HomeMy WebLinkAboutbocc.res.067.1999RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
DETERMINATION ON BISHOP FAMILY TRUST
TAKING HEARING FINDING NO TAKING
RESOLUTION #99- et, 7
RECITALS
WHEREAS, the Board of County Commissioners of Pitkin County, Colorado
makes the following findings:
1. The Bishop Family Trust ("Applicant") is the owner of a parcel of land
known as Lot 5, Bonanza Placer, Castle Creek Road, Aspen, Colorado (the "subject
parcel"). The abbreviated legal description of the subject parcel is "a parcel of land being
a portion of the Bonanza Placer M.S. 5840 located in Sections 13, 23 and 24 of Township
10 South, Range 85 West of the 6th p.m., Pitkin County, Colorado."
2. On January 27, 1999, by Resolution 99-22 , the Board of County
Commissioners ("BOCC") denied an application for the Bishop Family Trust 1041
Hazard Review, Conceptual Submission and Special Review for a TDR Receiver Site
(the "Bishop Family Trust land use application denial").
3. The Applicant applied to the BOCC for a takings determination hearing
pursuant to section 4-150 of the Pitkin County Land Use Code. The Applicant contended
that the Bishop Family Trust land use application denial constituted a taking of private
property without just compensation.
3. On February 24, 1999, at a public meeting, the BOCC considered the
evidence and testimony presented by the County Attorney's Office, the Community
Development Department and the Applicant on the issue of whether the Bishop Family
Trust land use application denial effected a compensable taking of private property.
4. After considering all of the evidence and testimony presented and made a
part of the record, the BOCC determined that no taking had occurred pursuant to section
3-290 and 4-150 of the Code. In addition to the record evidence that supports the
BOCC's determination, the BOCC makes the findings based on the evidence presented at
the hearing:
a. The Applicant knew or should have known when he purchased the property
that the subject property had no development right, its developability was constrained by
serious geologic hazards and that the Pitkin County Land Use Code prohibited development
in these hazard areas. Therefore, as supported by the following find ngs, the Applicant does
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not have a reasonable investment backed expectation to develop the subject parcel as
proposed in hazard areas:
i. At the time of the Applicant's initial acquisition in 1991, the subject
property had no development right associated with it.
ii. At the time of the Applicant's initial acquisition in 1991, the subject
property was within several mapped hazard areas, including: avalanche
hazard areas; slopes greater than 30%; areas of high visual vulnerability;
and proximity to critical, severe and normal Elk habitat and winter range.
iii. At the time of the Applicant's initial acquisition in 1991, the Pitkin County
Land Use Code prohibited development in avalanche hazard areas and on
slopes in excess of thirty percent (30%).
iv. The Applicant quit -claimed its interest in the subject property to Draper
Bank on September of 1992.
v. In 1993, Draper Bank filed an application for development approval seeking
1041 review and a growth management allocation on the subject property
which was denied due to the geologic constraints of and hazards on the site.
vi. In 1997, the Applicant re -acquired the subject property. Based on the
Applicant's testimony at the takings hearing, the Applicant received an
undisclosed amount of money from Draper Bank to take title to the subject
property. In effect, the Applicant paid nothing for the subject property.
vii. At the time of the Applicant's re -acquisition in 1997, the subject property
was within several mapped hazard areas, including: steep slopes and high
and moderate hazard avalanche zones.
viii. At the time of the Applicant's re -acquisition in 1997, the Pitkin County
Land Use Code prohibited development on slopes in excess of thirty percent
(30%) and in high hazard avalanche zones.
ix. At the time of the Applicant's re -acquisition in 1997, the Applicant was on
notice that a District Court Judge had taken the position that the Applicant's
lender, Draper Bank, had taken the property "with knowledge of the
physical access limitations" and that its acquisition of the property was
"speculative." The Applicant was further on notice that without the
development approvals the subject parcel only had a value of $350,000.00
according to Draper Bank.
x. Given the mapped hazards and the prohibitions of development contained in
the Pitkin County Land Use Code, it was not reasonable for the Applicant to
expect to develop the subject property as proposed.
xi. The Applicant's re -acquisition price of zero dollars, reflects the Applicant's
lack of expectation regarding the developability of the subject parcel.
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xii. The 1992 appraisal of the subject property submitted by the Applicant but
prepared for Draper Bank is based on faulty assumptions, including that the
subject parcel is developable with single-family uses in hazard areas. Other
appraisals also prepared for Draper Bank acknowledged that the subject
parcel may not be developable and valued it at only $350,000.00.
xiii. Despite the Applicant's zero dollar investment, the Applicant has already
made at least $400,000.00 from a lot line adjustment and sale of two acres of
the subject parcel to a neighboring parcel owner.
xiv. Any further development or economic retum that would benefit the
Applicant would constitute windfall profits.
b. The Applicant has not been denied all reasonable use and economic return in
connection with the denial of its development application and remaining potentially
beneficial uses of the property remain:
The Applicant through a lot line adjustment and sale of an approximately 2
acre portion of the subject parcel has already received an economic return on
the subject property of $400,000.00. Given the severe geologic constraints
on the developability of the subject property and the fact that the Applicant
acquired the property for nothing, the return already achieved by the
Applicant has exceeded his reasonable investment -backed expectations.
ii. Potentially beneficial uses of the subject property remain. The Applicant
may have the ability to seek safe access through a neighboring parcel, and it
may be possible for the Applicant to relocate the building site to a less
hazardous area. The Applicant has not applied to use the subject parcel with
a safer access way or safer building envelope location. In either case,
determining that there is no beneficial use that could be made of the subject
property is an impossibility at this point because the Applicant has not
received a final determination on either of these issues.
NOW THEREFORE, be it resolved by the Board of County Commissioners of
Pitkin County, State of Colorado, that the Board's denial of the Bishop Family Trust
1041 Hazard Review Application and Request for a Growth Management Quota System
Exemption for a TDR Receiver Site does not constitute a taking pursuant to sections 3-
290 and 4-150 of the Pitkin County Land Use Code.
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PUBLIC MEETING HELD AND TAKINGS DETERMINATION RENDERED ON
FEBRUARY 24, 1999.
ATTEST:
ndee Dean,
eputy Clerk
APPROVED AS TO FORM:
John M.
County Attorney
BOARD OF COUNTY
COMMISSIONERS
OF PITKIN COUNTY, COLORADO
Leslie Lamont, t� glAntrIrd
L ir
Date:
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MIA/6/99
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