HomeMy WebLinkAboutBOCC Packet 04112012 Gold Butte Acquisition
AGENDA ITEM SUMMARY
MEETING DATE:
April 11, 2011
AGENDA ITEM TITLE
:AN ORDINANCEAUTHORIZINGGOLD BUTTE
PROPERTY ACQUISITION.
STAFF RESPONSIBLE:
Dale Will
SUMMARYOF ISSUE:
In 2009 Pitkin County granted a Major Plat Amendments to Red
Butte Ranch(“RBR”) development approvals that was contingent on the conveyance of Gold
Butteand Sewer Falls to Pitkin County as open space assets. The deed proffered by RBR
contains restrictions that were unacceptable to the Open Space Board and staff. RBR
desires a hearing on whether the proffered deed comports with the approval. Staff
determined that the most applicable procedural step to bring this back to the BOCC was an
Ordinance on the acquisition with a staff recommendation of denial.
BACKGROUND:
The Major Plat Amendment on the Red Butte Ranch was contingent
on the conveyance of Gold Butte. The language of the Resolution of Approval describes
this as follows:
“Concurrent with recordation of the amended plat, the Applicant shall:
…Convey the Gold Butte rock climbing area and the Sewer Falls ice climbing
area to the County. The BOCC shall approve the property conveyance by
Ordinance. The Applicant shall provide an environmental assessment for the
areas, which shall be reviewed by the County Attorney prior to acceptance, unless
the County Attorney determines that there is no need for an environmental
assessment.The Applicant shall provide a title commitment for the areas, prior to
acceptance of the properties by the BOCC, and a title policy and a Baseline
Inventory Report, prior to conveyance of the properties. The Baseline Inventory
Report shall be reviewed and approved by the Open Space and Trails Director.”
The Resolution thus contemplated a simple “conveyance” and is silent on any potential
deed restrictions. Staff believes that a customary understanding of the Resolution would
require an outright conveyance with no unusual restrictions. RBR argues that such
restrictions were implicitly anticipated in so far as the public uses of Gold Butte as
discussed at the time were limited to rock climbing.
RBR has proffered a deed for Gold Butte that several restrictions. Some of these, such as a
leash law and fencing, were accepted by OST staff. However, two items have caused an
impasse. First, in seeking to address the scope of possible public activities, OST
suggested that uses be limited to “passive recreation” consistent with the County’s general
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rules for its open space lands. RBR want this further limited, to state “Parcel 1 (Gold
Butte) shall be used only: (i) for rock climbing by members of the public; (ii) passive
interpretative educational activities and wildlife protection; and, (iii) for the Trail Uses
(defined below) along established trails within Parcel 1 existing on the date of recording
this Deed that were subject to easements for trail purposes previously granted to the
Grantee. Parcel 2 (Sewer Falls) shall be used only as an area for ice climbing by members
of the public.”
Secondly, and perhaps more significantly, the RBR deed provides for private enforcement
of use restrictions directly against the public on the property. While OST proposed to rely
on our own rangers, RBR insists that their employees would also have authority to police
public behavior on land owned by Pitkin County. There is no precedent for such a deed
restriction.The County Attorney determined that it is problematic to have a private entity
able to substitute its judgment for our own rangers regarding enforcement of public use
restrictions.
The Open Space and Trails Board is authorized under the County Charter to advise the
BOCC on land use referrals affecting open space assets. On July 11, 2011, the Open Space
Board reviewed RBRs request and determined that the reservations would undermine the
“conveyance” contemplated and rejected the form of the deed.
KEY DISCUSSION ITEMS (ALTERNATIVES):
The conveyance of Gold Butte and
Sewer Falls is a condition of the Major Plat Amendment. Without satisfaction of this
condition, this approval cannot be completed. The BOCC could also approve the attached
Ordinance which authorizes the Chair to execute the deeds once they are in a form acceptable
to the County Attorney and Open Space Director.
BUDGETARY IMPACT
: Acceptance of Gold Butte and Sewer Falls would add two assets
to the Open Space program, which would have ongoing maintenance and management costs
that would be added to the programs other responsibilities.
RECOMMENDED BOCC ACTION:
Staff recommends that the Board of County deny
the attached Ordinance on first reading.
ATTACHMENTS:
1.AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO, Authorizing Gold Butte Property
acquisition.
2.Proposed Bargain and Sale Deed
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AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERSOF PITKIN
COUNTY, COLORADO, AUTHORIZING GOLD BUTTEPROPERTY
ACQUISITION.
ORDINANCE #_, SERIES OF 2012
RECITALS
1.The Voters of Pitkin County and the Pitkin County Commissioners established an Open
Space and Trails Fund for the purposes of preserving and providing open space and trails
resources, and established an Open Space and Trails Board of Trustees to guide the
expenditure of those funds.
2.The Open Space and Trails Program is charged with protecting agriculture, open space,
habitat, scenic view planes, and recreational routes on public lands.
3.The Red Butte Ranch Major Plat Amendment was contingent on the conveyance of Gold
Butte and Sewer Falls to become county owned open space properties.
4.On July 14,2011, thePitkin County Open Space and Trails Boarddetermined that where a
BOCC Resolution contemplates the “conveyance” of lands to the open space program, the
prior owner should not restrict or enforce public uses on said lands following the
conveyance.
NOW THEREFORE BE IT ORDAINED
by the Board of County
Commissioners of Pitkin County, Colorado, that:
1.
Upon approval of the form of the deeds for Gold Butte and Sewer Falls by the
Open Space Director and County Attorney, the Chair is authorized to accept them.
INTRODUCED, FIRST READ, AND APPROVED ON THE 11th DAY OF
April, 2012.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES
WEEKLY ON THE ____ DAY OF _________ 2012.
CONFIRMED UPON SECOND READING AND PUBLIC HEARING ON
THE ___________________.
PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE
ASPEN TIMESON THE ______DAY OF _____________, 2012.
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ATTEST: BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
______________________________ ______________________________
Jeanette Jones Michael M. Owsley
Deputy Clerk Chair
Date: _________________________
APPROVED AS TO FORM:
______________________________ _____________________________
John Ely Jon Peacock
County Attorney County Manager
_______________________________
Dale Will, Director
Open Space and Trails Program
Ordinance _______-2012
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BARGAIN AND SALE DEED
RBR12, LLC,a Colorado Limited Liability Company and the Red Butte Ranch
Homeowners Association, Inc., a Colorado not for profit corporation, of the County of
Pitkin, State of Colorado (each hereinafter referred toas a “Grantor” andcollectively as
"Grantors") whose address is C/O Hurst, 500 Jalanda Lane, Aspen, Co. 81611 of the
County of Pitkin, State of Colorado for Ten Dollars and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, herebysells and
conveys to the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY
COLORADO (hereinafter called "Grantee”) whose address is __________________,
Aspen, Colorado, 81611, the following real property in Pitkin County Colorado, subject
to the covenants and conditions contained herein: The real property described on Exhibit
A, attached hereto and incorporated herein by this reference (the “Property”). The
Property contains two parcels identified as “Parcel 1” and “Parcel 2” on Exhibit A.
WHEREAS, GrantorRed Butte Ranch Homeowners Association, Incis
the owner in fee simple of the Open Space Parceland Grantor RBR12, LLCis the owner
in fee simple of Lot 1, both (referred to herein as “Grantors’ Property”)as shown on and
described on the Plat map for theRed Butte Ranch Subdivision/PUD, which plat has
been filed for record in the real property records of Pitkin County, Colorado, on the
_____ day of _____________, 2011 in Plat Book____ at Pages ____________
(hereinafter referred to as "Plat"); and
WHEREAS, Grantors have agreed to convey to the Property to Grantee
subject to the following terms and conditions; and,
WHEREAS, Grantee accepts the Property conveyed hereby and agrees to
the terms and conditions contained in the Covenants set forth below.
Covenants Between Grantor and Grantee:
(a)Use Restrictions. Parcel 1 shall be used only: (i) for rock climbing by
members of the public; (ii) passive interpretative educational activities
and wildlife protection; and, (iii) for the Trail Uses (defined below)
along established trails within Parcel 1 existing on the date of
recording this Deed that were subject to easements for trail purposes
previously granted to the Grantee. Parcel 2 shall be used only as an
area for ice climbing by members of the public. Rock climbing and ice
climbing shall collectively be referred as the “Uses.” “Trail Uses”
shall be limited to non-motorized pedestrian, bicycle riding and
horseback riding activities. Subject to the specific provisions contained
herein, the Uses and Trail Uses shall be regulated by the Grantee
according to Title 12 of the Pitkin County Code, and may be further
limited by a management plan adopted by Grantee. Said plan shall
incorporate the restrictions contained herein. In the event of any
conflict between the provisions of Title 12, the Management Plan and
this Deed, the provisions that are most restrictive of the uses and which
provide the most protection to Grantor’s quiet enjoyment of Grantors’
Property shall be given effect. The Uses shall not be allowed prior to
the adoption of said plan. No other uses are permitted, unless Grantee
first obtains the written consent of Grantor thereto, which consent may
be withheld in Grantor’s sole discretion.
(b)In order to prevent trespass onto Grantors’ Property, Grantor shall have
the right to construct a fence along the common boundaries between
Parcel 1 and Parcel 2 of the Property and Grantors’ Property. Said
fences shall be wildlife friendly in design. Said fences may each have a
gate installed at a reasonable location selected by Grantor to facilitate
access by Grantor to the Property. Grantor may install a lock on said
gates to prevent trespass onto Grantor’s Property.
(c)Grantee shall post “No Trespassing” signs along the common
boundaries between the Property and Grantors’ Property. Said signs
shall be posted not less than 300 feet apart.
(d)Dogs shall be leashed on Parcel 1 and prohibited on Parcel 2.
(e)Grantee shall construct, install and maintain a sign at a location
reasonably selected by Grantors on each of Parcel 1 and Parcel 2
acknowledging Grantors’ dedication of said parcels. The attribution
shall be selected by Grantors and shall be appropriate and reasonable
under the circumstances.
(f)The Uses and Trail Uses shall be permitted only from the hours of
sunrise to sundown. No motorized equipment or vehicles shall be
permitted on the Property. Loud noise, amplified sound and activities
which would constitute a nuisance are prohibited.
(g)The Grantee shall be responsible for enforcing the restrictions
contained herein, and as further provided in Title 12, section .04.080 of
the Pitkin County Code. Grantors shall also have the right to enforce
these restrictions. In any such action, Grantors shall be entitled to
obtain injunctive relief, without the necessity to post a bond, in
addition to other remedies that may be available.
These covenants and restrictions shall be binding upon and inure to the benefit of the
Grantors and the Grantee and their respective successors and assigns, and shall be
deemed covenants running with the title to the Property and Grantors’ Property.
Dated: _____________, 2011
GRANTOR:
Red Butte Ranch Homeowners Association, Inc.
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By:_________________
Robert J. Hurst, President
STATE OF ______________ )
) ss.
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, 2011, by ___________________________ as
_____________________ of ____________________, a _____________________, as
Grantor.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
Notary Public
My commission expires: _______________
GRANTOR:
RBR 12, LLC
By:__________
Soledad DeLeon Hurst, Manager
STATE OF ______________ )
) ss.
COUNTY OF ____________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, 2011, by ___________________________ as
_____________________ of ____________________, a _____________________, as
Grantor.
WITNESS my hand and official seal.
[SEAL]
__________________________________________
Notary Public
My commission expires: _______________
ACCEPTANCE BY GRANTEE
The foregoing Deedand its terms are accepted by
The Board of County Commissioners of Pitkin County, Colorado.
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BOARDOF COUNTY COMMISSIONERS OF PITKIN COUNTY COLORADO
BY:
TITLE:
Mailing Address: ____________________
Aspen, Colorado 81611
STATE OF COLORADO )
) ss.
COUNTY OF PITKIN )
The foregoing instrument was acknowledged before me this day of
, 2011, by .
WITNESS my hand and official seal.
My commission expires:
Notary Public
APPROVED AS TO FORM:
PITKIN COUNTY ATTORNEY
BY:________________________
John Ely, Esq.
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