The tenor of a generally mundane and administrative Board of Adjustment hearing grew tense and confrontational last week as a planner and an attorney representing the Durango Hot Springs Resort & Spa squared off with La Plata County officials.
Odder still, were the interpersonal dynamics at play.
Dan Murphy, a senior planner with Short Elliott Hendrickson representing the hot springs, resigned in March 2023 after a nine-year stint with the county planning department. He appeared alongside attorney Paul Kosnick, who worked in the county attorney’s office from 2009 to 2015.
Across the room from them sat Lynn Hyde, director of the Community Development Department (which includes planning) hired not long after Murphy’s departure, and Ashley Powell, assistant county attorney.
The board, chaired by Durango Code Enforcement Officer Steve Barkley, took legal advice from County Attorney Sheryl Rogers – Powell’s direct superior.
In a written statement to The Durango Herald, Rogers said that two attorneys working for the same government may independently advise separate entities – the community development department and the BOA, in this case – so long as the two are separated by a “screen.”
“The two county attorneys do not confer with each other unless the attorney for the applicant is involved in the conferral,” she said.
At hand was the question of whether Hyde, as Community Development director, had the discretion to adjust the hot springs’ approved land-use permit to allow for a taller roof. An approval of the adjustment would save the hot springs years of additional planning time.
The revision is necessary, they argue, because the building plans initially approved by the county included a previously unnoticed design flaw that allows snow to build up on an adjacent roof, causing weight concerns and water leakage.
In November 2023, the hot springs requested an adjustment to its permit, which was denied. Instead, the county suggested the hot springs apply for a new land-use permit.
At the direction of the county attorney’s office, the hot springs on Jan. 29 asked for a code interpretation of the applicable section of land-use code. On April 4, Murphy requested an appeal of that code interpretation.
It was the hearing over that appeal that occurred June 12.
Debate centered on whether a list of nine situations in which the director may grant a permit adjustment enumerated in section 66-28 of the La Plata County land-use code, which Murphy helped write, was comprehensive or just suggestive.
According to that list, the director may approve an increase in building height of not more than 10% than originally approved. The proposed remedy to the hot springs’ design problem would include increasing building height by more than 10%.
The hearing was conducted in a “quasi-judicial” manner, although the code offers no formal guidelines on the proceedings. However, Rogers explained that the decision made by the BOA is subject to judicial review, and that review would be done using only the exiting record.
“Various factors might impact how formally a hearing is conducted,” she said.
It was for this reason that Murphy appeared caught off guard when Assistant County Attorney Powell requested to cross-examine him.
The question arose early in the hearing, when BOA Chairman Barkley asked for the names of the witness who would offer testimony. Kosnick said that Murphy would be presenting, and with respect to his status as a witness added, “I’m not sure how you want to classify that.”
Rogers jumped in with a clarification.
“Dan Murphy, he’ll be presenting, but in my mind a witness is then also subject to the cross examination,” she said.
Nothing about the hearing was abnormal, Rogers said.
“The presentation of evidence and the ability to perform cross-examination are important components of due process and create the type of robust record a judge would expect,” she wrote in an email to the Herald. “Dan Murphy appeared to take exception with being treated as a witness. Since he is not an attorney for Durango Hot Springs, then the only other role for him in this type of proceeding is witness.”
Both sides were offered the opportunity to conduct a cross examination, although Kosnick did not exercise that right.
After Murphy’s presentation, Powell seemed to seize on a particular slide.
Murphy had quoted two of three sentences in a paragraph of code on his slide. At the time, the slideshow was resting on one of Kosnick’s slides, which included the full paragraph.
“The Board of County Commissioners adopted both the first sentence and the third sentence of paragraph B. Should they be read in conjunction?” Powell asked, to make the point that Murphy had omitted a sentence of code on one slide.
“No, what I do know is that the Board adopted the first sentence with the matter of discretion to be afforded to the director in instances like this, because I helped work on the code,” Murphy shot back.
“OK, so you don’t believe the Board of County Commissioners adopted the third sentence as well?” Powell asked.
“I believe they (did),” Murphy said.
Powell asked if the two sentences worked together, at which point Murphy said he did not understand the relevance of the question and Kosnick objected.
“Mr. Chair, I don’t want to object (to) anything, but this is just kind of weird,” Kosnick said. “He’s asking (Murphy) questions on interpretation of the code that are legal in nature as an attorney, (he’s) presenting a legal argument to our representative here. I guess I just object that the questioning is asking for legal conclusions which are …”
Before Kosnick could finish, Rogers interrupted.
“Mr. Murphy is opining legally,” she said. “He offered opinions on how codes are supposed to be interpreted. It’s up to the board. Is your point, Mr. Powell, that they presented only a part of (the code)?”
The tenor of the questioning was indicative of the disparate approaches each side took. For the hot springs, Murphy took the lead, rather than Kosnick, and presented a deck of slides that detailed a narrative, highlighting code language he deemed applicable.
Powell, in contrast, led the county’s presentation and offered a direct examination style of back and forth with Director Hyde.
At another point in the meeting, Kosnick tried to introduce an email between himself and Powell into the record and Rogers seemed to prompt an objection from Powell.
“Go ahead … Mr. Powell,” Rogers started as Kosnick distributed copies of the letter. “Do you object to …”
“I would object to relevance,” Powell interrupted.
The BOA ultimately voted unanimously in agreement with the county and found that Hyde did not have the discretion to grant the adjustment.
“The interpretation rendered by the director is reasonable, is fair, and she has articulated that very well,” board member Jack Cassidy said in his comments before the vote.
However, he and other board members called on county staff members to find a way for the hot springs to adjust the building plans without the need for a new land-use permit.
“I encourage the parties to work together to find a way to get this work done without having to go back and apply for a land-use permit,” board member Charly Minkler said. “I think that would be … very onerous and punitive.”
rschafir@durangoherald.com
