements for a formal meeting between the parties, though no meeting has taken place to date.
A major concern for the residents of Winter Park is the road extension that would connect the new underpass and Grand Park Drive to Winter Park through King's Crossing Road. As it stands there are currently two railway crossings in Winter Park, at King's Crossing and at Vasquez Creek.
The Town of Winter Park is responsible for 100 percent of the funding for the road extension, which is supposed to be built by Cornerstone at cost plus 20 percent, according to the original agreement.
If the underpass is built, and the crossing at King's Crossing Road is closed down, Winter Park risks narrowing the town's crossings to one if no road extension is built. Lipscomb said Cornerstone would not go ahead with the road construction unless it is funded by Winter Park.
"If you're a contractor and you're going to build something for a party, and they say well I'm not going to pay you than I don't think you're going to build what you're supposed to build," said Lipscomb. "That's akin to what's happening now with the town of Winter Park."
It is expected that after construction is completed on the underpass, the Public Utilities Commission will shut down the King's Crossing Road railway crossing.
It is possible that should Winter Park be granted an injunction by the court that the town would be able to keep the crossing open. The injunction could also slow construction on the underpass, forcing Cornerstone to apply and wait for construction permits and potentially find another way to the site through public roads.
The underpass is being constructed a few hundred feet away from the current crossing at King's Crossing Road. Lipscomb said that he expects the bridge to be completed by November, and the road will be completed in 2018. A temporary track is currently being constructed that will take over for the main rail line for about four months during construction. It is expected to cost about $10 million in total.
"I'm a water under the bridge guy," said Lipscomb. "You're not going to hurt my feelings by alleging stuff like this. We're just going to keep building it. We've got commitments to Ames, the railroad and the town of Fraser. And we're going to keep those commitments."