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Home My WebLink Aboutbocc.res.041.1999RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, DETERMINATION ON DIMATTEO 1041 HAZARD REVIEW, CONCEPTUAL SUBMISSION AND SCENIC OVERLAY REVIEW TAKING HEARING FINDING NO TAKING Resolution No. 99-./ RECITALS 1. The Board of County Commissioners ("BOCC") of Pitkin County, Colorado makes the following findings: A. Mary Ellen Di Matteo ("Applicant") is the owner of the subject property at 1121 Red Mountain Road, which is referred to as Lot 1-A, Block 3 Revised, Red Mountain Subdivision according to plat filed July 28, 1956 in Plat Book 3 at Page 182, Pitkin County, Colorado. B. On July 20, 1999, by Determination No. 99-19, the Pitkin County Hearing Officer denied the Di Matteo 1041 Hazard Review, Conceptual Submission and Scenic Overlay Review application because the proposed development encroached into slopes of 30% and greater which is prohibited pursuant to Section 3-80-050(C)(2) of the Pitkin County Land Use Code ("Code"). C. The Applicant applied to the BOCC for a takings determination hearing pursuant to section 4-150 of the Code. The Applicant contended that the Di Matteo Land Use application denial constituted a taking of private property without just compensation. D. On August 11, 1999, at a regularly scheduled 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 land use application denial effected a compensable taking of private property. E. 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 record evidence that supports the BOCC's determination, the BOCC makes the following findings based on the evidence presented at the hearing: 1) Slopes. Section 3-80-050(C )(2) of the Code prohibits development on slopes greater than 30%. The only exception to this prohibition is when there is no area on the site with slopes less than 30% and if the BOCC finds that a taking has occurred. The slope calculation provided with the application indicates that 18,156 square feet of the 37,480 square foot property is encumbered by slopes in excess of 30%, therefore, approximately 19,324 square feet of the property is not encumbered by slopes in excess of 30%. There are substantial areas on the property where development may potentially avoid slopes in excess of 30%, therefore there is no taking. The Applicant may reapply for approval to develop on the portion of the property that does not contain slope hazards, as provided by the Code. 2) Reasonable Investment -Backed Exceptions. The Applicant knew or should have known when she purchased the property that the developability of the subject property was constrained by slopes and setbacks, and that the Pitkin County Land Use Code prohibited development in these areas. Therefore, 11111E 111E 1111E 111E111E111E1111EIII lit ItIIII 436620 10/14/1999 01:39P RESOLUTI DAVIS SILVI 1 of 3 R 0.00 D 0.00 N 0 00 PITKIN COUNTY CO Resolution No. 99-1/4 Page 2 as supported by the following findings, the Applicant does not have a reasonable investment backed expectation to develop the property as proposed in slopes of 30% and greater: i. The Applicant purchased the property in February of 1999 for $1,750,000. ii. The Applicant already has a reasonable use of the property by virtue of existing structures on the property, which also provide rental income. iii. The property is not part of BOCC approved subdivision, therefore, 1041 Hazard Review is required for any re -development of the property. iv. The following information was visible and/or of record at the time of the Applicant's purchase: a) The assessed valuation at the time of the Applicant's purchase of the property was $137,200 and the actual value was $1,407,800. b) At the time of the Applicant's acquisition of the property, the Pitkin County Land Use Code prohibited development on slopes greater than 30%. v. On March 19, 1999, the Applicant's representative ("Representative"), Janver Darringtion of Charles Cunniffe Architects conducted a pre -application conference with the Community Development Department. The Representative was informed that slopes may be an issue on the property. A slope analysis was not provided during the pre -application conference. The applicant did provide a slope calculation of the property. Staff prepared a memorandum to the Pitkin County Hearing Officer recommending denial of the applicant's request because section 3-80-050(C )(2) of the Code prohibited development on slopes greater than 30%. The Hearing Officer agreed with staffs analysis and forwarded a recommendation of denial to the BOCC. vi. The valuation of the property is unaffected by the BOCC denial of the Applicant's application. Both before and after the BOCC's denial, the assessment of the property is the same. Thus, the Board's actions have had absolutely no effect on the value of the property. vii. Given the reasonable investment backed exception of the Applicant — a purchaser who paid $1,750,000 for the property constrained by hazards — and the other facts of record at the time of purchase, the Applicant did not have a reasonable investment backed expectation to develop the property with a single-family dwelling unit in a hazard area. 3) Reasonable Use, Economic Return and Remaining Beneficial Use The Applicant has not been denied all reasonable use and economic retum in connection with the denial of its development application and remaining potentially beneficial uses of the property remains: i. Beneficial uses of the property remain. The property is current improved with a 1,344 square foot primary residence and a 1,030 square foot guesthouse. An appraisal submitted by the Applicant estimated the value of the property vacant at $2,000,000.00. ii. The Code does not allow development on slopes of greater than 30% except if there is no area on the site with slopes less than 30%, and/or the development proposed does not comply with the criteria of Section 3-80-050(C )(2)(a), or if the BOCC finds that a taking has occurred. Because 111111 UM iillll iilll ill 11111 IIII 436620 10/14/1999 01:39P RESOLUTI DAVIS SILVI 2 of 3 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO Resolution No. 99 ] I Page 3 a portion of the property is outside of the slope hazard areas, and the Applicant has not sought development in that potentially hazard -free area, the Code does not allow the BOCC to authorize development under any circumstances. 4) Ripeness. The Applicant's request that the BOCC find that a taking has occurred is not ripe for review. The Applicant has failed to exhaust all possibilities for development of the property, hazard free areas exist on the property and the Board of Adjustment may permit some development within the setbacks. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County, State of Colorado, that the Board denial of the Di Matteo 1041 Hazard Review, Conceptual Submission, and Scenic Overlay Review does not constitute a taking pursuant to sections 3-290 and 4-150 of the Pitkin County Land Use Code. PUBLIC MEETING HELD AND TAKINGS DETERMINATION RENDERED ON AUGUST 11, 1999. ADOPTED ON AUGUST 11, 1999. ATTEST: ee R. Dean, lerk to the Board APPROVED AS TO FORM: John Ely County Attorney Case #P56-99 PID #2735-063-04-001 carevm109/22/99 BOARD OF COUNTY COMMISSIONERS PITKIN COUNTY': COLORADO Leslie J. L Chair Date(`k. IcQ, 1999 APPROVED AS TO CONTENT: 99 Cindy Houben, Community Development Director IIIIII 11111 111111 III IIIII 11111 IIIIII III 11111 1111 1111 430020 10/14/1099 01:39P RESOLUTI DAVIS SILVI 3 of 3 R 0.00 D 0.00 N 0 00 PITKIN COUNTY CO