Judge: Criste can keep building

Court chastises city for focusing on 'fine print' to defend its case

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— Steamboat Springs chiropractor David Criste can stop worrying about the city tearing his house down.

District Court Judge Richard Doucette on Wednesday rendered an emphatic judgment in favor of Criste and against the city of Steamboat Springs in their mutual lawsuit. The judge's ruling means the city must issue Criste a certificate of occupancy for his remodeled building at 434 Oak St. It also means the city won't be able to require Criste to tear down his second-story addition in order to make it conform to a city development permit.

Doucette told attorneys for the city Josh Marks and Tony Lettunich that if they were considering an appeal, they should know in advance how he felt.

"If there were an appeal, the court finds the hardship on the defendant has been so great, it would not require the building be removed," in any case, Doucette said.

Criste still has a lawsuit pending in federal court in Denver alleging that the city abridged his civil rights. He is seeking monetary damages.

The local and federal cases center on Criste's efforts since 1993 to add a second story on his building. His plan all along was to continue operating his chiropractic practice in the first floor, and build living quarters upstairs.

Criste came into conflict with the city in August 1996, when city officials discovered he had changed his building design. Under the new plans, the second story was to be supported by steel columns set in large concrete pads just outside the skin of the original first story. The problem was, those steel support columns extended approximately 2 feet farther into the building side setbacks than originally approved by the city.

The changes were reflected in a building permit application Criste submitted to the regional building department. The permit was for a foundation only. That's common practice in Routt County, and the building department allows contractors to proceed with framing a building based on the foundation permit.

The foundation permit application was subsequently sent from the building department to City Hall and approved by former city Planning Director Anne Muhme. Criste's attorney Edward Serr, argued that Muhme's action, coupled with other steps taken by the city, in effect gave permission for the changes to the building. The city countered that Criste knew his changes were not allowed by the development permit issued by the city planning department. Further, city officials said the conditions of that approval were attached to the building permit application, and Criste was bound by them, even if Muhme had signed off.

The judge rejected that notion, comparing the attached conditions of the approval to the fine print in an insurance policy.

"The court is being asked to look at that fine print and ignore the large print," Doucette said in giving his decision. "This court finds that very strange and contrary to proper government function; contrary to fair practices."

The judge went on to say that everything the city planning department needed to ascertain that the building was going to intrude farther on the side setbacks was contained in the building permit application that Muhme signed off on.

"The city darn well knew or should have known the building as proposed encroached further into the setback," Doucette said.

Doucette characterized the arrangement between the city planning department and the Routt County Regional Building Department as "somewhat unique." The city contracts with the building department to provide its services within the city limits. The judge found that the city's failure to communicate with the building department at every step of the process in the Criste case exacerbated the conflict.

When the city discovered after the building's structural steel already was in place that Criste's new building design encroached into the side setbacks, it asked the building department to issue a stop-work order to cease further construction.

Criste recalled that day while on the witness stand on Wednesday.

"The day we were topping out, I came home from the topping out party (at the Strawberry Park Hot Springs) to find a stop-work order," Criste recalled. "I was upset. It would take more than one word. I was angry, devastated. I was very confused."

Subsequently, Muhme and the top building department official at the time, Ron Goodrich, went to the construction site to meet with Criste.

Judge Doucette would later say that Goodrich's testimony on Wednesday played an important role in his final ruling.

Goodrich testified that Criste was initially very agitated, but once he calmed down, he and Muhme talked about reaching a solution. Goodrich testified that the city proposed that if Criste would undertake some "remedial measures," to make his building more esthetically pleasing, Muhme would recommend approval of an amended development permit that could allow him to complete the building.

The city in turn, asked the building department to rescind the stop-work order, and Criste resumed construction.

Criste agreed to those remedial measures, but the attorneys for the city and Serr, Criste's attorney, had very different interpretations of what had taken place.

Criste testified there was no doubt in his mind that he had a firm agreement with Muhme. But city attorney Marks argued in his closing statements that Criste was repeatedly warned that Muhme was only in a position to recommend, and both the city Planning Commission and City Council could vote to deny the minor development permit amending the original permit.

"I thought I had a nice deal with Anne Muhme," Criste testified. "Otherwise, they would not have allowed me to go back to work."

Goodrich's testimony jibed with Criste's statements.

"I felt the rescission of the stop-work order put (the building permit) back into the same position it was in before the stop-work order," Goodrich said.

Later, under cross-examination from Marks, he testified: "It was my indication from Anne that the issues would be resolved and the measures to be taken (by Criste) would be remedial. Why would you rescind the stop-work order and allow him to go back to work?"

In the meantime, Goodrich, based on his reading of the meeting with Muhme and Criste, issued the final building permit for the addition.

A considerable amount of testimony during the two-day trial was devoted to the question of whether the city had adequately warned Criste that if he continued construction while he awaited the fate of the amended permit, he would be doing so "at his own risk."

Doucette concluded from the testimony that Criste had not received that warning.

Serr argued in his closing remarks that the city didn't do enough to communicate with the building department.

"One thing we've learned from the proceeding is that the city did absolutely nothing to indicate to the building department whether a (final) building permit should or should not be issued."

The judge agreed, saying the dispute might have turned out differently had the city not gotten the stop-work order rescinded, or at least waited until the details of the amended development permit had been worked out.

"For several weeks, or over a month, the city did nothing," to prevent the final building permit from being issued, Doucette said.

Asked if he felt he'd been vindicated by the ruling, Criste said "Very much so."

"I've always tried to live with integrity," he added. "To have that questioned has been a difficult part of this process. I'm very grateful for the judge's ruling."

To reach Tom Ross call 871-4210, or e-mail: tomross@amigo.net

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