Longtime Carbondale resident and former trustee Pam Zentmyer filed a complaint with the Town of Carbondale Wednesday, listing Town Clerk Jessica Markham and Carbondale Police Chief Kirk Wilson as recipients, regarding the fence surrounding the Aspen-Sopris Ranger District construction zone near the corner of Main Street and Weant Boulevard.
Dare-Case Contracting Services LLC erected the fence in early January. In a Jan. 2 press release, Aspen-Sopris District Ranger Kevin Warner stated, “With construction activity beginning, the public should stay out of the fenced area for their safety. Crews will be following the standard procedures for abating potential hazardous materials such as asbestos when removing older buildings.”
But, instead of protecting the public from abatement hazards, according to Zentmyer, the fence is creating a public safety hazard. And, it may be in violation of state and municipal codes.
The fence is four to five feet high and covered by an opaque mesh tarp. It extends along Main Street from the east side of the U.S. Forest Service (USFS) buildings to the western edge of the USFS property. The fence squeezes between the Community Tree and the main building, and runs south along Weant Boulevard to the edge of USFS property.
The main hazard, according to the complaint, is that the fence completely blocks portions of the sidewalks along Main and Weant and, despite a few signs telling the public “sidewalk closed, use other side,” forces pedestrians and cyclists into the street.
“The fence came first, then some cones, then some signs, and now we have what feels like a smattering of thoughtlessly placed signs that aren’t really communicating a clear route for pedestrians and bicyclists,” said Zentmyer in an email to The Sopris Sun.
Photos taken by The Sopris Sun in late January show footprints in the ice between the fence and vehicles using Main Street’s eastbound lane, which is also the main RFTA bus route through town. It is apparent that people have been walking in the street alongside the blocked sidewalk.
No permit for the fence
Results of a recent request to the Town, under the Colorado Open Records Act (CORA), for permits and applications related to the fence obstructing a public right-of-way, were shared with The Sopris Sun. An April 21, 2020 email thread emerged between Mike Ross of the USFS, Mark O’Meara, then-town utilities director, and Kevin Schorzman, the town’s public works director.
Ross asked O’Meara, “Does the Town have a policy or guidelines for contractors working in the Town right-of-way [ROW], and if so can you forward that to us?” O’Meara forwarded that question to Schorzman who replied, “The only ROW stuff would be that they need to be licensed with the Town, will need a street cut permit (including a traffic control plan) when working in the ROW and they will need to repair any damage in the ROW.”
But, Town Clerk Jessica Markham in an email included in the recent records request said, “There is no permit application or permit.”
In her complaint, Zentmyer stated, “To obstruct a sidewalk or road requires a prior permit application be made to the Town, and granted. To plan any excavation of our streets has a series of permitting and public safety requirements. None of the actions of the USFS in erecting a solid covered fence over the parking spots and sidewalk on Main Street and on Went [sic] Boulevard has conformed to the Town code.”
Carbondale-based attorney Kathy Goudy told The Sopris Sun that, because there is no permit allowing the fence to block the sidewalk, it could be considered a Fifth Amendment taking of property by the federal government. “It’s a taking because it’s public land no longer available for public use,” she said. “[The USFS has] taken it for their own use, they have not provided compensation for it and they have not provided a public reason why to do it.”
Zentmyer’s complaint states “Carbondale’s municipal ordinances deal directly with the unlawful taking of its sidewalks, roads and parking spots.” The complaint also cites possible violations of Colorado state statute CRS 42-4-703, in that the “totally covered fence violates state code for legal turns from Weant onto Main Street.” It adds “The fencing does not conform to either the Town’s step-down requirements for fences that obscure visibility for traffic at the corner, and no permit was sought to allow this unlawful fence.”
The complaint requests that the Town take several steps, including discussion about municipal ordinances related to the obstruction and hold public hearings for any future applications for right-of-way permits for this project. Zentmyer also requests that those who “unilaterally determined to block the streets and sidewalks” be summonsed for criminal obstruction of a public right-of-way and that the USFS “be required to consult with a traffic safety specialist” about the best way to sign and direct pedestrian, bicycle and vehicular traffic along streets and sidewalks disrupted during construction.
Zentmyer said that the right-of-way issue might have been better addressed had the project undergone a more thorough public process. Nonetheless, she wants to see it done right. “A government-owned project ought to be interested in being as low impact on its community as it possibly can be,” she told The Sopris Sun. “What we see today is not neighborly; it’s ugly, it’s in our face and it compromises safety. I want to help take a few steps back and get this better set up for the long duration we will be asked to circulate around it.”