By Miki Mullor

This morning Judge Jennifer Mabey of the 4th District Court issued a temporary restraining order barring the Town of Hideout from relying on four of the five reasons it has been using to deny building permits in Golden Eagle. The ruling on the fifth reason was deferred until at least May 19.

The ruling deals a major setback to the Town which has been insisting it is only trying to enforce the law as written, spending so much on legal fees, that it is now expecting a $300,000 to a 500,000 budget deficit next year.

Mustang Development LLC, the developer of Golden Eagle, contended that the Town was abusing it’s permitting power to pressure Mustang on a defamation lawsuit it brought two years ago against Mayor Phil Rubin personally – an argument the judge seem to agree with.

Pretextual reasons to deny permits

As we reported on another lawsuit filed by John Blamer, this first lawsuit that started the Golden Eagle saga was filed by Mustang in May 2021, accusing the Town’s Mayor and its planner in waging a slanderous campaign against Mustang’s offer to sell its Outlaw private golf club to Community Preservation Associations (CPA), the largest Homeowners’ Associations in Hideout. The lawsuit is seeking $100,000,000 in damages against Rubin personally.

Following that, the Town started denying building permits to third party landowners in Golden Eagle, who were all Mustang’s customers. An email from the Town’s engineer seemed to support the accusation by Mustang and Blamer that the Town is abusing its permitting power in order to pressure Mustang on the defamation lawsuit:

Judge Mabey, in her ruling today, seemed to take Mustang’s side on the issue:

“Plaintiff’s motion was seeking a temporary restraining order and injunction, basically preventing the town from refusing to issue building permits as a result of the litigation that plaintiff was involved in with the town, obviously there was some, an underlying email that indicated that that was the town’s position…” – said Judge Mabey during the opening of the hearing, “I’ve indicated previously that I’m not convinced about the explanation for that email, and so I found that it was appropriate to enter an injunction prohibiting the town from refusing to issue building permits for some reason that was not legitimate.”

The court continued to address each of the specific reasons the Town was using to wholesale deny building permits in Golden Eagle: “the court finds that four of the requirements identified by plaintiff are not appropriate bases that the town can use to avoid issuing building permits within plaintiff’s development of Golden Eagle.”

Water pressure testing

The court explained that the Town’s requirement to pressure test the water system is a new requirement and is akin to moving the goalpost. In this context it seemed to the court as if the Town was seeking to avoid issuing building permits and is coming up with new reasons after a previous issue with the water system was resolved.

Roads and fire access

The Town required all roads in Golden Eagle to have a foot of shoulder on each side, according to a fire safety standard it adopted. Mustang argued the actual fire safety standard required 20 feet of road width, which the roads in Golden Eagle easily meet with their 24 feet width. Also in question was 700 feet of the main access road which is not paved yet. The Town said its surface was not all weather approved.

The court disagreed with the Town over its recent change to the fired code: “while the court finds that changes or updates to the international building code, for example, to reflect updated guidelines related to safety, are different than the town deciding to adopt standards that already existed, but the town hadn’t seen fit to incorporate into its building requirements until after plaintiff obtained the vested rights [the approval of Golden Eagle].”

The wrong code

The Town required Mustang to post an improvement assurance bond to ensure the infrastructure in Golden Eagle will be completed. But the Judge agreed with Mustang that the Town was misreading its own code: “The court finds that the code section relied upon by the town actually applies to warranty bonds for completed improvements, and that the code section relied upon by plaintiff is the one that most currently applies to the current status of the project”

Storm Drain Plan

A storm drain is a system that ensures excess water from rain or snow melt does not impact homes as it makes its way down from higher ground. While Mustang argues that a storm drain plan exists, the Town argued the proper procedures to submit such plans were not followed. The parties disagree on the requirement but the court has deferred its decision and has scheduled another evidentiary hearing on May 19 to review the evidence again.

Not applicable to Certificate of Occupancy

This motion by Mustang has been targeting the denial of building permits. The court highlighted that this ruling does not apply to certificate of occupancy, such as in the Blamer case we reported on, as the standard for issuing those is higher.

The is also a requirement for a secondary road access before the Town can issue building permits for more than 30 homes. The court acknowledged Mustang’s concern that the Town is deliberately preventing Mustang from installing the second road, but highlighted that question is for another day.