This story first appeared in The Outsider, the premium outdoor newsletter by Jason Blevins.
In it, he covers the industry from the inside out, plus the fun side of being outdoors in our beautiful state.
As the years ticked past, investors Petr Lukes and Jana Sobotova started hinting their patience was wearing thin. The suggestions of a lawsuit grew louder in the last year as the Forest Service approval process for their plan to build a luxury home community above the Vail Valley stretches into its 14th year.
This week Lukes and Sobotova stopped hinting and filed a lawsuit asking a federal judge to simply force the Forest Service to issue its final decision, which is more than a year overdue.
The developers behind the 19-home Berlaimont Estates plan want to build a road on federal land to reach their planned 680-acre mountaintop community. In July 2021, the Forest Service said a decision was coming within 30 days. Then a foursome of Colorado politicians waded into the process, urging the Forest Service to delay any action on the widely disliked proposal to allow even more scrutiny.
Lukes and Sobotova argue in their lawsuit filed this week in Colorado’s U.S. District Court that “political pressure” is hindering the Forest Service after special interest groups “waged a campaign of misinformation … and erroneous legal assertions” that have swayed political leaders to slow the Forest Service approval process.
The Czech investors with big plays in Florida as well as a slopeside mansion at Vail ski area they built two years ago and listed for $45 million first floated their plan for 19 luxury homes on 680 acres above Edwards in 2008. They went through local approval in Eagle County for an access road that would pass through federal land to reach their parcel. Then the Forest Service began its environmental review of possible routes climbing to the mountaintop acreage.
White River National Forest Supervisor Scott Fitzwilliams reluctantly approved a road through the federal land, noting that the 1980 Alaska National Interest and Lands Conservation Act — or ANILCA — requires land managers to provide landowners with “adequate access” for “reasonable use” of private property surrounded by federal land.
Fitzwilliams picked a route that followed an existing, albeit winding and indirect 2.6-mile dirt road up to the planned community, saying the road would have the least impact to wildlife and habitat. The developers wanted a different, more direct (and less costly to build) road. They appealed Fitzwilliams’ choice of routes. A Forest Service arbiter heard their appeal in January 2021 — as well as ardent protests by wildlife advocates who unwaveringly oppose the project — and sent the final decision back to Fitzwilliams for some adjustments.
The developers have spent most of this year suggesting they would sue the Forest Service, arguing the route Fitzwilliams selected violated their right to “adequate access” for “reasonable use.” They say the route creates safety issues for emergency service providers and damages wildlife habitat because it requires retaining walls and extensive blasting.
There are many opponents of the plan. More than 4,200 Eagle County residents signed a petition opposing the project and yet another gated community in the Vail area’s dwindling wildlife habitat. A broad coalition of environmental groups have fought the plan for years.
Colorado’s high country is heavy with failed plans for luxury, gated communities, most of them proposed by out-of-state developers seeing dollars in the cool summer temperatures at 10,000 feet. (To wit: Florida developer Bobby Ginn’s Battle Mountain plan above Minturn; Texan Red McCombs 30-year proposal for 10,000 homes atop Wolf Creek Pass; and St. Louis developer Fred Kummer’s 40-year push to build a ski area above Eagle.)
One perspective from opponents questions the role and breadth of ANILCA in Colorado. They argue that Fitzwilliams should be able to determine that a seasonal dirt road qualifies as “adequate access” and “reasonable use” of the private land should be something less than 19 35-acre estates with high-maintenance homes.
Fitzwilliams in late 2020 published his Final Environmental Impact Statement. In July 2021, he published his Draft Record of Decision, which did not include the adjustments required by the Forest Service mediator. That will come in his Final Record of Decision, which is about one year overdue.
In August 2021, Gov. Jared Polis, Colorado U.S. Sens. Michael Bennet and John Hickenlooper and U.S. Rep. Joe Neguse asked Forest Service officials to delay a final decision to “reengage with the local community” and address local concerns. The Democrats also warned of impacts to wildlife and the danger of the legal precedent in granting access to the Berlaimont developers.
“The Forest Service has no obligation to grant dramatically improved road access to facilitate more attractive real estate development. Such a decision would have far-reaching implications,” a letter from the four politicians reads.
The lawsuit filed this week by Berlaimont Estates asks the court “to compel the Forest Service to issue a final decision.” It does not seek permission for a particular route or ask the court to overturn any previous decision by Fitzwilliams. But once again, the developers suggest they may sue over the particulars of the final decision.
The project has been through four different presidents, three public comment periods, many public meetings, a draft and final Environmental Impact Statement, a draft record of decision and appeal process within the Forest Service, the lawsuit reads.
“Yet the Forest Service refuses to issue the final decision because individual elected officials have pressured the agency to ignore its statutory duty,” the lawsuit reads.
Fitzwilliams said he could not comment directly on the lawsuit but said his team is “not far from being done.” He said pretty much the same thing a year ago after releasing his Draft Record of Decision.
“Hey, it’s a controversial project and we want to make sure we do it right,” he said.