Legal turmoil continues over Kings Crossing underpass, as Winter Park files amended complaint to now include town of Fraser, Grand County board
The town of Winter Park filed a second amended complaint this week against Cornerstone Winter Park Holdings LLC, West Mountain Metropolitan District, the town of Fraser and the Grand County Board of County Commissioners in Grand County District Court.
The complaint details and requests that the court rule on several disputes between Winter Park and the defendants regarding the use of Kings Crossing Road, Old King Road and Winter Park’s obligations to fulfill the Annexation Agreement signed in 2004 between the town and Cornerstone Holdings in relation to the Leland Creek Underpass project.
Cornerstone is currently building a grade-separated railway crossing just a couple hundred yards away from the current, at-grade crossing at Kings Crossing Road in Winter Park. Throughout the project, Cornerstone has used Kings Crossing Road in Winter Park to move supplies and construction equipment to the site.
The town of Winter Park and Cornerstone entered into a Haul Road Agreement in 2004, and agreed on an amendment to the agreement last month that grants Cornerstone and its employees temporary access to Kings Crossing Road from Old King Road for construction purposes.
Click to view: Second Amended Complaint
Click to view: Amendment-to-Haul-Road-Agmt-08-31-2017-1
The complaint alleges that the defendants maintain that the Cornerstone Property has a legal connection to Kings Crossing Road beyond what was granted to Cornerstone in the amended Haul Road Agreement, and that any connection to Winter Park streets beyond the agreement requires the approval of the Winter Park Town Council.
The complaint also states that the defendants have accessed Old King Road beyond what the amended Hall Road Agreement allows, and that there is no legal connection between Old King Road and Kings Crossing Road aside from the agreement.
The legal status of Old King Road is not clear. Whether the road is public, who is responsible for it and the permissible uses of the road are not known.
The complaint does not specify in what capacity Cornerstone or the other defendants have accessed the roads outside of the Haul Road Agreement.
The complaint also addresses the Annexation Agreement signed between Cornerstone and Winter Park in 2004 and amended in 2007, and the potential closure of the current railway crossing at Kings Crossing Road.
The complaint states that at the time the town entered into the agreement that the underpass being delayed more than a decade wasn’t expected, and alleges that Cornerstone has not performed all of its obligations under the Annexation Agreement.
The complaint doesn’t specify which obligations were not met by Cornerstone.
The complaint stated that section 4.1 (b)(ii)(D) of the Annexation Agreement, as modified by the amended agreement, is invalid and void due to a number of issues including the hindrance of Winter Park’s ability to manage public streets, the contracting away of the town’s police power to regulate its public streets, the contractual obligation for Winter Park to undertake significant alteration to its street system, and the obligation to appropriate funds to make the alterations.
Section 4.1(b)(ii)(D) of the modified Annexation Agreement states: The town will cause the existing at-grade crossing at Kings Crossing Road to be permanently closed and removed as set forth below. The town is solely responsible for such closure and removal, including but not limited to the design, construction, permitting and funding for the closure and removal. The town will use its best efforts to permanently close the At-Grade Crossing as quickly as possible following notice from Annexor that the Crossing is operational.
Winter Park believes that closing the Kings Crossing Road railroad crossing would endanger the public health, safety and welfare of residents in the town, according to the complaint. The complaint lists several reasons why, including a lack of access for emergency responders, inadequate access to Highway 40 for residents and a lack of sufficient crossings should the need for an emergency evacuation arise.
If the Kings Crossing Road crossing is closed there will only be one crossing in Winter Park, the Vasquez Road closing about a mile to the south.
The original Annexation Agreement was built in part around the understanding that Winter Park would fund a road extension connecting the underpass to Winter Park roads, allowing residents to access Highway 40 through the new crossing, despite the underpass belonging to Fraser.
The complaint states that the Winter Park is under no obligation to fund any actions in connection with the closing of the rail crossing at Kings Crossing Road, referencing a possible violation of Article X, section 20 of the Colorado Constitution, or taxpayer bill of rights, TABOR, saying that the agreement can’t supplant the Winter Park Town Council’s discretion to appropriate public funds.
The issue was tackled in a 2013 lawsuit between the Town of Winter Park and Cornerstone, in which the court ruled that the Winter Park Town Council retains the sole discretion to determine whether to appropriate such funds.
The ruling also provided guidelines for Cornerstone to seek funding for the road extension or the underpass, which the town council could then consider and potentially approve in the town’s annual budget.
The court will determine whether there is any legal right for Cornerstone and the other defendants to use Kings Crossing Road, or connect Old King Road and Kings Crossing Road outside of the terms dictated in the amended Haul Road Agreement. The court will also determine Winter Park’s remaining obligations under the amended Annexation Agreement.
Clark Lipscomb, president of Cornerstone, claimed he did not receive any notice of violations in the Haul Road Agreement before the complaint was issued, and that no altercations have been made to Old Kings Road. He also said that an underpass would help to alleviate safety concerns by allowing emergency vehicles to cross the railway unencumbered by crossing trains.
The town of Fraser has not responded to calls for comment by press time Thursday. Grand County Commissioner Rich Cimino declined to comment on the story, and the other two commissioners did not respond to requests for comment.
It is the official position of the town of Winter Park not to discuss pending legal matters on advice from its legal council.
The bridge for the underpass should be completed in November, and the road going under the pass will be completed in 2018. The updated Haul Road Agreement allows Cornerstone and their employees access to Kings Crossing Road from Old King Road until Dec. 31, 2018.
This story has been updated to better emphasize that Kings Crossing Road is in the town of Winter Park.
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