A 4th Judicial District judge recently sided with a resident when the judge dismissed the separate lawsuit filed against the resident by the property owners and the developer.

Hay Creek Valley resident Mike Cloutier sued the El Paso County commissioners earlier this year because they approved a proposal making way for 20 more high-end homes that take access off a dead-end road. Hay Creek Road, north of the Air Force Academy, already serves 80 existing residences hidden among the foothills. The county limits the number of homes along a dead-end road to 25 for safety in a fire evacuation.

After Cloutier sued the county commissions over fire evacuation concerns, the property owners, Randall and Andrea O’Leary and their developer View Homes Inc. sued him. The suit claimed Cloutier intended to harass them and interfere with their business relationship. The suit further claimed Cloutier only intended to delay the subdivision and cost the developer and property owners damages.

Judge David Prince dismissed the lawsuit against Cloutier last week saying in his ruling that a resident fighting to avoid an increase in density near their home is “not improper or in any way nefarious.”

“As much as developers and government officials and many others may dislike the ‘not in my backyard’ attitude of land owners, there simply is nothing legally ‘improper’ about such a view or pursuing it — standing alone,” Prince said, in his ruling.

Prince also found that Cloutier’s argument against adding homes, in light of the county’s land-use code, has a legitimate basis to be heard in court. He did not come to a decision on whether the county was violating its own rule.

The El Paso County code states: “Where more than 25 lots would front and take access to a dead-end road, a second means of access shall be provided.”

The county commissioners chose to allow the 20 new homes because they do not front Hay Creek Road, even though it provides the sole access to those homes. The property owners and the developer also agreed to put in a cistern that would provide at least 33,000 gallons of water for fire protection.

An attorney for the developer and property owners, Spencer Sears, declined to comment on the ongoing case, as did Cloutier.

However, Cloutier has been clear in the past that he is concerned about fire evacuation, in part because he lives just east of a fire scar and wind howls over the mountains in that area.

Cloutier’s case is one of several in the Colorado Springs area that residents have filed against developments over wildfire evacuation concerns.

Westside Watch and Integrity Matters, two advocacy groups in Colorado Springs, did not participate in the case, but have been following it closely and cheered Prince’s recent decision.

“This ruling is a vital affirmation of the First Amendment. It sends a clear message that citizens have the right to stand against unsafe and ill-conceived developments without fear of legal retribution. The court’s decision is a win for community advocacy and public safety,” said Dana Duggan, co-founder of Westside Watch and Integrity Matters in an email. Duggan objected to the development during the county commissioners’ public hearing on it.

Kat Gayle, chief legal counsel of Westside Watch and Integrity Matters, also applauded the decision in a statement.

“This is a critical step in ensuring that citizens can hold government accountable without being silenced through litigation,” she wrote.

Westside Watch has fought several developments inside city limits over wildfire risk concerns. Both groups are also involved in a case with four other plaintiffs against Attorney General Phil Weiser, Gov. Jared Polis and the city of Colorado Springs over a new state law that requires residents to pay a local government’s attorney fees if they lose a court battle over a residential housing project of more than five units per acre.

The case claims the bill is unfair because it only requires residents to cover government attorneys fees if they are unsuccessful in court, not developers.

Senate Democrats celebrated the bill at the time saying it would address the housing and affordability crisis by limiting lawsuits that can slow down development.

Dense housing has been a top concern for residents in Colorado Springs and elsewhere as wildfires have become ever larger. A Gazette analysis from 2022 found that more than 100,000 Coloradans, or about 1 in 50, live in areas where safely evacuating could be a problem.

Residents in the Hay Creek Valley are boxed in geographically without a route for a second road. The valley is bounded by the Air Force Academy to the south, U.S. Forest Service land to the west and a conservation easement to the north.