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Home My WebLink Aboutbocc.res.095.2008REC~PTION#: 552119, 08/19/2408 at 04:Q2:~2 ~M, 1 oF 6, ft $0.00 Doc Code RESOLUTION Janice K. Vvs Cauclill, Pitkin County, CO A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO RESPONDING TO NOTICE OF VIOLATION OF ASPEN VALLEY RANCH, LLC PURSUANT TO C.R.S. § 29-20-204 RESOLUTION #~-2008 RECITALS 1. On June 23, 2008, the BOCC approved a Resolution granting partial approval of the Aspen Valley Ranch Amendment to Development Permit, Special Review, GMQS Exemption and Designation to the Pitkin County Historic Register. 2. During the public heaxing on the application, facts were presented to the BOCC that a public road or roads traversed the ranch property of.the applicant, extending from the County road nominated as Upper River Road to the federal public lands beyond the applicant's ranch property. 3. As a result, the BOCC's conditional approval reflected condition #3.A: Be required to submit for approval by the County Attorney an amended Subdivision Exemption Plat that depicts the roads shown on the United States Survey for Township No. 9 South, Range No. 85 West of the Sixth Principal Meridian, as surveyed, examined and approved in November, 1888, as those roads cross the subject property. The plat shall be accompanied with an appropriate plat note of explanation approved by the County Attorney. Until the BOCC determines that there is insufficient evidence to pursue a public access claim across the subject property, or until it is judicially determined that there is no such public access, or such road as shown on the 1888 Map is either vacated, relocated or determined to be in an altemative location, no development, except intercepting roads, shall be permitted within the area 30' on either side of the centerline of such road. 4. The applicant objects to this condition and has filed a Notice of Violation pursuant to C.R.S. § 29-20-203(2). A copy of the Notice is attached to this Resolution. NOW THEREFORE, BE IT RESOLVED, by the Board of County Commissioners of Pitkin County, Colorado, pursuant to C.R.S. § 29-20-204(1)(b): 1. 'That facts were presented at the hearing to demonstrate the existence of a road system from the County road through the applicant's property to the public land beyond in the form of a United States survey for Township 9 South, Range 85 west of the 6`h Principal Meridian as examined and approved in November 1888 as surveyed in 1887. Resolution # 5 -2008 Page 2 2. That the patents for the first private property in the area were issued after the survey date in 1889 to Benedict Bourg and Frank Frasson. 3. There are no other facts to indicate that these roads were ever moved or relocated to any other locadon. 4. Prior to the issuance of the patents, homestead applications were filed on the dates of 1885 and 1886 for Benedict Bourg and Frank Frasson respectively. 5. Pursuant to Lee v. Masner, 45 P.3d 794 (Colo. App. 2001), the date for the withdrawai of land from the public domain relates back from the issuance of a patent to the date of entry of homestead. ~ 6. The use necessary to establish a road over lands of the public domain can be very limited and can be established by the use of only one individual. Leach v. Manhart, 77 P.2d 652 (Colo. 1938). 7. Newspaper articles entered into the record by applicant's counsel at the public hearing demonstrates that the land which now constitutes the applicant's ranch had been entered before the application for homestead rights, and that in fact the land had been put to productive use in agriculture prior to application for homestead rights. 8. The roads established to serve the use of these agricultural operations necessarily predates the entry of homestead. 9. There is no record of abandonment or vacation of these roads established over the public domain by the Board of County Commissioners. Use of these roads has continued by at least some members of the public from time to time as stated in the public hearing. 10. As a part of the County roads system, it would be inconsistent with the Pitkin County Asset Management Plan to allow unpermitted work or impediments to occur on the County roads. 11. To allow structures to be built on a County road or right-of-way without formal vacation of the road would violate C.R.S. § 43-2-303. BE IT FURTHER RESOLVED by the Boazd of County Commissioners of Pitkin County, Colorado, that the Aspen Valley Ranch, LLC application and conditional approval will proceed as proposed pursuant to C.R.S. § 29-20-204(1)(b). APPROVED AND ADOPTED ON THE 19TH DAY OF AUGUST 2008. Resolution ~ ~-(g -2008 Page 3 ATTEST: APPROVED AS TO FORM: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ~ ~~ ~ J c Hatfield, C irman Date: ~ ~ ~ ~ _~rL~ ~~~ \ ~,l Y~ c~ ~-~E-- Cindy Houben, Director Pitkin County Community Development THE MYLER LAW FIRM, P.C. DnvID J. Mn.ER' A Colorado Professional Corporatioa T~~KO~ (970) 929-0436 RoBrri J. Mn,~at':' Fwcsu~t[c.e (970) 927-0374 nnNnrreo nv co~. rnr. cT~ 211 Mwi.nt~m AvEt+Us Stttre 201 . dmyler(~mykr~a ~.co~m B~snt.T, Cowitnno S 1621 m~yler~mYlalawpc.can RHONDA E. NEFF, L6GA1, pSSISTANI' metij~mylaiawpc,com CoMi1EA. WOOD, I.EGALASSI57MTI' CWOOd([~R1yICfItVYjlc.C01i1 ~uly 22, 2oos Via Email and Hand Deliverv jeanette@co.pitkin.co.us ~ Board of County Commissioners Pitkin County 530 East Main Stteet Aspen, CO 81611 RE: Aspen Valley Ranch Notice of Violation Pursuant to C,R.S. 29-20-2Q3(2) Ladies and Gentlemen: I am writing on behalf of Aspen Valley Ranch, LLC ("AVR"). On June 23'd, the Board of County Commissioners ("BOCC") approved various modifieations to a previous approval for a project known as Aspen Valley Ranch. Staff was directed to revise the~draft Resolution presented at the Jvne 23"' meeting in order to reflect amendments approved by the BOCC at that time. Although the final approva! Resalution {Resolution No. 08 i-2Q08) has not yet been signed, it is expected to inctude the following condition: 3.A. Be rcquired to submit for approval by the County Attorney an amended Subdivision Exemption P[at thttt depicts the roads shown on the United States Survey for Township No. 9 South, Range No. 85 West of the Sixth Principal Meridian, as surveyed, examined and approved in November, I 888, as those roads cross the subject property. The plat shall be accompanied with an appropriate plat note of explanation approved by the County Attorney. Until the BOCC determines that there is insufficient ovidence to pursue a public aecess claim across the subject property, or until it is judicially determined that there is no sueh public access, or such road as shown on the 1888 Map is either vacated, roIocated or determined to be in an alternative location, no development, except intercepting roads, shall be permitted withinthe area 30' on either side of the centerline of such road. While we greatly appreciate the BOCC's approvals, it has become apparent that condition 3.A. witl create a substantiat degree of uncertainty regarding title to the properiy in question, will unreasonably interfere with the use of that praperty and, in the end, ia nat necessary in order for the BOCC to preserve the potential for public access claims based upon histaric use. Consistent with objections to this condition made by AVR at the June 23rd hearing, we request that Resolution No. THE MYLER LAW FIRM, P.C. Pitkin County Board of Couniy Commissioners July 22, 2008 Page 2 481-2U08 be fiuther amended by deleting Condition 3.A. In support of this requcst, we ofFer the foilowing: AVR believes that Condition 3.A. constitutes a"discretionary condition" upon a land use approval which is not hased on duly-adopted standards that aze sufficiently specific to insure that the condition is being imposed in a rational and consistent manner. As such, the condition violates C.R.S. 24-2Q-203(2) and is subject to invalidation under C.R.S. 29-20- 204(2)(d) and (e). This letter shail constitute noticc of a viol~,on Qf C.R.S. 29-20-203(2) which reauires a res~nse bX the BOCC within thirtv (30,~ davs. 2. Even if the County had standazds as required by C.RS. 29-20-203{2), therc has been no credible evidence submitted in the record through the June 23'~ hearing wbich supports the existence of a public raad or a public right of access through Aspen Valley Ranch arid thus no evidenae in support of Condition 3.A. It is thus unreasonablc and likely an abusc of discretion for thc BOCC to require th~t the Subdivision Exemption Plat for Aspen Valley Ranch degict a road that does not physically exist and where the legal status of that road has yet to be determined. This is particularly true where the burden of proving public access ties with the County and not with AVR, where there is no evidence in the record before the BOCC in support of public access and where there is significant evidence to the contrary. Degicdng the road on a recorded Plat constitutos a ctoud on the title to Aspen V alley Ranch, potentiaily rendering that title unmerchantable and exposing the County to a slander of title claim. 3. It is also unreasonabte and likely an abuse of discretion for the County to prevent construction of improvements within the alignment of the road as shown on the l 888 Map in the absence of a determination that the road is public, particularly when there is no credible evidence in the record to support public access. Such a requircment effective[y denies the Applicant the benefits of BOCC approval as set forth in Resolution No. 081-2U0$ and denies the Applicant of the use and enjoyment of a 60 foat strip of its land without compensation. Since the BOCC is required ta cansider this Notice of Violation and respond to AVR with thi rty (30} days, we suggest that we utilize the s#ateitory process to discuss a resolution of this matter. Such a resolutian could take the form of an amended condition of approval wherein Aspen Valley Ranch will be required to acknowledge that Resolution No. 081-2008 does not operate to waive or vaeate any rights which the County may have to assert public access claims. AVR is also willing to reconfirm its prior represcntatian that, ifpublic access is established across Aspen VaIley R.anch, AVR will grant a perpetual easement over one or more of the roadways then in place in order to accommodate public access, provided that the Coeurty ~vacates any and all rights of access across Aspen Valley Ranch except as provided in the easement. Amending the condition of approval as suggested does not etiminate the potential for a public access claim and AVR certainly understands the risks of proceeding with develapmsnt activity until TRE MYLER LAW FIItM, P.C. Pitkin County Board of County Commissioners July 22, 2008 Page 3 the public access issue is resolved. However, we are not willing to provide disclosures or agrec to restrictions on use which, in ei~'ect, assume the existence of a valid public access claim. We will continue to share information with the County Attorney's off'ice relating to public access in a good faith attempt to resolve the matter without the necessity of contested litigation. In addition, we are in the process of preparing a pmposal for a new trail easement which will expand the opportwuties for public access and provide for a new alignment which will avoid the use of Ranch roads and greatly enhauce the trail use experience. We anticipate that a proposal will be submitted for your consideration within the next 7 to 10 days and thus can be reviewed in conncction with a review of Condition 3.A. We expect that, if the new easement is acceptable to the BOCC, any potential pnblic acaess claims across Aspen Va]ley Ranch will be vacated in exchange for the establishment of the new, expanded, public trail easement. Very truly yours, THE MYLER W FIRM, P.C. By: David J. Myl cc: Wade Stribling (via email) Richard Holland (via email} Chad Holland (via email) Glenn Horn (vicr email) John EIy (via email)