HomeMy WebLinkAboutbocc.min.spec.11101987 `���: _ . ......_ .. ..
BOARD OF COUNTY COMMISSIONERS "�'�`��'�� '
REGULAR MEETING A6ENDA ��'��i-;,;,.
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TUESDAY 10 NOVEMBER, 1987
9:00 PUBLIC HEARING: Roaring Fork Railroad GMP 8
Rezoning (CH, TB)
10:15 A.M. Break
12:00 Lunch Break '
1:30 P.M. Roaring Fork Railroad GMP 8 Rezoning, Continued -
�:-':r;.
2:25 ADJOURN :�;`:'';'•',
i�:_:
WORK SESSION .:�,-� .�''
�: ' .
2:30 Airport Pro�ects Update, Ed Thurmond 8 Tom Oken ,� �
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3:00 ADJOURN
�.,
RE6ULAR MEETING
4:30 p.m. Executive Session: Attorney Quality Time ;�.
'� �
•• S:OU PUBLIC COMMENT/MANAGER COMMENT ' .
, 5:15 PUBLIC HEARING
' Jaffee Donation of Eesements (TFS)
IAND USE
. l 5:3U Ashcroft Rezoning (GH) [1/2 hour)
; ilfllfams Lot Split (GN)
Aspen Valley Hospital pssisted Livi�g Center 6MP
Exemption 8 Special Review (fK)
I
Aspen/Snowmass Consolidated Sanitation District
� Sludge Site Review (FK) '
7:15 BREAK
ADMINIS7RAIION
RESOWTIONS
! 7:30 Oden Lot Split 1041 Floodplain Reso. (FK) �
Gramiger Lot Line Ad�ustment Reso (FK7 `!��
Solid Haste Center Future Land Use Plan Reso (TN]
' New Frontier Seismic Exploration (CH) 'S
NWCC06 Block Grant Agreement, Mark Fuller
AirportPaid Parking Letter of Intent, 6SE
Airport Necessity Shop Letter of Intent, 65E
' Workers' Compensation - Request for Proposals, �'� ` ` .
Bill KipP 1.::=.:`,_=i
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9:00 ADJOURN w3 ��?'i;:,,
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MINIITES
BOARD OF COUNTY COMMISSIONERS
SPECIAI, MEETING
NOVEMBER 10. 1987 �`�'.: :
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MEMBERS PRESENT: Chairman George Madsen, Commissioners Colette ��
Penne, Bob Child and Fred Crowley.
CALL TO ORDER: Chairman Madsen called the meeting to order at ',�
9:20 a.m. �f"�
j�:;'1'
PITBLIC HEARING - ROARING FORIC a7�0AD GROWT$ MANAGIIYEN'p AND
SPECIAL 12EVIEW - MOTION TO TABLE TO DATE UNCERTAIN - AIFMC- �'� �;
,. Cindy Houben from the Planning Office, outlined the request by �
stated that the Roaring Fork Railroad has made application for a �`
Growth Management allocation for a railroad station ahd is
requesting a rezoninq from RS-20 to AF-1. In addition, the
applicant is requesting special review approval to allow the
train station in the AF-1 Zone District. The requested activity
is an activity of State and Local Interest and is located in area
of State and Local interest (1041).
The application has been reviewed by the Planning Commission
which recommended approval of the application with conditions. ;
The P&Z, however, did not make any recommendation with regard to
the question of the quantity of land to be subdivided. At this
time, the Board must make a determination regarding the ques-
tions of subdivision and rezoning. The Planning Office and �
County Attorney believe that the appZicants have not satisfied
the underlying zone district minimum lot size requirements (in
either the RS-20 or the AF-1 zone districts) . In addition, the
Planning Office and the Planning Commission do not support the
requested rezoning of the parcel.
She commented that the Board must first deal with the threshold �
issues of the development proposal prior to looking at the "
specifics of the proposal. If these issues cannot be addressed
satisfactorily to the Board then the Planning Office recommends � ,
denial of the application, if these issues can be resolved in � �
accordance with the Land Use Code, then the Planning Office '�
recommends approval of the application with conditions as set
forth in Resolution 87-19. '�
�`. . •
� .�
They have requested that the applicant correspond to the Planninq '
Office with regard to these issues. Their attorney has been in �!+
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touch with the County attorney with regard to the legalities of
the subdivision question and Sonny Vann has also written a letter
with regard to the rezoning of some of their concerns with regard
to rezoning the property.
The applicants contend that the Mills parcel is actually zoned
AF-1 and that the current zoning maps which designate the
property RS-20 are incorrect. The county attorney disagrees with
the applicants. She referred to a memorandum dated August 12,
1987 from Tom Smith, County Attorney. This memorandum is
attached to and made a part of these minutes as Exhibit ��A". •' �'�
��:`.:� . .
The most significant issue is that of subdivision. The ap-
plicants propose to create a 14 acre parcel for the train ;`
terminal and its associated facilities. This parcel would be j �
created by fee simple ownership, an easement and long-term lease
agreement. The Planning Commission felt that they could not make i�
a recommendation with regard to the subdivision request because �''�
of outstanding planning and legal questions. She referred to a �
letter submitted by the applicants to the county attorney dated �•.����.
September 30, 1987. This letter is attached to and made a part
of these minutes as "Exhibit "B". The county attorney�s response
to this letter is also attached to and made a part of the minutes �
as �xhibit "C". It is the county attorney's opinion that the k�
applicants do not have enough acreage to meet the minimum lot t
size requirements in either the AF-1 zone district or the RS-20
zone district, because the code does not permit an applicant to
use an easement to meet the minimum lot size requirements in a
zone district.
Sonny Vann, Planner for the applicant, stated that the Code is
, specific in that it states "that no subdivision of land shall be
deemed to occur merely by reason of the establishment of a public
right-of-way for access purposes across such land without regard
as to whether how such right-of-way is acquired by dedication or �
establishment of prescriptive use." Their position is that they
have a fee simple Parcel A which is the site of the station. �
They have a private right-of-way for pedestrian/vehicular access
across Parcel D and C. It is acquired in part in lease hold
interest and a part in easement, it is a right-of-way. Code
specifically precludes the establishment of such rights-of-way in
creating subdivided lots. He further stated that it is defined
as subdivision because of wanting to review it under State
Statute for the appropriateness of it. However, you specifically �
exclude it from creating adjacent non-conforming parcels. �
They have researched the issues mentioned and their position has
always been that the property is in fact zoned AF-i where the : 4
minimum lot requirement is l0 and they provided 14 because they ��
wanted a contiguous right-of-way all the way down to the Jaffee
Hill so they could provide a trails easement. .. �' .' ,
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With respect to the easement problem, he feels there is nothing � �-
in the County Code that precludes the inclusion of an easement as �y:'
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� part of a lot. However, there is a requirement that for purposes
of calculating lot area, a right-of-way cannot be included. They
have offered in order to resolve that problem to eliminate the
, area of D from the total parcel size.
A discussion ensued with regard to the applicant having the
minimum acreage required. Randy Parten stated that he has met •
with Wally Mills with regard to acquiring the 10 acres. However,
he does not feel that negotiations will prove successful in the _
near future. �``'`.
�'�°;r'-;._
After further discussion with regard to the debate by both the �'�t;j=`;; -
applicant and the county attorney of the issues, Penne moved to
table the issue until two weeks from today, the Roaring Fork ft��;,.,''
Railroad Growth Management and Special Review, allowing the ap- �,� -
plicants the opportunity to negotiate with Mills to acquire the �,
additional three acres of land needed. Crowley seconded and the ��� �
motion passed AIFMC. �.:•-
ADJOIIRNMENT - The meeting was adjourned at 10:35 a.m. L5,
pectfully bmitted, '�
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Jeanette J es
Recording Secretary BOCC
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BOARD OF G0.C4h4M'R'S p� � Z ::-�:
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I�ITy.IPI COIt�TY
Pubfir.�2urir•g r}:�,iuiis , . .__..
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Exh. Pi.?. __
MEMORANDUM
TO: Cindy Houben, Planning office �'�=•�''
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FROM: Tom Smith, County Attorney y� ;+;�-
DATE: August 12, 198? � '
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RE: Roaring Fork Railroad GMP General Submission -
Zoning Issue ���
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The Roaring Fork Railroad Company asserts, at page 91 of its 1,
application, that the zoning maps notwithstandinq, the area in �s'',� �
question is zoned AF-1 and not RS-20 PUD.
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_:�,"?CfIt is my opinion that the proper zoning of this property is RS-
�' 20, as shown on the applicable County zoning maps. A summary of
� , the basis for this opinion follows.
The County zoning maps are entitled to a legal presumption of
validity. The key issue in resolving the question of zoninq
applicable to this property is the intent of the Board of County
` Commissioners in adopting the applicahle zoning resolutions and
maps. ;,
By Resolution No. 76-24, the property was zoned RS-160. Prior to
that date the applicable zoning was AF-1. By Resolution No. 77-
33, the property was rezoned to RS-20. Since this latter �
Resolution involves simply a wholesale conversion from RS-160 to
RS-2o, the key events involve the approval of Resolution No. 76-
24 and the applicable maps.
My review of the record indicates that Resolution No. 76-24 was
adopted in full compliance with the procedures required by law,
including notice and a public hearing. The alleged conflict
between the maps and the Resolution has not been asserted until `-
recently.
4 �.
Item 1 in Resolution No. �6-24 is preceded by a reference to s
zoninq maps specifically amended by this Resolution. These t. .
zoning maps have at all times since the adoption of this Resolu- ''
tion clearly indicated that the subject property is zoned RS-160
or RS-20, depending upon the point in time. In addition, � .� � _
numerous maps submitted as a part of the hearing record clearly
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Coumy Commissioners Counly Attorney Personnel and Finance Road and Britlge ��.. �;�,•`,�,;�.
Suite B Suife 1 Suile F . Fleet ManagemaM rr.� `F��:;:.
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506 E.Main Street 530 E Main Street 530 E Main Street 2021 O W.Higfiway 82 �-����:',,;y'
Aspen,CO 81611 Aspeq CO 81611 Aspen,CO 816n Aspen.CO 81611 °'I y�=", ,
(303)925-5232 (3031 920-1 2 2 3 (3031 9 2 5-3 5 6 6 i303)925-7212 .'!` F�"-�,.'"?�i
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Memorandum to Cindy Houben, Planning Office
RE: Roaring Fork Railroad GMP General Submission -
Zoning Issue
August 12, 1987
PAGE 2
delineate the parcel as proposed for RS-160 zoning. . This was the _
recommendation of the Planning and Zoning Commission, referred to E::;'•'•;:.
in the Resolution, and the language of the Resolution indicates
an intention to accept this recommendation. Since the record �y,
also included a map of existing zoning which indicated this �:���
property as AF-1 up to that time, it seems clear that the � _
rezoning was intentional. �.
Resolution No. 76-24 would be internally inoonsistent if rezoning ,�y7
, of the_ propezty ,to__,RS-160 . is_.not considered a part of that ;'
action. References to the P&Z recommendation, to growth option
A, to the capacity of the soils to accommodate septic systems, ;;��
and to. repozts. regarding ultimate density, are only valid and 4� �
relevant if an intent to adopt the RS-1GO zoning was implemented.
�::.+' .
� In addition, Colorado law requires that a proposed amendment be
� resubmitted to the Planning and Zoning Commission before action
� by the Board of County Commissioners. Because the Board of
County Commissioners viewed its decision as being consistent with
; the recommendation of the Planning and Zoning Commission, the
proposal was not resubmitted to it.
�
� Finally, Colorado law provides that after long public acqui-
� � . escence in the substance of an Ordinance, public policy does not
permit an attack upon its validity. Since Resolution No. 76-24, °
Resolution No. 77-33 and the zoning maps based thereon have been
relied upon by the County and the public for a substantial period
of time, it would be inappropriate to recognize their invalidity
; based upon a procedural technicality at this point in time.
This opinion is consistent with the recent determination by the
Board pf County Commissioners that the adjacent M.L. Martin
property is zoned RS-20 and not AF-1. Based upon this determina-
� tion, Mr. Martin requested and was granted rezoning to AF-1 on
, August 10, 1987. It would be inconsistent for the County to
acknowledge that the Mills property is AF-1 at this time. i,
i Consequently, the Roaring Fork Railroad Company's application
should also be considered an application for rezoning to AF-1, as
stated at paqe 91 of the application. y
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TFS:cd
cc: Chuck Carleton, Roarinq Fork Railroad Co. � :
Sunny Vann, Vann Associates } °�
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� � MYLER, STULLER &SCHWARTZ r '
A7TORNEYS AT LAW
DAVID 1.AtYLER ' BOA gF ����:02
SANDRA M.STULLER ��p�����Ap�,8161� �
AIAN E.SCHWARR Pub6C Hear(anahy:b;a�(B
Date:
September 30, 1987 SubjBCi�--�5������� .
Exh.Ap. �j
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Thomas Fenton Smith, Esq. °`';�� i
Pitkin County Attorney '�!%'`;
530 E. Main Street r,'"
Aspen, CO 81611 �c+
RE: Application of Roaring Fork Railroad �`t:�
E�`.'
Dear Tom: ^::
. ��;:�±�!�.
Zssues were raised during the P6Z public hearing concerninq �;',; ;
the propriety of the proposed subdivision of the Mills property ; ��:_
_ for the development of the railroad facilities. Zssues raised
were whether: t
1. The proposed configuration of fee simple, easement and
long term leasehold interests met the definition of a
lot; and
2. Zf so, whether approval of the project as submitted
would result in the creation of a nonconforminq lot (a
result not permitted under the Pitkin County Land Use �,
Code) .
It is the purpose of this letter to address those issues.
�
The Proposal �
The RFRR proposes to subdivide the approximately fifty-seven
(57) acre Mills propert}• in order to create an approximately
seven (7) acre site for the station buildinq and transit plaza.
In order to accommodate the proposed pedestrian bridge, which
will span portions of both the Dlills and Jaffee properties, an
easement and a long-term lease will be obtained froto Mills and t
Jaffee, respectively. The remainder of the parcel, which will ���
contain the RFRR's passenger platforro and portion of the new
railway, is. proposed to be obtained by lease or easement from
� Pitkin County_ An easement or leasehold interest from the County `'
will also be required in order for the RFRR to utilize the �
existing right-of-way from Woody Creek to the Jaffee property.
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, MYLER, STULLER & SCHWARTZ '"''"'
Thomas Bendon Smith, Esq.
September 28, 1987
Page 2
The contract between RFRR and Mills, in addition to the
conveyance of the 7 acres in fee simple, calls for Mi21s to
convey to the RFRR an easement "for the purpose of constructing .`�.'A�:'.` -
and operating a pe@estrian bridge aczo�s the Roaring Fork River." ��:;':;�, ;
The proposed arrangement with Jaffee is a long-term lease for the
same ur ose. No a reements have �'n• •
p p g yet been entered into with �.;._ :
: Pitkin County for the use of the right-of-way. Consequently, r .
RFRR will have a mix of fee, easement and leasehold interests.
� In the case of the Mills parcel, except for bridge foundations,
all construction will be above the surface of the Mills property. k
. !��
fAll four parcels have been submitted for subdivision ap-
proval; and the total acreage for all four is qreatly. in excess
� of the minimum lot. requirements for either RF-1 or RS-20. ��
_ � Consequently, the purpose here is not to determine the need to �;
i comply with the subdivision regulations; nor to establish whether ,
" the minimum Zot requirements for the spplicable zoning category �
f have been satisfied. But rather whether RFRR's proposal is
; "i11eQa1" in anv r�a?_r_a: a.,� ,f .,�r_ if its aot�roval wxll create
� � an ill�al nonconformina �or —
•� Legal proposal .
a .. - •
�`'� Artic1e .20 of the Land Use Code defines "Lot" as follows:
� "A arcel of real property as shown on a separate and
::� distinct number or letter filed for record in the "
',:'� office of the Pitkin County Clerk and Recozder used oz
intended for use as a unit for transfer of ownership or
-_...f for development. (Emphasis added) ,
�J There is no requirement that a lot contain only fee simple
-^;i interests; easements and leasehold interests are defined as real
:;:� property in Colorado. See, McKee v. Howe, 31 P.115. Tn Wellman
:Y� v. Hauq, 630 P.2d 972 (Colo. 1961), the term "lot area" (for the
purpose of determining compliance with the minimum lot area) was
defined, for zoning purposes, to mean "any contiguous qnantity of
iland in the pbssession of, owned by, or recorded as the property :
� of the same person. * * * We have alFeady held that 'lot' as used
� , in the zoning regulation i.s not necessaril�• synonymous with
platted lot but may include contiguous land under common owner-
' ship." 360 P.2d at 974-5. `
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. iviYLER. STULLER & SCHWARTZ �s'-�Y'•�,`��,,".;.
Thomas Fendon Smith, Esq. •
September 28, 1987
Page 3
The Code defines subdivision or subdivided land as: .
A tract or parcel of land which is divided into two (2)
or more lots, tracts, sites, parcels, separate inter- -
ests, interests in common, or other division .... �
-�i:.:i:�:;��.
Tnterest means anv and all interests in the surface of
the land (includinq leasehold interests) but excluding `��, •",•
any and all subsurface interests. (Emphasis added)
The same definition appears in the state statutory definition. �,.'
Again, the deEinitioa is not limited to feehold estaCes. ` '
�`� �
The Pitkin County Code incorporates a great deal of �:�.`.
flexibilit}� in interpretation of what is the appropriate config- �
uration for a lot. Specifically, Sections 5-501_13(a) and (d) �,j�:�
. read: ; ,
� (a) Lots shall be of such size, width, depth, shape ,t �
and orientation as will be appropriate for the
location of the subdivision and for the type of
development and use contemplated and for future
re-subdivision where appropriate.
(d) The circulation pattern, 2ot layout and size of an
industrial or commercial subdivision shall be
appropriate as to its proposed usage.
Consequently, the apQZication as submitted, with different types
� of interests in real property, is not prohibited by the Code.
There are no consumer protection interests that requize fee
ownership; what is proposed is one commercial project, under one � ,
ownership, with no prospect of division or resubdivision in the
future. Nothing in the law or public policy argues against the �;
approach taken by the applicant. , •
� Substandard Lot . �
� It is acknowZedged that 7-2.5 of the Code provides: i
.<
i No lot or parcel of land, nor any interest therein, �`
� shall be transferred, conveyed. sold, subdivided or �:
, acquired in either whole or part so as to Ieave remain- �'
� • inq any lot or parcel below the requirements of a legal
; building site as otherwise described in this Code....
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' MYLER, STULLER & SCHWARTZ
Thomas Fendon Smith, Esq. '
September 28, 1987
Paqe 4
RFRR proposes to acquire from Mills an easement solely for the -
purpose of constructing an aerial bridqe; and obtaining a right _
of way across that bridge. Subsection ib) of the definition of
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subdivision provides: ;f?.':;''•:•
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�bd-- No subdivision of -land . sha-1� be deemed to have
4�,:: .
— -occurr-ed--mcr-ely--hy—r-eason--af-�he establishment of
a public right of way (for access or utility i'
purposes) across such land without regard as to
whether such right-of-way was acquired by dedica- �C: `
tion or establishment by prescription. `�
, �••
The RFRR will not (1) be the fee owner of the parcel crossed by {
6'�'�
the bridge nor (2) will the creation of the aerial gasement �;.:-�,
"parce2" the Mills property so as to create a second lot. Again, •'� �
the unique characteristics of the terrain (river gorge) and needs ' �''
of the applicant televated pedestrian bridge) , dictate this !
solution. The Code permits flexibility in design of a lot to
reflect the needs of the development. No parcelling of the
balance of the �:ills property occurs as a result of the proposed
configuzation; consequently, no outparcel is created in
contravention of 7-2.5 _
- Thank you 'for your consideration.
Very truly yours,
MYLER, STULLER & SCHWARTZ �
B y:��ri�i� !,/i. DO�
Sa ' a M. tuller
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lIf the County would like the acreaqe included within the
easement to be subtracted from the overall minimum lot area so ` �
that there is no "double dipping" when the balance of the Mills � n_
siCe is develo ed, thaC is certainly acceptable. ��
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MEMORANDLTM BOh'':;�)f r:i i O�Aiv1'R'S -
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Pl hi�f �:181'��1 f r i:itr }:-;� ..
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TO: Cindy Aouben, Planning Office c�,;-;;.,: /�" �
__LaL-.�_ �_d
FROM: Tom Smith, County Attorney� �� `'` -�._ _„_� .�' '
E_
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DATE: October 30, 1987
I�:� .
RE: Application of Roaring Fork Railroad ��'�
F,;,
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You have requested my opinion regarding the legality of the ��'� ?
subdivision proposed in the above-referenced application. The
applicants propose to create a single Parcel of land by aggrega- �!
ting 7 acres to be held in fee simple (Parcel A) ; .96 acres in
the form of an easement (Parcel D); .77 acres to be held by long-
term lease (Parcel C); and the remainder by lease or easement
(Parcel H).
'n In my view there are two problems with the proposal to create
this 14.25-acre Parcel as proposed in the application, as
discussed below.
A. Parcel C
1. With respect to the Jaffee Parcel (proposed Parcel Cj,
the lease of a .75-acre Parcel on a lonq-term basis from •
the W/J Ranch constitutes a subdivision of the W/J Ranch
property (Section 20-1, "SUbdivision or Subdivided Land,"
Section (5)) . Since the W/J Ranch property is zoned RS-
20 (20 acre minimum lot size) , this subdivision is not
permitted by the Code except perhaps as a lot line
adjustment pursuant to Section 4-2.2(a) (2) . In addition,
it appears that this subdivision may create a non-
conforminq Parcel immediately adjacent to, and east of, `�
Parcel C.
2. The criteria of Section 4.2.2(a) (2) would not be met if S
the purpose and effect of the lot line adjustment is the � �,
creation of a new Parcel for development purposes,
contrary to the limitation of Section 4-2.2(a) (2)(B).
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County Commissioners County Atlorney Personnel and Finance Road and Bridge ��� �. ��
Suite 8 Suite 1 Suite F Fleet Management s ,
506 E.Main Streel 530 E.Matn Street 530 E Main Slreel 20210 W.Highway 82 � rt �-
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Aspen,CO 91611 Aspen,CO 8161/ AsDen.CO 616/1 Aspen,CO B1611 �. �-�..:���-.
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Memorandum to Cindy Houben, Planning Office
RE: Application of Roarinq Fork Railroad
October 30, 1987 ---.. . - . __.... __.
._.. _
PAGE 2 . - -
3. However, based on the conclusions made below regarding
the Mills property (proposed Parcel D), the lot line -
adjustment provisions are inapplicable in the absence of
existing adjacent Parcels under separate ownership. t.`r:;"��.�
�::.. ._
B. PARCEL D y;�.: '
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1. With respect to the easement (proposed Parcel D), it is r. -
my view that the acquisition by the Roaring Fork Railroad i.
of an easement across the Mills property for the purpose
of a pedestrian bridge does not have the effect of �.�
merging the .96-acre easement with the 7-acre Parcel g..':
, adjacent thereto_for_ ownership_or._development._purpos.es, �;'��
� � and the easement cannot be used to help satisfy either a
� 10-ac.�e,or 20-acre minimum lot_area requirement.
�
- _. .: Based upon §3-8.5(a) (2j , neither Piills nor the Roaring �( r
Fork Railroad may_ include. the easement for purposes of !
calculatina lot area. The validity of this provision of �
the Code is supported by the case law. Loveladies
, Pronertv Owners Association, Inc. v. Barne4at City
Service Co., 159 A.2d 417 (N.J. App. 1960); Sommers v.
, Mavor and Citv Council of Baltimore, 135 A.2d 625 (Md.
App. 1957) ; Clarks Lane Garden Apartments, Inc. v.
� Schloss, 79 A.2d 538 (Md. App. 1951). Aowever, the issue
posed by this application is somewhat different, i.e., is
, an easement part of an adjacent "lot" where the underly-
ing fee is in separate ownership.
For the reasons stated below my answer is in the nega- .
' tive.
i
� 2. In property law Parcel A is denominated as the "dominant
� estate," the Mills property in its entirety is the
� "servient estate," and the easement is "appurtenant to"
� the dominant estate. The easement is not described as
� part of the dominant estate since it only involves a use
that benefits the estate and not part �of it in terms of ;`--
� ownership.
� 3. An easement is a privilege which the owner of one Parcel �
of land, i.e., the owner of the dominant estate, may have ��.
in the lands of another. It is distinct from ownership
of the land to which it is attached, which ownership
remains in the owner of the servient estate. The owner �',.�
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Memorandum to Cindy Houben, Planning Office
RE: Application of Roaring Fork Railroad
October 30, 1987
PAGE 3
of the underlying fee (Mills) may use his property in any
manner and for any purpose consistent with use and �•{'-:
enjoyment of the easement. i"�:�:'-`.`, .
�p':::
4. Hy qranting the easement no subdivision of the Mills f.:. �
property occurs. He continues to own a single Parcel of
contiguous lands notwithstanding the easement. He is
; entitled to develop such lands as a single Parcel or
� through subdivision subject to compliance with the Land �
Use Code and subject to the easement. �
5. The same lands cannot be counted twice for development k•���
purposes. See, Apoeal of John J. Bateman Associates, 396 � 1
A.2d 72 (Pa. Cmwlth. 1979). The Roaring Fork Railroad °� j '
has neither ownership nor full control of the easement �'..`"'.
property, but only a right to use the property as �
� specified in the grant of easement.
L
� 6. The easement property does not merge into coauaon owner-
ship with the 7-acre Parcel because there is no common
� ownership of Parcels A and D under this development •
proposal. This interpretation is consistent with
�°.. subsection (b) of the definition of subdivision, which
� states that no subdivisioa of land occurs merely by
� establishment of a right-of-way.
� 7. Identifying the easement as part of a single development
Parcel is inconsistent with the Code definition of "lot"
? because the lands involved (Parcels A and D) are not "a
parcel of real property as shown with a separate and
distinct number or letter filed for record...�� and they
are not "a unit for transfer of ownership or .for develop-
iment.°
� 8. While an easement is clearly an interest in land, the
� easement does not grant to the Roaring Fork Railroad full
possession or ownership of the lands, and the Roaring �
Fork Railroad may not record the easement to establish �
' anything other than a privilege to limited use of the
; servient estate. Therefore, the easement cannot be : s
included within the definition of "lot area" stated by ;�
the Colorado Supreme Court in Wellman v. Haua, 360 P.2d
9'72 (Colo. 1961), where lot area is defined as "any
contiguous quantity of land in the possession of, owned '�,� - �
by, or recorded as the property of the same person." �<' `•.�
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Memorandum to Cindy Fiouben, Planning Office
RE: Application of Roaring Fork Railroad
October 30, 1987
PAGE 4 .
9. Sound public policy dictates that the minimum lot area F;:<': .-.
requirements of the Code be enforced on a uniform basis. � .
In essence, the Roaring Fork Railroad is attempting to -
develop a 7-acre Parcel in a 2o-acre zone (or a lo-acre �;. �
zane i£ the property is rezoned AF-1 by the Board of
County Commissioners). _ If the 7-acre Parcel here was � �
proposed for residential development would the County
acknowledge that the acquisition of a 3-acre easement
adjacent thereto but under separate ownership could be
accomplished to meet the minimum lot area requirement? I
think not.. It should be apparent that approval of this
proposal and its _application__elsewhere could have �1
� disastrous consequences by seriously undercutting. the �:
i minimum. lot size zequirement in all zone districts. �
i:, '
° � 10. Since the easement is not properly considered a part of �
the development Parcel, but an interest in land appur- �
tenant thereto, . the Jaffee and County lands (proposed �
, Parcels B and Cj cannot be considered part of a single
development parcel because noncontiguous lands cannot be •
counted in the calculation of lot area. Wellman v. Haua, �
;�,; su ra.
�
�� It is my opinion based upon the foreqoing that the application is
deficient in failing to meet Yhe minimum lot size requirements in
; the zone district, whether the property is zoned AF-1 or RS-20.
�
; TFS:cd •
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cc: Sandra M. Stuller, Esq.
Sunny Vann ,
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