An ongoing battle over a conservation easement concerning Cozens Meadow is muddying another one of the developer’s efforts in Fraser.

The town’s planning commission voted 4-1 on Oct. 27 to send a preliminary plat and amended development plan for the Willows Apartments, a new neighborhood in the Grand Park development, to the town board for a final vote. Planning commissioners withheld their approval after town staff expressed their concerns about construction encroaching on the Cozens Meadow and jeopardizing a conservation easement.

During the hearing, Fraser Town Planner Catherine Trotter said that the Willows plat improperly included the Cozens Meadow open space, which is the subject of ongoing litigation between the town and developer. As a result, town staff recommended planning commissioners send the application to the town board, asking the board to deny the application for four reasons.

The Willows is designed as a 204-unit apartment complex spread out across a dozen buildings along Old Victory Road and the north portion of Cozens Meadow.

Last year, Developer Clark Lipscomb submitted a conservation easement for Elk Creek, declaring the development met all of its easement requirements. Fraser disagreed and declared the easement null and void since it wasn’t approved by the town attorney, setting up a fight.

Earlier this year, the town stopped processing Grand Park entitlements in an effort to get an easement for the whole of Cozens Meadow. Lipscomb then sued Fraser over the town’s decision to stop processing entitlements, claiming it was costing him millions.

The town argues the annexation agreement and final development plan for Grand Park requires an easement on Cozens Meadow, while Lipscomb claims the meadow’s status as open space fulfills the development’s requirements.

In September, a judge ruled that Fraser must resume processing Grand Park entitlements but didn’t rule on the future of the meadow.

On Oct. 27, Trotter also said two other future planning areas were improperly included in the preliminary plat for the Willows and added there was a lack of commitment from Lipscomb on a dedicated right-of-way, the construction of a sewer crossing and other improvements.

Echoing Trotter, Fraser’s attorney Kent Whitmer cautioned planning commissioners that approving the final development plan could weaken the town’s position in court when it comes to requiring a conservation easement on Cozens Meadow.

During the meeting, Lipscomb said he’s committed to dedicating the right-of-way on Old Victory Road as soon as construction on the Willows is done and promised the sewer crossing.

“(The sewer crossing) will be in a separate development agreement; that is a non-issue,” he said. “Give us a little credit here that that road will get built. We want to do a separate (development agreement). We’ve outlined this to your lawyer. That would be built upon the completion and certificates of occupancy of the apartments.”

In addition, Lipscomb explained that previous final development plans have included markers for future development areas. However, he said he would remove the future development areas from the Willows plan if that helps get it approved.

As for the meadow encroachment, Lipscomb said the plan maintains open space dispersed throughout the Willows neighborhood.

“I think bringing (Cozens Meadow) into the project is pretty contiguous,” he said. “It reflects identically what was done in the Meadows subdivision, the Elk Creek subdivision.”

Public comments were largely against the development and urged the planning commission to deny it. Two submitted letters accused two commission members of conflicts of interest, which both denied.

Planning commission members expressed mixed feelings about the final plan for the Willows, noting the need for the 204 apartments. Lipscomb said the apartments will provide yearly leases at market rate with no allowances for short-term renting or subletting.

The balance between the need for housing and the desire to protect open space weighed on the planning commissioners.

“I understand the meadow is important to a lot of people, but it’s not important to people trying to build a business or to people trying to find housing,” commission member Parnell Quinn said. “I don’t think the open space makes a difference to the overall community, but the 204 units make a huge difference.”

Most commissioners felt the majority of the staff’s original concerns had been addressed with the exception of the Cozens Meadow inclusion, which is a part of ongoing litigation between Lipscomb and the town.

“I’m uncomfortable and I don’t quite know which way to go here because the town has taken one position and the developer has taken a different position,” Planning Commissioner Margaret Bowles said. “I agree that by incorporating the open space into the plan, as (Lipscomb) has it, is actually more favorable for those residents … But I’m also in agreement the less we take of the meadow the better.”

Ultimately, Bowles motioned to pass the final development plan to the town board without a recommendation, and the commission passed it with member Bob Gnuse recusing himself and member Sam Brewer voting against the motion.

Fraser’s town board will take up the discussion at its Wednesday meeting.