HomeMy WebLinkAboutbocc.min.spec.03121997 t
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PITHIN COUNTY COMMISSIONERS �;'�,u�:"4,i�;'�
MEETING AGENDA ��'":;�"�;�'.•..
WEDNESDAY.MARCH 12,1997 I �' .
� � NOON SPECIAL MEETING-Plaza One Conference Room '
Hull Appeal of 104I Administrative Decision,Ellen Sassano(cont.from 2/26)(PN 1/ZS/97) °y �',�
330 pm REGULAR MEETING-Plaza One Conference Room
ADDITIONS/DELET[ONS TO AGENDA �''�;��,.
�ONSENT AGENDA ' : . �
Minutes of February 19 Special Meeting and February 26 Regular Meeting i��`i �`
Motor Grader and Roller Compactor Equipment ContracLs,Stan Hall
Human Services Contracts and Leases,Nan Sundeen "p?:'•.`.?-. �:�
CC[Proxy,Kate Jangula =:
ADMiNISTRATNE ACTIONS `�`r� � .
l. 1 st Readin�and Set for Public Hearing on Maroh 26,Ordinance Approving Road Plan,Road
Management&Maintenance Plan,Brian Pettet ^
2. 1 st Reading& Set for Public Hearing on Mar 26,Resolution Recognizing Frying Pan Caucus, . •
i John Ely(PN 3/8/97)
3. 1 st Reading&Set for Public Hearing on Mar 26,the 1996 Supplemental Budget Resolution,Lynn
Dunlop •
. . I 4. 1 st Reading and Set for Public Hearing on March 26,Ordinance to Approve Acquisition of the
Conservation&Trails Easement for Aspen Branch of Rio Grand Right-of-Way,Tom
Newland(PN 3/8/97) ��+:J.
5. I st Reading and Set for Public Hearing on March 26,IGA with Garfield County,Tom Newland(PN '•r�'7
3/15/97) •;��I�
6. Airport Hearin�Officer Appointment
7. I st Reading and Set for Public Hearing on April 9,Emergency Resolutian Prohibiting the Transfer of , ':�
- Development Rights from Properties in tlie Frying Pan River Drainage,John Ely(PN 3/22) �•
ADMINISTRATIVE PUBLiC HEARINGS
8. Continued 1 st Reading,Resolution Approving GOCO Legacy Grant Agreement,Tom Newland(PN
; 3/8/9�
� 9. Contined 2nd Reading, IGA with CDoT Regarding a Grant for Purchase of the Denver&Rio
Grande Railroad Right-of-Way,Tom Newland (to be continued to March 26)(PN 2/22/97)
10. Continued 2nd Reading,Roaring Fork Railroad Holding Authority Intergovernmental Agreement
Amendment,Tom Newland(to be continued to March 26)(PN 2/22/97)
11. 2nd Reading„lnclusion of West Buttermilk P£ster Tracts 1-5 in West Buttermilk General
[mprovement District,John Ely(PN 3/1/97)
� 12. 2nd Reading,Ordinance Authorizing Temporary Easement and Permanent Right-of Way for ConsWction p
I ofCDOT Aspen Village East Four Lane Widening Project,Bud Eylaz
13. Continued 2nd Reading,Half Cent Sales and Use Tax Budget Resolution,Tom Oken
LAND USE AGENDA
CONSENT ACTIONS '
1. Forwazding of Planning&Zoning Commission Scoring of 1996 Non-metro Residential GMQS ��
Requests to BOCC,Suzanne Wolff ?
�9NSENT PUBLIC HEARINGS '4
2. Burke 1041 Hazard Review&1996 GMQS Allotment,Ellen Sassano(PN 2/8/97)
3. Heatherbed Lodge Metro Residential GMQS,Subdivision Conceptual Submission&1041 Hazard Review,
2nd Reading,Ellen Sassano(PN 10/5/96)
4. Wagner Caretaker Dwelling Unit,Francis Krizmanich(PN 2/8/97) '
5. HelledMoss 1041 Hazard Review&Lot Line Adjustrnent,Rick Magill(cont.from 2l26)(to be �: �
cont.to 4/9/97)(PN 2/8/97)
6. Hall 1041 Hazard Review,Lot Line Adjustment,Ridgeline Review&1996 GMQS Allotment,Suzanne ' �.'-
Wolff(to be cont.to 4/9/97)(PN 2/8/97) ,;{� I
LAND USE PUBLIC HEARINGS
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IVAN AULL APPEAL OF ) �< �� "
� ADMINISTRATIVE DECISION ) RECORDER'S TRANSCRIPT �,,rK;�`
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A hearing on this matter commenced at 2:00 p.m.on Wednesday,March 12, 7 .
1997,in the Plaza 1 meeting room,530 East Main,Aspen,Colorado
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BEFORE THE BOARD OF COUNTY COMMISSIONERS: �;.-•.: :
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DOROTHEA FARRIS �€. ;
MICHAEL IRELAND :;
i SHELLIE HARPER ��
I LESLIE LAMONT
BILL TUITE ;; ��
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ALSO PRESENT:
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� ELLEN SASSANO,COUNTY PLANNER
JOHN ELY,COUNTY ATTORNEY
� IVAN HULL
CRAIG CARVER,ATTORNEY FOR THE HULLS
� JOE WELLS,CONSULTANT FOR THE IiULLS
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• TUITE This is a hearing,appeal hearing,Ivan Hull,before the Board of County i "-
Commissioners,and I see our attorney has a statement to make. : -i,
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ELY I was just going to,uh,recap for the Board where we aze—where we are. `':;,
This is a continued hearing from two weeks ago at the last regular BOCC meeting. Um, ; .•,
the one comment I would make is that this is a—an appeal,as the Boazd already knows, � .
of an administrative decision,that administrative decision coming from the Community }..,' ..�:; �.
Development Office as the successor to the Planning Office,the Planning Office being �:.�'.� �-
r uired to make an administrative decision ursuant to a certain Court order in the i` '
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matter of the Estate of George Maurin. The,uh, decision of the Planning Office,the • � .
Community Development Office is to iden6fy and approve a building envelope which
would contain a home site as provided in the Court order. The pazameters of that �,�:
� approval and um—and the home site issue itself,uh,were appealed direcfly to the Board f�
pursuant to Section 3-30U of the Land Use Code,which is an appeal of an administrative �
'' decision. Um,the one comment I wanted to make to the Board,because there were some ;�
� questions of ine at the conclusion of the last,um,meeting where this item was heard,uh ..
� regazding the appraisal that was conducted by Chase and Company on behalf of Mr.Hull,
� the property owner in this case. Um,the uh—the uh--the uh—the appeal procedure Kr
thaYs being conducted now is pursuant to 3-300 of the Land Use Code,as I stated. It's i'�;
not a takings hearing as provided in the Land Use Code, Section 5-220. Um, that ;���
procedure is available to Mr. Hull or to any property owner if they feel aggrieved by a �
; Board decision or an administrative decision that constitutes a diminution in value or a
i regulatory taking of their property. Um,I mentioned that up front just because of the fact �
i that the appraisa(that was done by Chase and Company for Mr. Hull was given to the
� Boazd,um,at the last meeting. Um,I have contacted the,uh,Aspen Appraisal Group,
! who performs various appraisal work for the BOCC from time to time, and I was -
informed that they could not,uh,generate a response or—or do their own appraisal work
� on the property for at least,at least six weeks,to be on the conservative side. The Board
� would have the opportunity,I think,at this time to continue the hearing for that period to
; get that appraisal work. However,because of the fact that this is not a takings hearing but
i a,uh,straight administrative appeal,um,we might be able to—I would think the Boazd
j would be on sound footing to go forwazd and conclude the,or try to conclude this matter
� today, um, so it could begin its deliberation. The, um, leYs see, thaYs all I need to
mention about the appraisal.
� TUITE Thank you. Okay. Um,we had heazd the testimony of,uh,Ivan and his
• ! wife. I believe,couoselor,you had Joe Wells also?
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� CARVER We did,Mr.Chairman. Pd also request,with your pernrission,then,we '
� can do this one of two ways, but, um, if you'll remember, at the close of, uh, the
Wednesday evening hearing,we were,uh—
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TUITE It was still Wednesday,correct,right. `,
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� MARCH 12,1997
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. CARVER --we were accelerating things and,uh,in reviewing my notes at the end of �'= ,
that,I realized that we had put Ivan and Anna Belle on and off rather quickly without ; .�-
having answered some of the questions that uh — which had been raised by the �-.,?�
Commissioners that we've indicated would be answered by their testimony and,uh,with -
, your permission,I would ask that you could hear Mr.Hull for purposes of responding to 1r.' �-
those questions which were,uh,which were raised. 4,�,, 'y
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TUITE Please,yeah,and Pd just remind everyone who had been sworn in,to tell 'F'"`'"
, the ttuth,the whole truth and nothing but the truth so help their God. t��,+"-.•:.
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� CARVER And specifically the—the issues that I think Ivan is going to be addressing ���`^ '
� here,especially when I remind him of them is--is,uh,questions have been raised about
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how much money he has invested in the property,uh,the location of I believe it's the C ,.'i
� Hay Park Trail?
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� I ELY Right.
� CARVER Um,some questions have been raised about the circumstances surrounding w�;
' the relation of his purchase of this property and he's also submitted a couple of additional ��
letters to the Commissioners,uh,uh regarding issues that he's wiiling to work with the
' Staff on so— e
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" ' TUITE Okay.
CARVER Instruct him to stand up or can he sit—stay seated?
,�Y.�_
i TUITE Please stay stated.
• CARVER Oh great.
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T[JITE If you feel comfortable there or come up to the—
JONES Bill,can we have him come up here to the table?
— -- TUITE Okay.
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JONES These mikes aren't—
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HLJLL Okay,uh,I guess the first issue was the I think Mr.Ireland asked me about •
- what I paid for the property and I paid$152,000.00. What I've spent on the property in
the last 17 yeazs is in excess of half a million dollars,$SOO,OOO.dO. Um-- ,
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TIJITE This is in litigation and improvements?
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� 2 MARCH 12,1997
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• HULL Exactly,yeah,about$100,000.00 in litigation,which was for the vacation
of the road, the East Sopris Creek Road that was vacated. 1'here were two sets of � �`•
litigation there. And then improvements on the roads and this current situation thaYs '"'3
: costing money,of course,and so it hasn't cost me$150,000.00. IPs in excess of half a ��'..::'
mil(ion. i� , .'.
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TUITE Thank God. Look to your attomey. `''`.�
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HULL Right,exactly. We'll take the attomey bill out,so about$400,000.00 over �;._.T,.R�
the years,17 yeazs. iJh,the second issue I think was the trail,Craig?
i CARVER Yes. �
HULL Could I just— - '
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. � TUITE Mick—Mick,I believe,had questions. Is the trail in your property7 ' �
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HULL No. No. And I've spoken to A1 Grimshaw,who most everybody knows f��.
and— j,
TUITE For the record,Al is with the uh-- �
IHIJLL Forest Service.
TUITE Forest Service.
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i CARVER Forest Service.
� T'CTITE Right,not BLM.
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HULL There's a green map here. You see this little line. This is where you pazk
down here,wliich the Murdocks,who live up here,Rupert,uh not the Murdocks,sorry,
� Rupert,plow through to here and keep this area even cleaz in winter now. And,uh,tlus E
! trail has always been here and I spoke to Al about it. He knows it quite well. What �
; happen—and then you see plowing through here? This hasn't been used in,he told me,
30 years. I—I don't lmow that myself personally. I know it hasn't been used in 20 yeazs
since I've been up there. The trail doesn't sit here. It never crosses this fence line,which
is the Marcy property. It sits actually right up in here. It dces not cross my property,as
this shows.IYs actually 800 feet is the nearest it comes. When it crosses over here,it �
does, this is the Maurin property, it travels on the road for 110 feet and they've just
mazked it with trail signs in the fall last yeaz. It then comes back into here and it picks up
on the access road,which is this road here,which leads into the lower part of my property
for about 200 yards. This is about 1,500 feet away from my bottom envelope so this�ail
does not pass downward. It certainly comes close in about 700 feet. Also, they're �-' •
remapping this with the permission of the Maurins. The trail actually runs through here, �
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3 MARCH 12,1997 �
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much more north than this trail. This does not exist. The trail actually runs through here, !~
just if that helps anybody. �. '
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LAMONT Yeah,there are signs up there that on the Maurin property,I assume iYs
the Maurin property— � .. ',
HULL It is.
LAMONT —that you aze—you are crossing private property,please stay on the trail '`".==
and then ou dum out on the road and there's sto si ��"� '
i y p p gns on the road. �r.
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� HULL Yeah,the Forest Service actually put those big metal things in the fall and �.'`:�
they're doing more this springtime.
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i LAMONf So the--the road that the trail,the portion of the mad that the trail uses is- �
, �� -is your access drive?
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' HULL Yeah,but not on my properry. �
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LAMONT Right.
!� HULL IY s part of the access.
� LAMONT But it is your access road.
i HULL And to two occasions. One's for 110 feet,which is 600—700 feet away �
; from pmpercy,and then again about 200 yards,which is about 1,200 feet away from my
jproperiy. And we're quite happy with that,of course. .
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j T'UITE Con6nue,please.
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� HLTLL Yeah. I'm sorry. Uh,what was the other point.
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� CARVER Origins of the purchase.
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� HULL Oh right.
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� LAMONT I just have one more question--
� , HiJLL Please.Yeah.
� LAMONT --with regazd to the trail and the mad. Your access drive is an easement
i you have that—that came with the purchase of the property&om the Maurins7 '
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4 MARCH 12,1997
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HULL ExacUy. IYs a 40-foot easement. IPs an old cow trail and there's a lot of =�-�'�'��"
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' old roads up there. There's a logging camp up in there called the Dougherty Logging "
Camp back in the `30s and `40s and it was all homesteaded. There were cabins all �`�
throughout that valley. The ruins still exist of ap of them. And uh the—iYs using an old �'3
road,mostly using an old road. ��`.
LAMONT Um hum.
HULL Uh, there's—I've seen a—I've got a—I saw a letter from Bob Child,a (r'_��-��•
� letter from Molly and uh her husband and uh I've seen this go on for about 10 years now. ;�_,�.�-:
� There's all this hearsay that I said I was never going to build up there or live in summer
i or—I've never met Bob Child till about five years after I bought the property so I don't ,._
know how Bob can say that I said to him uh that I was not going to build a mansion up
there,not that I'm intending to do that. But I never had any conversations with him. In
fact,I've met Bob on about three occasions,usually at Commissioners'meetings,and no
discussion ever was had with him prior to the purchase or within five yeazs after. And j�
• � iYs never been my intention to live a rustic Lifestyle. Uh,iYs—even though when I spend � �
; time up on the proper[y,it is rustic at the moment`cause there is no home up there. Uh,
� and I see comparisons made with other properties. The—the letter that came in from the ��
Molly and Steve Child talk about a house on Watson Divide. Nobody can see my i�
. property. This is truly hidden from the public. You can't see it from Capitol Creek i
Road. You can't see the ridge&om where the house site is. IYs set back 300 feet from
. ! the edge of the ridge. Uh,and I don't see how they compaze it to these other properties
i that they're compazing to because there is no comparison in that respect. And there was
one other point—
CARVER Ivan,you also want to go through the fact that not only you did not speak
with Bob,but where you were on that date—
I HULL Oh, right, well yeah, sure. I — I was in Australia when I bought the
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j property. I hadn't been in Aspen for about five months prior. Uh,I was familiar with the
� general azea but I hadn't seen the actual property or walked it. I wasn't aware that it was
for sale at the time that I left Aspen. And uh so it is very difficult for me to have made
� any representations to anybody,which I did not,and I sent my money to the bank. I
� spoke to the Maurins. I spoke to the Maurins' attorney, George Petre, on several !
� occasions. No representations were made to him about not running urilities in there, �
whether they're overground or underground. Of course, you'd want them to be ��
( underground because of the environment. iJh,so it was very difficult for me to do that.
Another, and I don't want to speak for another land owner, but the other person that '
� bought another piece of property up there happened to be in,I think,New York or Paris
� or Lond—or in L.A.at the time.
' TUI1'E Or Moab.
HULL Yeah,somewhere. �"+
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5 MARCH 12,1997
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TUITE ThaYs the way the bumper sticker is.
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HULL Yeah,that's right. And so I won't speak for her but I—on convecsations • ��-'•'�
I've had,there was never any representations from her either. Possibly one of the other "'i:;
land owners did. They did not represent me in the purchase of this. c .. '.�
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' TUITE Any ques6ons of Ivan7 ��:'?�,,;
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i C A R V E R A n d t h en y our l e tte r s,Ivan. y:;:��%: .
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: HLJLL Oh yeah. 1 do have some uh—t menUoned last time that I applied to get or � .:;,: .
� borrow some money and they approved the loan,a semi-commitment. Then they had a �; .;
i closer look at the appraisai and suddeniy realized that is it worth 1.1 million or
. � $300,OQ0.00 and they—a gentleman called Michael Veis or Veis had sent me this letter.
' . . �i I've got some copy—a copy for each of you and what they've basically done now is told ��
� me that they can't lend me on my property until this is resolved. And,uh,which puts a -
huge hardship on me, So—I'm not[inaudible]more.You want one for the record? a
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SASSANO I'd like one. I would like one for the file. �`:
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. !� ELY I'll grab one of these for the record.
�j HULL Okay. [Multiple voices talking in the background,unintelligible.J
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,; CARVER Have they almady been given out?
•;
_ 1� WELLS They were faxed to Elien but then resubmitted to the records.
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�� C?.1tVER Oh,okay.So I'11 put them. You guys need to give them to Ellen. �
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�! SASSANO I have a copy. '
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)� H[JLL I can pass these around. �
� i TUITE Yeah. �
� HLJLL Do I give them to you? i
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T'UITE Yeah,I would like to get them to the Clerk so. �
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ELY How many letters are you talking about?
HULL I put one in from the conference,uh Comerstone Financial,and then— � "
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( MARCH 12,1997 -
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TUIT'E We'11 pass that around this way. •
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SASSANO Do we need a— + �'�
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WELLS Those two letters are clarifications regarding two septics. One is,first of , .'
all, there was a discussion about what counts as residenrial square footage and what '```,
dcesn't count as residential square footage. Uh,we were relying on an interpretation that
basically exempts only agricultural square footage from any square footage limita$on. �q.::�=:�, �:-
Uh,one of those letters simply confirms that we're perfect[y happy to,uh,assuming that ,;,r '
we resolve this—this matter,to abide by that interpretaUon that was given to us by the
zon in g o f ficial. Ellen had su g gested last week that there mi g ht—for lar ger tracts,there ��'
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� might be other exemptions in the lay of habital space. We're not asking for any of that r; ;
j so,so we wanted to clarify our position on that subject. The other letter is a commitment i�`
on ivan's part to prohibit construction,exterior construction from May 1 to July 1,which �` "'
�� gives elk a two-week period before the calving season begins on May 15�'. Um,Ivan is f�'
willing to prohibit outdoor construction during that period. He is requesting that if the
� buitdings, if a building is totally enclosed,ihat he would be able to build indoors,uh, �
' during that period, if need be. Uh, but he's certainly willing to prohibit all exterior ,�kf
construction during that period and all construction within the--the accessory envelope `�`
would also be prohibited during that period. `�
' TUITE So similar to what we have in Wildcat Ranch. So all elk have the same ��
i birthday,is that basicaliy it?
' WELLS Close,apparently so. -
NITE Or their signs are the same.
- I
( HARPER Are they all Aries?
�
j WELLS They're all Geminis.
4 FARRIS No wonder we're doubling ranches.
_ _ ... � i
; TUITE Okay. Anything else? John. �`
,j I:
i ELY Ivan,is this a copy of the deed that you acquired your property with&om
� the Estate? '`
. , •
HULL I can't say sitting right here but—
I
, CARVER I can tell you in a minute,John. I can beaz witness,John.
,.
i `-
7 MARCH 12,1997
�
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, ELY Okay. And there--I'll telt you the reason Pm asking is the doc fee on the F �'?•
�_a,2;.��,
deed indicates a purchase price of$132,500.00 I believe. That's incorrect Ivan said he : �°
purchased it for$I50,000.00. �,T;.��,�"
. , '"�
HULL Definitely$150,205.00. ��:.�;.�,
IRELAND So they owe another two dollars in document fees. "�� '.• "
i=
HiJLL Can I pay that now? �._
:�.>:
[Mulfiple voices talking all at once,unintelligible.] _'° z�'`
, k;.:;�..;
' HULL Rubber stamp this thing. �:;.''=: •
1 1�.:,-..�
� �'. ..
! WELLS While Craig is looking that over,I want to submit portions of record from � <;
; four prior County actions. Uh-- � ,
�
k
� CARVER Each of them or just going over the section and redo all that stuff? � �
WELLS Yeah,I can-I can do- f�
. �
TUITE Oh,before we begin that,I have a statement to make. Um,unbeknownst ��
- ; to me, there cou(d be to you, the potential conflict of interest. My wife, who is an �
attorney, worked for Debbie Quinn's law firm while an issue oF the road was being �
brought up with Ivan and she did,in fact,work on this. I didn't know this. She informed
me when I got hack after the last meeting and uh I talked to John Ely about is this a
conflict or not and he feit it wasn't. BuY I wanted to disclose that there was a nature and
my wife does brow beat me,no,I'm kidding. But she did bring up the fact that she was,
- � at 6mes,actively involved in this. I was totally unaware of this. This was quite a few
� years ago also. And if John,you're stiil comfortable,I would look to the applicant do
� they have any problem with that or anyone in this room,I would gladiy excuse myself
and probably have some fun for three hours before the regulaz meeting begins.
' CARVER We don't think you should get off that easily with us. We have-we have
- no- �'
�i
TUITE You'll pay for that. !=
�
CARVER We have no belief that that conflicts,that constitutes a conflict or even the '�
• � appeazance of a conflict. .
TUITE Okay. And we did not discuss this,by the way,my wife and I.
CARVER Besides,if she can remember that far back,she's doing a lot better than
most of us. (
+ ..
' _-
8 MARCH 12,1997 �
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T[JITE She scares me at times. This is a woman,don't forget now. They have .,
long memories on certain things. �,�
CARVER As a lawyer,you see you have this hazd drive,reformatting on your old ' •
cases. You don't forget them. �
TUITE So I can say this. We're not on camera now. I'm getting away free unless -
someone—
IRELAND And remember any of your currenf cases. '`
`:.-.
CARVER ThaYs right. ��'
_ . ' + LAMONT Where's the other letter?
•`
' ! FARRIS She has it right here.
LAMONT No,the other one.
. i:
• � TUITE _ All right. Now that I have that.
E
:
+ 1 ELY Which? The--Ivan's letter or Steve--the Child letter7 '
�
� LAMONT [LJnintelligible]. '-
! �
j 'T[T1TE Joe?
''- � WELLS Uh,Joe Wells. Uh,as I mentioned,I want to submit—I don't want to sa
1 � Y
� iYs a complete record of these four prior actions of the County,but uh it is a significant
� portion,if iYs not the complete recard,of the County's prior actions in the Maurin matter
1 I which is uh this 360-acre pazcel here,the Huf&nan matter which is the 120. Uh,this i
i � parcel was—the Maurin Estate was subject to a recent 1041 review. 7'he Huffmaa parcel
-- � ' was subject to a recent lot split review. iJh,the Little parcel is the tlurd record, urrt, i
� having to do with a 1041 on this pazcel and the fourth is the Morgan,uh,matter over in �
. � West Sopris Creek,uh,just so that the record will have these documents. i
4 ' �
� i
, TUITE Uh,now these are the record of the public hearings that were held by the �
' � County on all these7 '
k
WELLS Record of the first and second readings and the, uh, the minutes, the �.
resolutions of approval, uh, portions of the packet, uh, pazticulazly letters from the
Division of Wildlife and that soR of thing.
�'..
9 MARCH 12,1997 �'
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ELY Can I ask you a question,and I'm sure the answer is yes,but I want to
' make sure that the portian of the Morgan minutes includ�,or the transcript, included �;�
that patt that we were referring to at the last meeting7 -
'.:,'
WELLS Yes.
ELY Do you recail those two sections?
WELLS 'Yes,the,you had some questions about Tom Cazdamon's letter—
ELY And Kevin Wright '
� VJELLS -- and Kevin Wright's letter. It includes all of Kevin WrighYs
iconespondence. �
�
' . .
TUITE Okay. Thank you,Joe.
. . ' i �
.�' WELLS Uh, the, uh, there were some other issues other than the,obviously the s
� square footage issue is the most significant issue to Ivan and Anna Belle,but there were �
some other issues that we appealed. Most of those were resolved by clarifications offered
by the Planning Office. Uh,however,there were a few issues tha[we probably should �
comment on on the record. The first of those is t6e matter of what ihis procedure is.
�: Staff specifically refers to this as an administrative 1041 review. Uh,we're not really �
comfortable,uh,calling this a 1041 review. We feel that this is an appeal of an action k.
'j based on a stipulation in a court case. Uh,one of the things that makes us uncomfortable
� on that issue is there really is no procedure under the Code for Staff to review a buiiding
? envelope that is located in a mapped wildlife habitat,so uh,for--for us to refer to this as
i
an administrative 1041 review is something that really is not provided for under the Land
� Use Gode. So we objected to that language simply because we didn't think it was really
� consistent either the stipulation or the Code. Uh,hopefully,thaPs,as John refeaed to,
more—more,uh,he said something to the effect that it's more superficial than substance,
� so I'm hopeful that we'11 get matters resolved and we won't have to worry too much
1 about that issue.
4
Uh,the next matter that we were appealing was with regard ta wildfire hazard mitigation
uh measures. We basically committed to,even though this is a low wildfire hazazd zone, �
we committed to pretty much all the mitigaiion measures with the sole exception of the
structural mitigation measwes,which has a significant effect on the cost of building. Uh, •
we asked that those mitigation measures not be applied to the conshvction. Basically,
there--there are one-hour fire rating issues associated with areas azound the exterior of
the building. Uh,we thought,because we were a low wildfire hazard azea that,uh,those
would not necessazily have to be applied.
`r
The next issue I think simply a matter of clazification. LJh,there was some question in � ��~'=
our mind aboui wheiher Staff was asking for tumarounds every 750 feet along the �
;:s
10 MARCH i2.i997 a '
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driveway. Uh,we're more than happy to provide tumouts. In other words,we would be �:`„';wa1��,�
more than happy to widen the driveway from a 12-foot platform to a 16-foot platform,uh, �'`° .
every so oRen, hut the notion of providing a tumazovnd every 750 feet that fire �; .�
equipment could use,uh,those would be a radius of say 90 or 95 feet,uh,so there would , �. �.;
be a lot of destruction associated with that sort of thing and I'm not sure that was what ;•��-
Staff was asking for but we're--we're happy to commit to provide turnouts so that two ' -
lanes of traffic can flow freely, uh, but we would hope that you wouldn't require
turnazounds.
TUITE Joe,clarification. Um,this access road that we're looking at, is thai the �I� �'�� .
�-
:::,. ;
road that will be used by Adelson and Johnson? -?'
� WELLS Yes,it would serve those three lots. �
�
TUITE Three units. Okay. ��.
�
' WELLS And I ttunk those were the outstanding issues— �
TUITE Okay. ;��
WELLS --after the other clarifications that are in your packet by Staff.
• , T[JIT'E Joe,is this your presentation?
WELLS Well,I--I do want to comment on one more issue and that's the matter of
—of what your Code says about,uh,relevant standards to various sorts of things. Uh,I—
I went through the Code and did my own review. 5ittce this was really a maiter of—of -
trying to limit square footage of a residential unit, I went through the Code to try to
_ � document what—what your standazds have been with various matters. Uh,you know,in
order to deal with density for steep slopes, uh, development of allowable density in
� GMQS scoring,the road access standards,the traffic generation standards for residential
� units, the development ceilings that are -- that aze provided in the Code for ultimate
build-out,and the annual development allotments. The standard in each of those cases is
: based on the number of residential units that are proposed. It doesn't have anything to do
with the square footage, uh, thaYs being proposed. For minimum allowed area for +y
� I
� principal use for multi-family housing and for the pazking requirements, you use a �
� bedroom standard. Uh,for the affordable housing exacdons,uh,and for park dedication ,�
� exactions, which are effectively, uh, contributions that you require in exchange for
' getting approvals, you use standazd thaYs based on the number of residents but it's F
' calculated on the basis of bedrooms; it's not calculated on the basis of square footage. •
. lJh,you use the acreage of the site to determine the setbacks. The only standazd I could
find,uh,which is based on residential square footage, is floor area ratio only in those
locations where the zone district has a floor azea rario standard. In other words,the—the
square footage allowed is 15,000 square feet in all zone districts except in those zone
districts where you can have a FAR and this zone district doesn't happen to be one of .,
Y I -_
'.
11 MARCH 12,1997
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those. 1'he point I was trying to make in my review of the Code was to simply say that in ��'�����
, matters of judging impacts and exacting things from applicants,you typically do that on �
the basis of the number of the—of the units and,uh,perhaps the number of bedrooms in �._.�'�,�
some case and not really on the basis of square footage,so I prepared this list and I'll
submit it to Jeanette for the record. So thaYs all I have to say pght now. ".•�'•.
TUI'I'E Questions of Jce? Shellie?
HARPER Joe,with you this—with your particular,can you summarize whatever it is ;�'`�`� �
that you wanted us,that wauld be imQortant to this hearing out of those—I'll go read �;�-.'
them,but they're very quick if there's some particulaz points you would like to be made,
i I'd like to hear them now. -
� WELLS Well,there,was—there was an implication at the last meeting that um,for
; instance, traf�ic generation from a lazger house is presumed to be greater. However, V
under your Code,as I understand it,under the road standards,you use the same number �'`
jof trips for a 700 squaze foot cazetaker unit as you do for a 15,Q0�squaze foot house. So y.
the on! oint I'm in to make is that there is—there aze no established standazds that ( ��'
Y P �Y S �,..-
aze particularly square footage related. There are either based—they're typically based •��r
on nucnbers of residential units or numbers of bedrooms,sa ,�
F
HARPER And the testimony that you're referring to in there of Tom Cazdamone and
I forgot who else—
. �
FARRIS Kevin Wright.
HARPER Kevin Wright What specifically was that addressing?
�
' WELLS Well, that was the testimony that Rick Thompson commented on at the
. last meeting in which,uh,tUere was a representation in the packet for--for this appeal i;
� hearing that,uh, there had been a suggestion in the Morgan application that there was
; some relationship between square footage of struchues of the house and impact on �
wildiife. And we found the record to indicate just the opposite, that — that Tom
Cazdamon's letter had said that there was no scientific basis to come to that conclusion, ' �,
as I recall. So that's--thaYs why those minutes were submitted. `�
�
` HAI2PER Thank you. ��
1�
1 TUITE Any other questions of Joe? Thank you. Now approaching the table. .
i
� CARVER Right. Spread out here and understand a little of what I'm doing. That's
. ,
� right. 'i
�; .
TUITE You need[inaudible]. =`'S . -
y- �
�
�
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12 MARCH 12,]997 y `� .
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CARVER Um,I here basically to sum things up and to indicate,uh,where I think
' things stand. Um. •`.
��
ELY Before you start Craig,I just wanted to--there is—the oudine that Biil ,
went out with the last time,there's a section of the proceedings for a summation. You ..
might want to,I have no problem with doing it now but you might want to wait until after
Mike Villa and Ellen Sassano—
:•:r.
CARVER That would be fine. ��.:,�,�`�.
�^�
ELY —give their presentation. ���'-
f l,.,-�r •.
+ TTJIIB Well,I'm sure there's going to be an additional comment after there are E` .
� other witnesses and public comment ['"
, ��
( ELY That's up to you. '. -
. . ' '1
i
CARVER It would suit me fine to just reserve all of this till the end as long as it's �
particulazly fine with— fi
, �,�I
i TUITE Sure.
{
• E CARVER --your permission and then we'lt just do it once and—
i
TUITE I mean,we're not going to hold you to a limited number of time like—
1
2 CARVER Great. LeYs do it this way.
. � TUITE --some do as it shouid be.
; .:;
i
i CARVER ThaYs good. And I can take it[inaudible].
�
jTUITE Okay,so you'll wait until the end.
CARVER Right.
TLJIT'E And leYs continue it with any witnesses,John,you'd like to call. -
• �.
ELY Uh, the Staff, Ellen and Mike Villa,I believe, have comments for the �
Boazd's consideration and just those two individuals.
TiJITE Okay. Mike and Ellen,you were in the courtroom at our last meeting,I
believe,so you've been swom in. �
5. .
SASSANO Yes. �
i r.
�
13 MARCH 12,1997 7'' `
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TIJITE Okay,good. .;
A,
SASSANO Thank you Bill. � '.��
7'[JITE You're welcome,Ellen, �
SASSANO I'd like to start by introducing three tetters that we've received to the
record. Oae is dated February 26,1997,and iYs from John McBride,and Joe,I gave you
a copy of this at the last meeting,I think,and so please have a copy. �'!;" � .
?.,; -
I
iTUITE Is that the handwritten letter from McBride? '
� SASSANO Well,this was a typewritten letter and I don't know if you want me to read
� . _� the entire letter to the record. �
` _..
,� TUITE No,I do not,unless someone else wants it.
SASSANO Okay. Uh,but Mr. McBride refers to,uh,the public heazing process in �
: this letter as well as,uh,the East Sopris Creek Road vacation,uh.... Well,why don't I
pass the record,pass the letter azound for review and add it to the record. Uh,in addition, �
_ ! uh the Plannin Office received a letter from Bob Chitd this momin March 12 and iYs ;1
g g> > �
dated February 7, 1997. I just have one copy of this which I'll pass azound and—well,it
� says February but it was probably,it was Mazch,actually. The letter is dated February
and that's an error. Um,I assume it's an error. Uh,and I have one copy of this letter, � �
which I'll also pass—pass around to the Commissioners for review. The appeUant has a
:� copy of that letter as weli. And then,uh,we also have a letter dated,uh,March 12— �.
, f I March 12,1997 and iYs received from Molly and Steve Child and this was addressed to i>
` the Board of County Commissioaers and I believe that you all have a copy of it already. i:
And,uh,Bill,do you have a copy of this for record? "
f �
? f t
` � T'UITE Yes,I do,um hum. G
v � �
i , SASSANO Okay.
: : I
�` T[JITE John? i
� E
* �' SASSANO And here's—
�
ELY Yeah,we've got that. Thanks.
;
�
• �
TUITE Okay. ;
C
SASSANO And Bob Child's letter is--is right here if you want to pass that. Okay, � 'df':
so,the appeal letter submitted by Mr.Hull covers several different aspects of the review �� � =
. ! �.
i.'
� i4 MARCH!2,1997 ' -
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that was done to establish building envelopes on the Hull probably. As Joe alluded to, ^;,���'���
• the appellant requests verifications with respect to wildfire mitigation measures or "
requirements. They've identified a type-o. These are certainly important issues but I �`•
think as Joe said it at the February 26 meeting,that they can be fairly simply addressed. �`�
Staff has addressed them in the memorandum I think,for the most part,to the satisfaction �;�.�,
of the appellant based on what Joe indicated at the last meeting. Certainiy we can address ..
the type-o fairly simply. So the funda—the fundamental issues that have been raised
relate to the use of the Land Use Code policies established in establishing the building
envelope and the house size restriction that was placed as a condition of approval.
Several factors came into play into—in establishing the building envelopes. One of the �.,R,��
things,as Joe just mentioned,that was qaestioned was the use of the 1041 regulations in
� the establishment of the building envelope. The court-ordered settlement creaUng the
, ,
� Hutl pazcel stipulates that building envelopes aze to be approved by the Planning Office.
� .
� Um the Planning Office has no other basis for approving building envelopes than the
I�
Land Use Code policies and regulations, including the 1041 regulations, uh, and John
Ely,in the packel that you received on February 26,gives a little bit more of a detailed ?-�
• ... � .'j discussion related to that;to the use of the 1041 rights. iJh,the policies and regulations
► that aze most pertinent to the appeal are those relating to natural and man-made hazards of
� 1041 review and resource azeas and compatibility with exisring adjacent neighborhoods. �r
'` So with respect to ]041,there are two principal concems on this pazcel. Um,wildlife k
habitat,including elk production azea,uh,on the upper,well,on a faidy lazge portion of �
the property,which is outlined on the map,uh,as well as wedands and riparian habitat,
. ;; um,and wildfire hazard. The wildfire hazard rating is low. Approval was conditioned on
standard wildfire mitigation measures sUpulated in the Land Use Code. Uh, Joe just
' asked for some clazification with respect to one of the standazd conditions regazding hun-
arounds along the access drive. That is a standard condition but,as you may recall from-
- from your packet, the County Engineer reviewed this site specifically and made a
� recommendation for — for one tumout along the driveway and that was based on
j preliminary information that he had but I think that—
� ,
� TUITE Tumout or tumazounds? I heard the representation that turnouts were
� acceptable but turnarounds were of concem.
�
� SASSANO Uh,I--I believe from my conversations with the County Engineer that a
tumout would be acceptable based on this site specific—
+ TUITE So that doesn't seem to be an issue then with tumazounds that Joe felt was `
� still out,okay? f
� �
� SASSANO I ttrink turnarounds is the standard mitigation language in the Code. iJh, �
� okay,so with respect to wildlife—
TUITE Excuse me, I--I interrupted me,so—
�,. . -
� !
�
; 15 MARCH 12,1997
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LAMONT However,when we talk about pullouts and turnouts, it's the same thing �+!;��_�?��':;
• because Joe is talking pullouts. - .
�i� •�.
WELLS A tumout is a widening of the road so that there's no doubt about— - :�a
;''',.'':!.
LAMONT Right. ' •.
i=•`.
WELLS —two—the ability of two cars to pass. itic.'1 :�;
;:�':%':_-
LAMONT Right. I just wanted that to be cleac �::
...>.;� .
i 'fUITE Now Ellen,Joe also raised as an issue the structural issue for a wildfire
area. Do you want to address that briefly before you move on to wildlife? '
i ,.,., . .
( �.._�; ..
� SASSANO Yeah, as — as I addressed it in the memo, the — the standazd wildfire �+;
� mitigation measures include some structural mi6gation standards for azeas that are in �7�
, _, high wildfire hazard zones. Um,Staff included these measures noting that this was an �;
� administrative review. Uh, the Board may wish Yo back off on some of those more �;
restrictive standazds given that this is a low wildfire ha7ard wne. So the Code intends to ` �
have those applied,the structural standazds in high wildfires. '����§•
': `�`
iFARRIS High. Md this is low. i
� � SASSANO Correct.
i il
' Y.
� TUITE Could you share with us briefly the thought process.
;
SASSANO Why they're required in high hazard zones?
�
� r TUITE No,not why,why the Staff felt it was required for a low wildfire.
{
i SASSANO I think Staff was taking,knowing that this was an administrative review,
Staff applied all of the standazd wildfire mitigation measures to be as conservative as
i possible,understanding that there was a board of appeals to the—to the—
,
- T[JITE Which is similaz to what,I believe,we did with the West Sopris Creek
Ranch in some areas. Because that was an intermingling of high wildfire azea and low
wiidfire azea. We had an appeal by Dr.Brad—
SASSANO Oh,Ice-- '
TUITE Westman?
�
SASSANO Westman,that's right. Yeah. ��
�.
, .
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� f6 MARCH l2,1997 i' '
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. TUIT� WesYman on that. ' ����'=�!'�
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FARRIS Can I ask one questionT ; ��,
• '•`�
TUITE Please. . '.':,'
FARRIS Generally,in a low,determined to be low wildfcce hazard area,you would ``' ,
not impose those mitigations,cortect? ��!� .
�_
9i'`
SASSANO Generally. ;_.:r.'';
' FARRIS Okay.
; _..
' SASSANO Yeah. Okay,so to move onto wildlife. As I said,the majority of the Hull
�' parcel,if you look on this map,and vicinity,is mapped as calving habitat production azea
, � for elk. Um,land--the Land Use Code prohibits development in calving habita� Based .
� on the Court order,however,we did not have the ability to deny devetopment on this
' property. We did have the ability to review the proposed development for compliance
i with the wildlife management policy of the Land Use Code. It states that it is the policy i f
of the County to identify and protect all wildlife habitat for the preservation of wi(dlife ?`�
' and to prohibit land use pattems which disrupt such habitat. To that end, we placed !`�
conditions on the approval which reflected recommendations made not only by the �
" � applicanYs consulting wildlife biologist, Dan Baharav, but also by the Division of �
{ Wildiife. We also placed a house size restmriction on the principal residence in order to
f limit impacts on wildlife. And by way of background,as.Tohn Ely and Rick Thompson
alluded to on February 26, in 1995 the Boazd approved development on the Morgan
parcel located at Sopris Mountain Ranch on West Sopris Creek Road. And I think Joe
jhas entered some background material on that—on that case. This is a site which has
� i similar chazacteristics to the Hull site in that it also contains a significant azea of elk
! calving habitat. During the Morgan 1041 review hearing,testimony was given by Kevin
� Wright, uh,and by Tom Cazdamone,of ACES,to the effect that impacts to big game
'"^ species aze directly related to the intensity and duration of ac6vities which take place
�.
�' within,adjacent to and in the vicinity of habitat areas. And the minutes that you have
;i entered into the record reflect that—those statements. Based on the County's history of �
�; approving hundreds of build -- hundreds is probabiy an understatement, of building �
� permits annually,the County has found that lazger houses on the average include more
t bedrooms than houses of a smaller size. As the square footage of a proposed house j
� increases,there is—I shouldn't say proposed house,I'll say it as the squaze footage of a I
house increases, there is again, based on County building permit records, a corollary I
increase in the number of bedrooms and the overall rooms in the strvcture. County f "
surveys have shown that the average number of residents in a hoase is directly linked to �
the number of bedrooms in a dwelling. And one of the--the survey—one of the—at �.
least one of the surveys that I'm referring to, uh, was a survey of over 300 local €,
households in the Aspen Schooi District. Um,it was done in 1995 and it shows that the `
number of school age children increases in direct relationship with the number of
/,� i "
17 MARCH 12,1997 '�;
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bedrooms in a dwelling. And I have a copy of the ordinance,um,which gives the—a �;�������
. compilation of that survey . It's Ordinance No., Ordinance of the Board of County , �.
Commissioners of Pitkin County,Colorado Adopting School Land Dedication Standazds `.. '�a
and it was Ordinance No. 95-20 and I'll enter one of those into the record. Um,the
County Land Use Code also establishes generation rates,as Joe alluded to,for the number ' .''•.
of expected residents per dwelling based on bedrooms. Um,and again for the record,I
have a copy of Section 3-130.50,figure 3-7,which is a figure identifying residents per
dwelling unit based on bedrooms and this is under the development exaction section of �%;_,.;���
the Code and I will enter that into the record as well. In addition,I have a copy of an �:<`�� `
article on impact fees that was pubfished in the autumn 1992 American Family '";v-K'
Association Journal. Um,this also concludes that there is a positive wrrelation between �r=� `.
! the number of people and the square feet of living area and the number of bedrooms in F>.�`��� '
� the residence. And,um,sorry I'm not handing these out to— "
�
l �
; TiJITE Tl�e applicant �.,
:'�F
� `
, SASSANO --the applicant. {.
�.;'.
T[JITE Xou do have copies of everything here? Okay. }�i
'��
SASSANO Yeah, here's this guy. And this is the, the APA Joumal article and
actually—
" TUITE Dueling papers,it looks like,huh Joe7 a
� SASSANO Lots--lots of papers. And let's see,specifically on page 5--519 of the
{
APA publication,there's a statement—
i
! LAMONT I'm sorry,what page? Five?
- �
1 SASSANO It's page 519. "�'
ILAMONT Five nineteen. •
i ,�
TUITE You want to give that to Joe?
_ ;1
SASSANO There aze severa{ tables which — wlvch — which are included in this 4
article. Table 4,which is included,sets out certain characteristics of residenrial units by �
the number of occupants. These data show that there is a positive correlation between the .
number of peop3e and the square feet of living azea and the number of bedrooms,family
' income,and the value of the unit. Um,in this case,implying that some or all of these
measures could be used as a basis to assess impact fees. Um,impact fees is the topic of
this article. And on page 523 of this same article,the last paragraph above Table 19, �
states that this article pointed out that bedroom-based residential impact fees are still -ts
somewhat regressive. Basing the assessment on unit size,however,is both more accurate ' � ����-_
t
� 1 g MARCH 12,1997 '
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in terms of ineasuring impact and certainly less regressive. Um,so Pd like to enter that � ��� .
for tl�e record as welL "
�..;��.
TLTITE You know, just to inte4rupt briefly, now I understand why they have
discovery. Jast as we got at the last momenY af the lasY meeting the appraisal and we `.-�'•,
really didn't have time to analyze it,we're now giving out your documents. I'd like the •
Board to discuss in the future when we have any of these that perhaps we do, in fact, i�.
;:..
exchange anything that's going to be presented because I could see where,God forbid, :�:�`�'•.�
i-
we may go into another day of ineeting. ThaYs not my intent, but right now we're �° " `
handing this out. Depending upon the level it could create that issue. So,John,I'd like ' c
I �'`^.�.
you to get bac[c to the Boazd on that in the future. Dorothea?
I.
-! FARRIS I hate to interrupt her,but with regazd to the school information and some '
of the infor►nation you just presented— i.w
f SASSANO Yes. '��
� _r
� ��.
FARRIS --um,it is also a fact when schools are determining impact,that trailers, ^-
for example,that are much smaller per squaze foot-- �:-
� SASSANO Um hum. ��
jFARRIS --produce many more students than large homes. So I think that, you
know,a balance of information seems to be important here so to rely merely on square
footage gives a not totally accurate pictvre.
HARPER Also,I'm--
� IRELAND Well,but we're not Yalking about number of students here.
� FARRIS No,but thaYs what the information was that was handed out to us was the t
� school districYs—
� HARPER And this--
_ :1
� FARRIS --study of houses and house size in terms of the kids that are provided.
E
; IItELAND Okay,to finish my sentence. We're not talking about number of students
here. � .
TIJIT'E Mick,you better speak up.
IRELAND We're talking about the impact and activity levels being proportional to
the square footage size.
i �4�-
� �9 MARCH 12,1997
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, FARRIS Okay,that acttvtty around— ��;.�!�vq'��
,:.
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IRELAND We're--we're not--the issue isn't the number of school children. We're ;r� .:;�
not asking for school impact fees here. ;;��
� � .i'�� '.:�'.
HARPER Then why were we— :� .: ='
�`�
FARRIS Given that information?
_-1-''::: �;'
IRELAND Because the information demonstrates, this article,I think, demonstrates �
that— ;,:d:'.r.,
�:
HARPER That it's more progressive. �'
IRELAND That the lot, well, iYs more progressive in per bedroom thing, but they �.Ic
s demonstrate that the activity levels increase the square footage and the square footage is �'�,y
� ; actualIy,repeating without reference to this article, a more accurate way of ineasuring :`
; impact than it is number of bedrooms. �c
i;y=�"�
HARPER Actua[Iy,if you read it,iYs demonstradng that at four and five bedrooms, `�
people make more money than people who have seven bedrooms and more people and
that they're feeling that iYs regressive. IYs—it's actually demonstrating not what—
' 7
FARRIS Several ihings.
! HARPER I think you're right,Bill. I think we need to read this stuff before iYs
� make a decision
- IRELAND Regressivity isn't the issue. The issue is whether the—the largez homes
, generate more impact.
i
HARPER The city is cwrently building hocries at Castle—above the water plant.
They're 1,400 square feet and four bedrooms.
-- IRELAND Fine. But that doesdt mean that if they were 2,800 square feet that there
i would be fewer impacts.
�
. � ;
i HARl'ER V✓e have a cap of five bedrooms.
�
IRELAND True. But this articIe says in — that there's independent effect, an •
independent effect on[inaudible].
HARPER I want to read this article.
SASSANO May I continue? 4 .
j �. _-
� !
20 MARCH 12,1997
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' TLJIIB Okay. Ellen?
�3
SASSANO Okay, um, so it has been the finding of the County in the past that the '":;'
greater number of people,tlie greater the intensity and duration of acfivity associated with ,`, '.
the residence and the greater the impact on wildlife.
Um,in establishing house size,we also looked at neighborhood character. Um,at thedast
meeting,there was a question raised as to what is neighborhood,what is the immediate
neighborhood. There was some reference made to both in the Staff memorandum. And ''� .
i so I brought these maps to try to shed some light. Uh,let's see if I can get everybody
oriented. I think iYs fairly cleaz. North is up and unforiunately I'm not tall enough to
! really be up there but I wanted—I wanted people to be able to see some of the areas �
' we've been talking about. And Capitol Creek Road is in heavy black identified as is East '
I
Sopris Creek Road. And,and,uh,and when Staff— ac�d the appiicant's property or t;
; appellanPs property is located right here. The County road plowing, and I didn't—I
. . '`� wasn't able to pull this at the last minute but I think iYs uh— �. .
.F'
� WELLS [Inaudible]for green[inaudible]. �•
. i
. SASSANO --yeah,okay,so it is about there given Rupert's contract for plowing.
�' WELLS Actually,you've pretty much shown it accurately.
l
` SASSANO Okay,the Monastery is located in this,oh gosh,iYs--iYs lazge. It's this
! whole azea,and the Child's ranch is--is right here. tJm,okay,so for immediate
i; neighborhood,Staff looked ini6ally just at the upper Capitol Creek Road area and
:� literally in the immediate vicinity of the Hull parcel. So,you're looking at this general
area. And in that area,at the moment,most of the parcels are a little lazger in acreage.
They're not the two lot,or the two-acre lots that you have down in Gateway or the one-
acre lots you have in Little Elk Creek. Um,and they are still fairly open in terms of
density. Some of them are still in agriculture. Um,most of them have not yet been
redeveloped although they may be in the future. Some of them are seeking approval for
! redevelopment. But that was the azea we were considering as the immediate �,
,
' neighborhood. Now,but even if you look at the lazger context of the neighborhood,
which contains R-30 wning in these—in the Little Elk Creek subdivision and the
Gateway subdivision up at the top,as well as RS-30 in the rest of the neighborhood. Um,
� looking at,so considering zoning on some of the older,smaller lot subdivisions done in
the 1970s and`80s,including the metes and bounds parcels of varying sizes along CaQitol '
Creek Road,and the parcels are,I don't know how well you can see this,but outlined in
black,um,and then looking at some of the newer subdivisions like J--J.H.McCabe trust
and Lowen Peck subdivision and the Lazy O subdivision down in the right-hand corner
here,you'll find that house size currently ranges from roughly 1,900 square feet to 7,800
square feet. And again,I have,let's see,where did that go;where is it? Um,I went ,
�. � -
through the building permit files,and this is,of course,public records available to �~ `
� �
21 MARCH 12,1997 ��
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• anybody,just to see what--what--what's currently on record for building size in--in �' !: .
this whole area. And I pulled random permit files and from that house size currently �; .�-
ranges from roughly 1,900 square feet to about 75—7,800 square feet and that includes ...,i�
Lazy O,that includes 7.H.McCabe,Little Elk Creek,Gateway,as well as metes and � •-•
'��+'�:,
bounds parcels.Um,the average house size,again based on this sampling,uh,is �
somewhere in the neighborhood roughly of 39--3,940 square feet Um,so,um that's the '<,�;
kind of—one of the things we consider when we look at--at neighborhoods. In this
case,in terms of square footage,that's what we--we're looking at '�'-` ��
9:-.:`-.,:.
IRELAND What's our--whaYs our authority to review on tlie basis of neighborhood �`=";" �
compatibility?
i -
� SASSANO There is a section in the Land Use Code policy-- .
i
i HOUBEN Actually[inaudible]. ���
Y
� SASSANO Thanks. So we'Il pull that policy for you. !r
Y�
TUITE Shellie. r
HARPER Just curious,the—what is the house size limitation per the Code for these
� homes? Is it 15,000 or did the subdivisions have specific limitations and caps for the �
i FAR?
I
,
� SASSANO In the R-30 wne district— _
� .4..."
+ HARPER Which would be which7
s
i
� SASSANO --in which Little Elk Creek and Gateway sit,there is a floor area ratio
established and I,R-30,I—I think it's 13 percent. ;�
�
� HOUBEN Do you want to read it?
_ � SASSANO Um,your other,3hellie,let me--let me add this to the record and then I'll E
finish—
•'i SASSANO Oh,okay.
�
SASSANO Is that okay? Um,the policy in the Code that refers to existing,adjacent •
� neighborhoods that states that it is the policy of the County to insure land use proposals
are compatible with existing neighborhoods. To this end, the Counry will provide
notification of pending applications to the affected adjoining pmperty owners,
homeowners associations and neighborhood caucus groups. Um, but in any case, the � '
compatibility with existing— -;,
�,
'f, -
' 22 MARCH 12,1997 � ;.
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, CARVER WhaYs tlie number of that? �'".,
: _,.
SASSANO Uh,2-60. And so,yes there is a floor area ratio established,I think iYs 13 :-.�►�
percent in the R-30 wne district. Um,so,lot size has some bearing on floor area in those ��•.��,
older subdivisions and then in the RS-30 zone district,as has been stated on the record �
several times,um,an owner may build up to 15,000 square feet and beyond given special �
review approval. ; �:
'''�.: .
HARPER I just wanted to know on these which of those are the various zonings so I
know which one-- ���r
SASSANO As I just stated,Little Elk Creek and-- '
' HARPER R-30. �
t^
I SASSANO --Gateway aze R-30. The remainder of those identified aze RS-30 and I'll � „
�j note for the record that there are no covenants,um,there aze no land use approvals,at
' least in my review of the records,tl�at restrict any of these parcels,other than the floor ��,
area in the R-30 zone district, um, to less than the — the floor area allowed in the '`'•'
underlying zoning. �
� HARPER Okay.
_ �
�
� SASSANO Nonetheless, they —they are, uh, significanUy less than the allowable
square footage in the floor area. So,to conclude,neighborhood characteristics were used
in addition to consideration of impacts, the activity levels on wildlife, to establish a "
residential floor azea restriction. Mike Villa is here to answer any questions you may
j have and perhaps to make a presentation relative to activity levels and how they may or
- ?; may not affect wildlife.
i
TUITE Okay,be--oh,Leslie.
;l
+ LAMONT Questions from me. I would assume, given the nature of Lazy O, for
example,that these residents,that there are accessory outbuildings,agriculture buildings �
- that aze not--
i
SASSANO What I identified was what we had on the building permit file,and so it's- �
I it's possible -- my guess is particulazly for Lazy O that we've got -- we should have �
building permits for all of the shvctures, including accessory structures with the •
exception of those that were exempted.
TUITE For the benefit of what I understand,Joe may be aware of this, it's my � ,
understanding that McCabe and Lazy O,you cannot build a bam per se,unless you use '
the common facilities that have been built,that all owners share and pay proportionally, ��
,� -
23 MARCH 12,1997
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depending upon your use. I know definitely tUaj's Lazy O's situation with their horse ,•' '_
• center. McCabe,I think that was the case. :.i;,; _,.�
M; �a
ELY The only thing I tracked to on McCabe on Ellen's chart shows 3,500 ..,�•�� • .
:1'
square feet of accessory. ` �
:•�,'.
•> .
CARVER Do they have machine sheds,a stable-- ;{,:.,; �.
:.;�:....',
ELY Sothat particu[az— �` i'�
,:,ir..,�;
TUITE So McCabe may be allowed to,yeah. k'�`^: "
�•. -::.�. .
�;..., .
j SASSANO Although that -- there are two McCabes, as I discovered tlus morning. F-`:; '
� There aze the McCabe tracts which I believe are 35-acre tract subdivision. It is a 35-acre ��;- 4
;�:_
� tract subdivision which was done,I can't tell you when,and then there aze--there is the � •
;:'�
i McCabe low-impact subdivision which is the-- �� ,
� �jt;
€:;.._�
TUITE The low-impact subdivision was the first that came through the process h.:�__,
several years ago. Uh,the latest one came through just a few years ago. �F
SASSANO Correct. So,Leslie,at least as faz as Lazy O goes,I--I think that our ,�1�i
" building permit records should reflect because it's as new as it is. -
LAMONT Right. �
SASSANO Anything else,with the exception of agricultural stuff,which might have
� been exempted from building permit review.
LAMONT And then with regazd to the proposed building site an the Hull property,
E now from our first hearing,thaY heavy-dash black line,that kind of goes up-- ��
i
� SASSANO Yeah.
i
,
- � LAMONT --and goes azound the McCartney Mesa- tr
. SASSANO Um hum. �
LAMONT --and up around there,all that is—that is the critical elk caiving habitat �
• line,correct? •
SASSANO Correct.
LAMONT So there's a portion of the Hull property that is not within critical elk �S '
habitat. [',. . �
� i'. _:
24 MARCH 12,1997 1 .`
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SASSANO ThaYs true. <'�•• .
WELLS [InaudibleJ mapped critical habitat ;:.:���'
LAMONT Yeah,so my question is,was it topographicalty impossible to consider t[ie � � ''•
buiJding envelope on the other area or given the entire acreage,this is still the best site '�`.,'.' �
from a lot line perspective because of roads and access.
;�.....''_..
SASSANO Well-- ��<'`�''�
' r
�::;^..',...
LAMONT Or what is--what—why was that selected? :
. �� •: -
r..
,'. SASSANO Mike Villa has some comments but I can tell you that the letter that you
! have in your packet from the Division of Wildlife indicates that, um, the proposed �I��,
j building site will be the least impactive to wildlife on the entire parcel and that's taking �.;.
' _ � into consideration both the calving or production area and wet]ands that are located on the I � .,r
lower bench as well as riparian areas on the lower bench. Also taking into consideration �;
the impact that would be associated with extending and improving the road from the ��
upper--from the ridge down to the]ower area which used to be accessed off of Sopris
. Creek,so. r
�
. � T[JITE Shellie.
�
I
'• HARPER Let me see if I got that right. So what you're saying is that though our
� Code doesn't allow any building in an elk calving azea,when we went on the site specific
� to this area, in fact, the least impactive building site on the erttire parcel, even though
portions of it were out of the elk calving,there's actually a piece in the elk calving azea?
i
. ,
� SASSANO The statement made by the Division of Wildtife was that the proposed
� building envelope was the least impactive building site on the pmperty. i
i
HARPER 0[cay. By site spec�c.
_ � SASSANO Based on the Division of the Wildlife.
1 ELY Shellie,I just wondered if Mike Villa wanted to add anything to that as our
� � wildlife officer.
�
,
. VILLA I think the way the map should be viewed as a tool for[inaudible] -
that Rick T'hompson had talked about the last—the last rime we met,and really,that's all
they aze is a tool that gives us an idea of where to look and when the site specific was
done,recommendations made by both Randy and myself all aze based on what's going on
on the ground. [Inaudible]site specific and may--may be in conflict with whaYs been
� outlined on this map. y�'
I r' I'
I �
25 MARCH 12,1997
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LAMONT Well, Randy does say the bounds of the property is significantly more ,-``�'� ''����
� [unintelligible]for multiple wildlife species so-- �
WELLS Let me relate my site visit with--withRandy. Um,a number of us met out '`�
on the site. It's been a couple of years now,but,uh,as it huned out we were late and ,��.�;
Randy had already come into the site and when we got up to the proposed building site, ..
Randy was coming up from down below and he was fairly excited at the time and a little
upset. Um,he thought we were proposing to build down below and he was very upset
about that. $ut once we told him that we were talking about the site up in tl�e corner of
the property,he cooled down considerably and felt a lot more comfortable so. �,:��
� LAMONT But he thought the--like where the accessory building envelope is now. *;',, .
;
WELLS Yeah, the maps would suggest, from a red flag standpoint, that the
accessory site would be preferable but now that the County decided to vacate the East �
_ Sopris Creek Road, there's no way into that site that doesdt require us to drive on �
' -�� Huough the --the calving habitat and down to that other site so the County basically �
�� directed us to --as to which access the County would like to see us use. We put the •
bwlding site in the most accessible comer given that access. We -- iYs the one that �
: Randy has expressed a preference for.
LAMONT That's what I thought. I just--we had not really talked about why the f
- ! location is the one here[inaudible]. !
� TtJITE Shellie?
�=.
HARPER Just one last question, um, this is reatly helpful, �
•i Ellen,getting this to us,but the thing that I'm noting as I look at this is we have on this
. 1' gnph at least tluee areas that do not have--that they have 15,000 caps,yet nobody has
buiIt even close -- the closest is half of that cap. Are we maybe worrying about .�
. something thaYs not an issue, thaYs a potential but is not a reality of whaYs actually �
� happening in the County. People are not building 15,000 square foot houses7 It looks C
}I like they're only building sixes and sevens? �I
�. [
f SASSANO Are you asking--I'm not sure that I can... �
_..i F
� HARPER I mean,do you know where there are lazger houses being built? �
` I
�
' SASSANO I know that based on some information that was given to the Board �
. recently that there aze larger houses being built. I can't tell you where they are and I �
don't— �
,.
HARPER It looks like on 22. t
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26 MARCH 12,1997 '�
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TUITE Uh, you want Mike to begin. Are you finished with your presentation '
E11en1 .�
�,.
SASSANO I am finished,yes.. . '�'�:;•
• •.,�
TUITE Would the appl--would the applicant like at this time to ask questions of
E1len7
�• �' �.
HULL I would a few. Um, 'ust to clari �• '�
� fy—I don't think there's an argument p��
about where the building site should be but in answer to I.eslie's question,we looked at I.:;^.:,;.
building down on the bottom[inaudible]two. IYs two miles through the elk--it's not the
� elk calving area and most probably by treacherous as well because iYs quite a steep drop. �
There's actually--so that was one of the main consideradons with regard to that, the •
impact. The other thing is,if I could jump behind,this road,this is a good map but the
road does get plowed—this is the Ruperts' parcel. The Ruperts is contracted by the T,
� County to plow the road and it does stop right here at the end and it does go into the .
Ruperts.
t:
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�
' WELLS There's a--there's a mistake on this map that we should point out. The � p
green indicates public land,obviously. This is the BLM tract right here. IJh,one of the '�
reasons I got confused when Ellen was making her comments is this is actuaily a piece of �
the Maurin. The Maurins'is a T-shape. This was the Maurin Estate piece that was part r'�
' of the 1980 stipulation. This piece merged with this piece. It's owned by Ms. Maurin,
individually,as I understand it,so--so that shouldn't be green. It should be private land F
and be white so this is Rupert down here and Mr.Rupert operates under--under contract
with the County to maintain the road down to his property so.
iSASSANO True statement.
� TUITE Ellen,you agree with that,right? •i
i
SASSANO Yes. 9
� ,
TUITE Okay.
HULL Just one more question. If--tract two in the Hagus property which is that 'I
. they have a 6,500 squaze feet— �
�
TIJITE Ivan,if you could speak up just a little without being at the table. '
HULL Okay. Tract two in the Hagus property that the main house is over 6,000
square feet and about 3,000 plus in accessory buildings, if the Haguses came to the
County and asked if they wanted to put an extension on the house and took it up to �j : `
10,000,would they be denied or even 15,not that Pm suggesting. What I'm trying to get , .
� at,because they've onIy built 6,SOQ do they still have the right to go to 1S or? �A��"
1
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27 MARCH 12,1997 "'
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SASSANO 1'hey have the—thay have the right ,� ':,
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HULL All right. '��'.,.:�;
LAMONT They have the ability to ask and depending upon the proposal,there would �`� �
be a 1041 review in[unintelligible]. �' : `
.�:,;;
9::��:=
SASSANO Depending on the circumstances,yes. ;��=,�,.4•
1
; CARVER I have a couple of ques6ons. About this article,which the Chairman has ���� :�,
+ indicated we haven't really had a chance to read,but--
� TLTITE Well,I also indicated that we didn't have a chance to read the appraisal so. �"'
1 Y�
` �� CARVER And I have no--I tlunk--I think we can get to the bottom of at least a
� couple of these questions,with the brief time we have. I don't have any compiaints with �:;
that. But first of all,whaYs--is this what the County is relied or what the Staff was �a�
relying upon when it imposed the square footage limitation?
���
SASSANO This specific article7
CARVER Right. `
�.
iSASSANO No.
fCARVER This came up to your attention a8er the limitation was put on those then,
. ; is that right? .
i
SASSANO Yes. +
.}
CARVER And it's the Staff's understanding this article lends some support for the
�� notion that there's a ratio -- there's a correlation between square footage and wildlife ��
_ i impacts? Is that the reason why this is being submitted?
SASSANO Uh,the article indicates that there is a correlation between square footage �'
' and number of people in residence, the correlarion being that as the square footage
increases so does the number of people and it leads back to the azgument that the,leYs
see,that was made during the Morgan review which siated that the intensity and duration '
of activities which take place within,adjacent to and in the vicinity of habitat azeas has a
direct correlation to impacts to big game species.
CARVER Okay,well I noticed with looking at these tables that the square footage `:�
tl�at is actually studied is divided into categories,uh,the lowest of which is 800 or square s; �=-: �
� '-
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• -- S00 square feet or less, the highest of which is 2,600 square feet or less. Am I ��"���
misreading that or is that--
i�
SASSANO That--that is what it says.
CARVER Okay. Then,this study then doesn't study any correlation between say ��•�r
2,600;5,000;7,500;10,000 or 15,000,anything along those lines,right?
SASSANO In my reading of the article,thaYs a correct statement. It simply makes a
correlation that as the size of the unit increases so does the averagosity.
� CARVER But the data itself would say that that conclusion is based upon the study .
wlvch goes up to only 2,600 square feet and you have to extrapolate past 2,600 in order to i
' �� draw any conclusions as to whether that correlation continues.
SASSANO Whether it increases?
, . . j
F � a.
� CARVER Right.
i
SASSANO ThaYs--thaYs true.
; CARVER Are there any studies the Staff is aware of which would draw that
� � conelation for squaze footages between 2,600 and 15,000?
SASSANO I'd say only the building pern►it information that we have on staff in the
County which indicates that typically as house size increases, so does the number of
� bedrooms and rooms in the house and so does in correlation the number of people.
- i
_ j I. I CARVER All right. Well now,again,now I'm concerned about what that study is ;
covering because if you're -- if you're drawing conelations between two bedroom
i � houses that are 700 square feet and five bedroom houses that are say 3,500 square feet, i.
i that might be a different correlation than five-bedroom houses Yhat aze 3,500 square feet '
7 { and five-bedroom that are 15,000 squaze feet and I want to know whether there is any �
j study within the County which draws the correlation in that fashion? ;
� SASSANO As I said, in terms of a summary study, no, and all I've relied on is �
• F building permit applications. �
i '
i
CARVER So,as far as you know,within the range of sizes that this Commission is �
considering for this application, there aren't any studies that draw any correlations
whatscever within that range--within those ranges?
SASSANO What--what are referring to as a study?
CARVER Something the Staff has looked at and based its conclusions on. ^"'' '
i
29 MARCH 12,1997 I,,
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SASSANO Other than building permit reviews that have been done in the past,no. �`�
'�'1�
' .. A�
CARVER Okay, I'm l�aving a little trouble coming to grips with that because '
although I did not have a lot of time,at least I had something I could review here. What 'y '.:'.
do we have that could be reviewed to analyze, either from my perspective or the '-=
Commission's perspective,with reference to the building permit7 �`� ''
�:�.;,
SASSANO The building permit records aze public records and they may be reviewed. ft`"`•'
;.�::v�
CARVER But they're --they're massive data and my question is have they been '.k'::;�-:'
� correlated in this fashion in some kind of a written document that we could look at and '�;_`<:` -
' see the basis of the correlations? e 1 . .
.�•.::
� :T7
� SASSANO Not that I know of,but I'm not—I don't know for sure whether they have �:��`.
, . i them or not. ;�; '•
�:�,
� CARVER And the Staff didn't do that for this proceeding?
�:��
..x�
SASSANO No. j� V,;�
CARVER Or for any other proceedings,is that right? , �
• i
:i
i SASSANO I did not do that for this proceeding. Actually,come up with a summary,a 3
I written summary other than what we have on this table today.
a '
( CARVER And the other two documents,I'm not sure,were these handed out--these
came from your presentation,is that right?
� "
SASSANO Yes,right.
.�.'
i
CARVER WhaYs the significance of them, I missed that as they were being ,� �
presented.
SASSANO Um,these were handed out just to corrobonte the fact that the County has � ';
looked at number of bedrooms in houses that relates to number of residents and that in !
fact we have relied on a finding that as the number of bedrooms increases,so does the ��
number of residents in both cases. �
, CARVER But I'm having trouble understanding the relationship or the relevance of ! ;'
that fact to squaze footage,per se;is there any?
SASSANO As I said,the building permit files indicate that the lazger the house,the *:
lazger the number of bedrooms and/or rooms in general and the larger the number of
occupants. s�' ' _
` _
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' r�
30 MARCH 12,1997 t ��
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CARVER AII right. Do we know that that is a correlation that folds if you're ` �
:��; •i:
comparing 5,000 squaze foot houses versus 15,000 square foot houses7 , .ti,
a
_,.: ;...
SASSANO I think fhat the building pemut files -- I'm not sure I understand your �'':
question. "��.�.
�:.
CARVER Intuitively,not having studied this,there might be a relationship between `��: �' .
size and bedrooms if you're in the 1,000 square foot range, 2,000 square foot range, �.p �� '
maybe even up to the size of my house which has three bedrooms and say 3,000 square -�'�:rR'
j feet, okay, once you get past something like 5,000 square feet, it wouldn't intuitiveIy :
�;;;;",::
make sense to me that there was necessarily a correlation between size and bedrooms, ��:�''�� '
particulazly if all of them are capped at five bedrooms. Now my question is, is that
intuition somehow belied by the data that you've studied7
' SASSANO Well, we have found also that in addition to bedrooms, the number of Y�
� rooms in a residence, typically increases with squaze footage and that the number of . '
rooms and bedrooms ultimately--as--as that number increases so does the number of �,`_�
residents and/or,well,I'll leave it at that.
'�N
CARVER Your -- your sort of control study is now got two variables in it, the `
• number of rooms and the number of bedrooms. UVhich of those is the important one?
, Bedrooms or rooms or does anybody know?
� SASSANO Well,I'd say both have been considered as important. _
( CARVER Separately? Not separately so that we can isolate which of those two is the -
. ' important one.
f
j SASSANO I think they're both important i
�
i
� CARVER But there's--
_ .__ J SASSANO Both aze being considered to be important. �
�
iCARVER And is there any documentation thai I couid review to see whether that
; conclusion is based upon the studies you're talking about?
�
. SASSANO Other than the building permit records,um,no. ,
CARVER Thanks.
1`CIITE Hold on a second. Dorothea then Joe.
,�-
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31 MARCH 12,1997 i :
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• FARRIS Well, I just l�ad I guess it's more of comment and a concem. This °�
document,brief reading,has to do with determining impact fees to cover infrastructure : -+,
costs because of sociceconomic consequences. We're discussing the size of a house with -:;�a
regard to wildlife impact. So that relationship sort of disturbs me the fact that iYs in Palm '. -
':,'
Beach, County, the fact that it, um, I guess the application of it with tegazd to this " •
question,because it's talking about impact fees for a very different reason,the application
of it. I'm a little lost with it. I—I--
�:':`..r
T'UITE Ellen,do you caze to respond?
�
�:�r�
j ELY Need to change the tape real quick,Bill. _
if ,.::�.
� � TUITE All right. It liad to be quick. ! �
SASSANO I think just the correladon is that, uh,there is a determinarion made that
. ± impact fees would be based in part on populaUon and that population was related to house ,.
� size. And in our case,we're trying to establish the fact that an increase in acfivity level �.:..
� and a correlating increase in population related to house size has—has a larger impact on �
wildlife. It's that simple. !1 f
� TUITE Joe. (�
�
• � WELLS Bill, just a few more questions of Ellen. Ellen, on the issue of
� neighborhood compatibility,uh,is there a map that defines the neighborhood in this area
� that's been considered by the County and adopted by the County as the standazd for the -
� neighborhood or is it just sort of in amorphous,uh,thing which everybody makes its own
conclusions as to what constitutes the neighborhood?
1
� i SASSANO Uh,there is no map that I know. There is a Snowmass/Capitol Creek
fCaucus which is — which encompasses this azea. Their -- their caucus boundary
j encompasses this azea though I don't know if we actually have a map of that boundary.
t
� WELLS Are you awaze of any standards that have been incorporated in the Code to
j — to implement the policy with regazd to neighborhood compafibility? Are there
� standards that one can turn to such that if they address those standazds,uh,they can be
asswed that they sarisfied the Code provisions?
• E
; SASSANO I've—I've read the policy into the record. I think it was—it was fairly
clear what the policy states. '
WELLS But--
SASSANO Um,specific standards for compliance with neighborhood compatibility,
no. 4, `:..',-..
�. •
14 -:
32 MARCH 12,1997
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WELLS You passed out a list of homes. Uh,just for the record, you weren't
suggesting that--that those square footages necessary—necessazily represent homes that
are capped at those squaze footages,right7 In other words,those are the current square ��
footages but not necessarily built out square footages7 �:�'
SASSANO Tl�aYs correct.
WELLS Okay,could you once again characterize,just so we're cleaz,uh,the extent `7�. ��
of the R3-30 zoning in this area? Is it,just--just for the record,does it only--only apply
to upper--upper Capitol Creek or does it extend a considerable distance down valley or-
_�
iSASSANO Excuse me. On the -- on the map that we have on the boazd, it does
I extend, with the exception of Little Elk Creek,excuse me, Gateway down to --to the
� extent of the map that you can see, there's actually another wne district in Little Elk
• . I Creek. It may be AFR-1Q I'm not sure,on the East Sopris Creek side.
` ,
,
i
WELLS So this side is zoned just the same as Lazy O and the McCabe Ranch.
_ SASSANO Right.
. , ! WELLS As far as zoning is concerned and you haven't—haven't singled this area
E out for—for a more restrictive zone category. Uh, you clarified,didn't you, that the
' � square footage --that there's no floor azea ratio in the wne and therefore the 15,000
; square foot cap is what applies at the present time? �
: SASSANO IYs not a cap,technically,but yes. �
. i € ["
WELLS Okay. No further questions,Bill. c
� i TUITE Shellie.
:
R � Y
� : HARPER Um,just real quick. Going back to this site, I had a very interesting '
j � conversation with several of the other County Commissioners at the Club 20 meeting and �
"- .: � unbeknownst to me,I guess Pitkin County has,if the not the lowest,one of the lowest ;
� mill levies for schools. I understand up in,maybe Dorothea knows,but somebody was '
• � telling me Garfield was like.5-- i
` i
• FARRIS Oh yeah,Garfield's very high. Our mill levy is low. � '
t
TUITE They wish it was.5. �
HARPER Yeah,well,whatever. IYs very high. ' ".:
;,�,-..
FARRIS Fifty-two mills,I think. � ��
�
�
i 33 MARCH 12,1997
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ELY Pitkin County has two districts,two school districts. `.,�'.�
,.�
HARPER And I was surprised what I was telling from that and I'm going back to, ' • ',
and I wish our viewer wildlife person was here,a fact that just occurred to me based on
what you were showing here on the impact fees of the vaz— not the impact fees, the
impact costs on houses and bedrooms,I find it curious that empiricat evidence is showing � . ��
that Lake County is,there's a referral from Lake County and the GarCo commissioner �.`�`�:±
both beating on me that our—the topic was our mill levies aze so low,why aze we not 4�;�"
helping our employees in the other areas and Earl was mad at Vail becanse Lake i•:� ' ,
� County's taxes aze not so high for school children,and GarCo is mad at us. Now,they .
' have azeas where they have small houses. We have azeas with big houses. My —the •
empirical evidence that I'm beginning to come to is,and I want to see where you guys ,
aze,it's like the big houses don't have people who live here who don't have as much of
Y
- � an impact on a community as the small homes. Do we have any data to show that?
i FARRIS Thirty-nine percent of the school district budget a few years ago came '•'-
from second home owners who provided very few kids and therefore provided a lot of �:�
� money for school that is starting a building phase. That's why we're considered rich, �
they're considered poor. That is no longer accurate because we aze now limited by state
legislation on what we can raise. But one mill makes a lot more money in Pitkin County �
- '• than it does in Gazfield because we have wealthier homes and higher valuations.
� HARPER ThaYs why--
FARRIS And it will not--probably will not change.
- � HARPER Ellen, I really appreciate you getting this report but I think it wasn't
� helpful for us in that I don't think it applies to what we had there but thank you for trying ;
� to get what I want,information back where the County is going,but we need something
; stronger and more applicable to our area. IYs like--I don't think it's justifying where we
j want to get to.
1
� TUITE Um,Shellie,I'm a little confused on the--your empirical evidence that
� you were trying to draw.
. �
� HARPER All I'm trying to say is this. If Ellen has presented something here to
� show the impacts of bedrooms and number of people,so based on this,why is it working .
out opposite in Pitkin County? If we have all these bedrooms and al!these—and if the
square footage is generating such a high impact on the community,why are our ta�ces so
much lower?
�
! TUITE Our taxes are so much lower--
i ' ]' �. �:°�--
HARPER We're paying for the schools. 1
�
i
; 34 MARCH 12,1997
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TUIT$ --because our appraised value is probably almost the greatest in the state •` -�:
and a caised value and mill le correlate. ' �
PP �'Y +- -�:,
, �,�
HARPER Right. ,.:�i....
.,
, :�.
TUITE So,the larger your basis,in our case we have a huge basis in a fairiy small i,'' "
` county,the [ess mill levy per se. T'hat doesn't mean you're generating]ess money; in
� fact,you're probably generating more money and I know we're generafing more money ��' �
� because that's been an issue state-wide that we get too mnch money for our local schools •�"'�w +'
versus other areas that could use more. And we do that with a small mill levy because "`�m� �
our appraised value is so high, real estate is so valu -- valuable. When you have
" employee housing that selis for $225,000.00, and that's employee housing, which is �-
supposed to be on the low end of the food chain, you're generating a pretty good
appraised vaiue. That's why. I wasn't sure if you were trying to get at number of school .
' . � children or whatever,which is a different issue,but we aze generating more money than ,
; Garfield and what was the other coanty you used? 4�
„
' HARPER Uh,Lake,Lake. ����
. f%,
FARRIS We're always[uninteltigible.]
ii
.! TUITE For our[unintelligible],yeah.
.,
�
; FARRIS [tJnintel[igiblej thaf for being a rich. �
TUITE And we're doing it with virivally a minimal mill ievy. �''
. E` �
�. HARPER And we're doing it,I think,partially because the empirical evidence that t
j:' I'm detecting here is that in--in azeas with smaller houses,okay,wherc people aze poor, E
�' they have smaller houses. The smaller— �
'+ i
�� LAMONT NoY necessarily. You know,T don't t[iink this is really relevant. i
� � �� i HARPER Well,I'm trying--
� � � LAMONT I don't realiy want to go ri113:30 on this. �
i
. HARPER Okay. �
f
LAMONT So can we focus? (
G
HARPER I guess what I'm saying is this is I'm seeing that big houses pay more in
taues and therefore the azgument that they aze more impac6ve financially on
communities,I don't think iYs tme. "�'-•
'-.--
j 35 MARCH 12,1997 �
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LAMONT It depends on how you define impacts. ` •',
i�
HARPBR The evidence that was given to me was monetary,not wildiife,the impact, ,'_:,-;.
and I'm just real uncomfortable with that. It--I'm on the track where Ellen is trying to '.
go. I commend her for trying to get evidence for us. I'll let go of it. But this—this
evidence has got me more in a tizzy of proving actually the opposite,the more I thought S � ��
about it,than proving where we waut it,what we wanted.
TLTITE Okay. LePs strike that evidence then. John? �,�. '
i HARPER I think iPs a good idea.
1 ELY The publication that you passed out Ellen,the opinions in that article,are '
they—are they accepted and relied upon by members of the planning profession,in your 7;
.� opinion? .'
! SASSANO In my opinion,well,I can't speak for the entire planning profession-- (�
i !�f
ELY Yeah,in your opinion.
. �
. ; SASSANO But yes.
' ELY Okay. And the publication of that azticle appeazed in,is that a publication
that is widely used to refer to by members in the planning profession?
SASSANO Yes.
t
� ELY ThaYs all the questions I had and I'm not sure if it matters to you Shellie,
but just for point of clarification, Mr. Hull's property is in the RE-1 school district.
• f Whatever--
A
e
.� FARRIS Pitkin County RE-1 Aspen or RE-1 Roaring Fork.
�:
!.
- .j T[JITE Roaring Fork?
�
' E ELY RE-1 school dishict.
Gt
FARRIS Well,Pitkin County is also called RE-1. IYs Pitkin County RE-1 called '
, the Aspen School District--
ELY As opposed to the Aspen—
FARRIS But you mean Roaring Fork. You're talking about Roariag Fork, , ��'�
i Carbondale,Glenwood,Basalt. �
f
I
i36 MARCH 12,1997
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ELY Exactly. �. �� �
i� .c:
CARVER Mr.Chairman,since John is being so legalistic,I wonder,and trying to lay " �'=
a foundation,I wonder if I could ask another couple of questions of Ms.Sassano. Uh,is `��`�:�'
the publication that you're referring to commonly utilized for the purposes of assessing . .�
impacts on wildlife,uh,professions in your area of expertise?
SASSANO I can't—as I said,I can't s eak for the lannin rofession in eneral,uh, ```',.
P P 8 P S f;;::'-�. "
and I take it for fee use to establish uh a correlation between house size and populadon, ;;�>;� '�
uh,and it makes,I think that's--thaY s the intent of the--of the article. ;;=`':.:;
i �:•,�.,: .
i CARVER And the specific purpose of article is to measure impact on schools and ,
; pazk budgets,is it not,recreational park budgets such as[inaudible]? '
� . SASSANO Correct. °'�"
;.
� CARVER It's not purporting to measure impact upon wildlife, is that a correct j%.;
! statement? l�,�
I
SASSANO ThaYs conect. �`^
' TUITE Well,kids in school as alluded to—
CARVER IYs a species of wildlife,I agree.
SASSANO Wait a minute.
- I IRELAND A form,I believe a form,not a species.
�
. i LAMONT You do make an interesting point. Your--your witness at the last hearing, `
um,Rick Thompson,is that his name?
CARVER Right.
� LAMONT Um,mentioned and offered the opinion that—that the greater number--
c that second home owners,greater homes are part—are linked more to wealthier second
� home owners who tend to be older and not have children and that goes along with the
characteristics that can be defined as a more ideal situation for reducing activity to
� wildlife.
CARVER Actually,I think that slightly misstates the thrust of what he was trying to
get at. VJhat he was saying was that he did not know of any studies,and this is reflected
in his letters so I am not paraphrasing,he said he didn't know of any study scientifically
correlating house size,square footage,to wildlife impacts. ' "_
4 -
�
37 MARCH 12,1997
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LAMONT Right. - .
i.i:T�'.t.
CARVER He said there may be some positive correlations,which have been cited by " ,:•�`'�
the Staff as examples,and he says there may be aegative correlations of which he could "�'±�� ��;'
think of a few,such as those tUat you just mentioned-- . '.
�:`
LAMONT In his opinion.
.:��.�:: •:
CARVER In his opinion,he said you can]ook at it either way. He said scientifically, ,:;;::��:.:
nobody has looked at it either way to establish the existence or Iack of existence of a k
! conelation. ThaYs what his letter says,that's whaY he—
I �` -
�,;;. .,
LAMONT Sure. And thaYs not what I said. What I said he said in his opinion da de �j.;
da de da da. "�: °
. . . �.r
� CARVER Yeah,weil-- r � ..
i i..
LAMONT I did not[unintelligible]that he said studies showed or-- ';'�:�
CARVER Right. In his anecdotal opinion it would be— �`r
LAMONT Right.
CARVER —a ve d
ry good pazaphrase of what he said.
i
TtIITE Okay. Ellen?
�
SASSANO Cindy just asked me to clarify. She pointed out,in—Joe asked whether
� there was any standards established for neighborhood compatibility and Cindy has been
; kind enough to actually cite the sections that do,um,that do provide standards, Section,
� for the record, section 3-210.10, special review section of the Code, uh, a 1041 is
considered to be a special review,sections 8.4,8.2 --
iHOUBEN In that order.
�
� SASSANO -- okay, and 8.1. Um -- 8.1 refers to compatibility with master plans `�
• which sometimes are established for specific neighborhoods,uh,and then that--and that �
one is under Section 3-210.1Q, uh, paragraph 4, reference A.4, the character of the '
immediate vicinity of the parcel proposed for development and surrounding land uses— '
the character of the immediate vicinity of the parcel proposed for development and
surrounding land uses for enhancement mixture of complimentary uses and activides in
the immediate vicinity of the pazcel proposed for development,uh,okay,that's when we
� �
set up the zone district. So,and then the growth management,uh,section of the Land "
� i.; .
I ��'~-
� 38 MARCH 12,1997 �•
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Use Code also refers to compatibility for comprehensive plans[inaudible],so,I cited the '•:�-.�-'
;'� `��
section,I may not have read it correcfly,but. '
i.'y� .r
TUITE Mick. �:�'�
,;:. �.,'.
IRELAND Ellen,is this property part of a neighborhood caucus? :c ....�•��
.e
1:
SASSANO Tt is part of the CapitoUSnowmass Creek Caucus. 'S�� "'
.•���:���7. .
IRELAND Does the CapitoUSnowmass Creek Caucus have boundazies established by i;;'-•-..4�
�� i:�-l.; :.
� its charter or some documentation? ,,:-.
k:•=°"
, .._ ...,
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; SAS5AN0 I assume that it dces,yes. �:
c:::
IRELAND Um,to the best of your knowledge,uh,in the exhibit you gave us of house �%'�' `
(.Y�
• sizes in the azea,ue the metes and bounds parcels on Capitol Creek Road built homes r �� .
�
i part of that? �
; • �`
i
j SASSANO Yes. �'K�.
I �.�
� IRELAND Are the—is the Gateway Subdivision part of the Snowmass/Capitol Creek �r�
_ Caucus?
;
SASSANO Yes.
a
IRELAND Is the Little Elk Creek 3ubdivision part of that? -
_ � SASSANO Yes.
IRELAND Is the McCabe Ranch part of that Caucus7
SASSANO Yes.
� IRELAND And is the Lazy O Subdivision a part of that Caucus?
_.. i
,
� SASSANO Yes.
• I
� IRELANA In fact,that Caucus is established by the Home Rule Charter isn't it?
SASSANO Yes. �
IRELAND And in fact, that Caucus has a master p1an,doesn't it, or some— some
docwnent,a caucus planned document2 You refeaed to one that we adopted?
I �
� ��
39 MARCH 12,1997
� � i
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' , SASSANO Oh,okay. Yeah. It is--it is included as a neighborhood under the down '� .
valley plan,master plan. . .,
x�
IRELAND So iYs accepted as a neighborhood and we've—we've adopted a plan or i��•�-•
+-_a
document submitted by that Caucus;is that right7 ' •
;::�,
SASSANO Uh,the down valley plan is—is currently the ptan for that neighborhood
i area �'-
i-s,
ti�i�"_w��.
� CARVER Ellen,is the Snowmass Creek Road part of that Caucus?
� =-�-:� :
' SASSANO The road itself?
� i
CARVER No,the houses along side,along that road up that Valley?
J �,
• � SASSANO Yes they are. � ,
� CARVER Okay. And what is the square£ootages of houses in that neighborhood,of �
i that valley? ,'�
SASSANO Uh,I don't have them documented for you today. They are of record in I
. ; the building permit file. f
CARVER What's your subjective impression of them[inaudible]? I
SASSANO Um,well,um,let's see,I'm going to guess that they're not "�
�
j CARVER There are some lazger houses up there,right? If you don't know,that's
Sfine,I understand.
i
! SASSANO Yeah,I—I don't know specific house sizes along Snowmass Creek Road.
0
.f CARVER And the Snowmass/Capitol Creek Caucus actually wrote a letter on this
j matter indicating they had no objections to Mr.Hull's proposal?
�
y SASSANO ThaYs coaect.
• E
+ TIJITE Okay,no fiuther questions. iJh,Mike? Thank you Ellen. �.
VILLA I apologize,more papers.
HARPER Are you going to read them to us?
T[JITE Um,you know what Mike? Ellen,if you don't mind,-- , .
� `-
�
�
�
� 40 MARCH]2,1997
I
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' SASSANO Na. '" .
f -:
TUITE —if you could sit back there and if you'd sit in Ellen's seat so everyone ��-''3
can see you. ',.''.;�
4. .
VILLA Sure. "�� ,
;.:
WELLS See the whites of their eyes here. �:�.�?; �,�
1
��:,�:;;:.
i CARVER More stuff. �
! .4..�f.'l'... �
VILLA More stuff. I think I have enough copies. I hope I've got copies of
j everything.
, {� ELY Mike,what do you have there? 'r'� .
VILLA Um,what I have here is a brief that I prepared for detailing some
� of the articles in the—in the packet. y=
i
. ELY Okay,and do you,and on the back of this--
. i VILLA As well as--
� ELY --brief you have literature cited? Is that what—is that what you've got
there?
1y��
HARPER Mike,do I take the whole thing or do I pass them out—
ELY Pm just trying to keep track—
4, i
, y
° VILLA Yeah,there's literature cited in--
ELY So,so what is it that we've got for the record? I just want to make clear �
__ that I keep track of all the papers on that.
VILLA There's copies of the articles that I used in prepara6on of the brief. j .
' There's also—
�
, ELY Okay. � '
VILLA -- basically literature reviews that I completed for looking at �
wildlife impacts associated with activity. I �;
�,.� ..
f �
�
i
� 41 MARCH 12,1997 � , i'
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ELY Okay. Um,Mike,the uh—the uh articles that you've got Xeroxed in this ,;:��'i';'�
• file folder here are more nutnerous than the ar[icles that you've got cited at the end of the �-
brief thaY s on the top of this stuff so—
i�
VILLA Wait Oh. �� •�.��
ELY You cited uh, we've got four, five different sources and we've got
certainly more articles than that quantitative.
, VILLA Sure. Yeah,this was one thaYs-- [unintelligible]can I put them
� together after we--or do you want them now? ''� �
ELY No, thaYs okay. I'm sorry. I don't want to interrupt you. I just— I '
i thought I could make a quick notation for to keep track of the— :,
VILLA Well,it may take me a while to go through them. ;�
• , ELY Okay,thaYs fine. Sorry to interrupt.
i
VILLA [Unintelligible]. f�.
T[JITE So Mike, can you summarize this rather lazge document in about five '
;. minutes or less?
' HARPER Gee,I thought he was going to read it to us.
j VILLA Sure.
r
i
jTUITE Only in a monotone.
IRELAND Using the official witness monotone.
�
4 TUITE I have no emotion. Everything I say is fact
�.
� IRELAND With a logical command or two.
____.S
� VILLA Okay. Do you want me to state my name for the record?
• 6
; TUITE Please. Well,Mike.
VILLA Mike Villa,Pitkin County Wildlife Biologist. I've been with the
County since May of`96. Prior to that,I was with the Forest Service and I had extensive
� experience analyzing and assessing wildlife impacts associated with activities,primarily
I forest activities, recrea6on, 6mber and those acdvities associated with livestock and �: M
I operations. ,.
I ' 1I y'-
i 42 MARCH 12,1997
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Restricting the house size of the proposed Hull residence may,in fact,seem azbitrary but : ��
I believe the size restriction would benefit wildlife both in the long and short term. The �`•'a
parameter that I have been asked to look at house size may not be the correct parameter to '.'.':;
assess wildlife impacts. I think all of you guys are well aware of that with the all the , '
quesrions coming up-coming up about acGvity levels. Human activity and the use of �:
residence may be a more appropriate measure of wildlife impacts. To this end,fhere are
number of associations and interaction--interactions which much be assessed in order to ��`'.?.,. -
' equate house size with activity. I can tell you that house size is directly related to human ;,.:�`:.
activity levels which are the primary causes of wildlife impacts. In this brief, we'll
, explore the association of interactions necessary to understanding how the size of a
residence or structure may affect wildlife populations, including the following points: -
Thank you. House size in and of itself is not an adequate determinate of wildlife impacts
because direct effects associated with house size per se may be nominal when assessing
, � individual properties. There's a direct correlation between human activity and wildlife Y',
' impacts and when assessing wildlife impacts it is necessary to review both direct and
; indirect impacts as well as the cumulative impacts. T'he direct and indirect impacts,I'll
; give you a little background, a direct impact would be, as Rick had stated in his �:r
• testimony, a direct impact to the individual usually resulting in death or in movement �`i
. away. The activity is actually d'uectly affecting the individual animal. An indirect ;'�i
activity may be associated with habitat disturbance, something that would cause an �
. ! animal to leave an azea because the habitat that they would be in, for instance, is not
' there. And then,what I'm saying is those two and cumulatively,or those two interact and
i
� cumulative--cumulatively you have impacts both on individuais and on populations. An
increased house size results in increased indirect effects which aze a function of the
� increased human activity. And I want to state that I agree with Rick Thompson's �
� assessment that the effects of strictly house size on wildlife populations has not been
_ 1 adequately studied. Therefore,there's no empirical evidence that currentiy exits to allow
i the assertion that wildlife impacts aze associated solely with house size. However,there
i is ample empirical evidence which suggests human activity is a major factor of limiting
1 wildlife populations. In one of the papers in the packet,Holmes,et al.,found that human
` . activities can affect the geographic distribution, dispersion pattems, habitat use,
ufecundity,which is the total number of offspring that an individual may have,survival
! and activity and energy budgets of wildlife populations. One of the things, um,
t particuIazly in that last point,the point was made that elk and deer can be seen feeding in
� direct pmximity to houses in the winter[ime and one of the reasons that that exists,it's
E not a function of the house being there or the wildlife wanting to be neaz the house,it's
�
! more of a function of this necessity to decrease their energy demands in the winter. And ;
so they're there because they have to be there is basically what-- '
HARPER Where I grow roses,they really like roses.
VILLA Oh,they love roses. Dogwoods,red dogwoods. I concur that the `. `
building envelope identified by Randy Cote and Dr.Dan Baharav is the least impactive . .
on the building site. The area is mapped as a production area and was subject to 38.SE � '
43 MARCH 12,1997
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which stated the prohibition of development in an elk production area. Chapter 3 is -
another.... It's the one in your packet with the elk on it. I think I—anyway,I'll just � �>
read out of there what--what it had stated,but Chapter 3 of the Colorado Division of J �'�
Wildlife book en6tled"Managing Forested Lands for Wildlife"states,"because elk are •',:�'
sensitive to harassment from people,dogs and predators during the parturition period or '.
calving period, traditional calving areas that can be identified should be afforded
ma�cimum protection, no disturbance." It gces on to state,"it is important that elk be
relatively free from human disturbance. This is particularly true during parturition in—in y�`.'�. �
the winter. Vehicles and logging are the most serious sources of disturbance in forested ;::,�:�`�.
lands," and I just included a little more informa6on. One of the ways that impacts
associated with activity are measured is basically a concept called habitat effectiveness ,
which looks at the number of miles of primary,secondary inturtiary roads with respect to ,
the number of open acres. And this is a well-documented concept that the 1996 forest
land management plan for Arapahoe,Roosevelt forest has used this in their—in their '
� forest managemenf plan. A number of the models that exist for looking at habitat Y'
jeffectiveness, hab cap is the newest, habitat capability is the newest one that uses the
same concepts. Kevin Wright in the Morgan testimony stated with regazd to the house
size it all revolved azound how the structure is built and how much activity there will be �:r
r.
! associated with the structure. And then Tom Cazdamone corroborated that and he stated
� that while there is no empirical evidence to suggest house size affects wildlife �'��
' popularions,he certainly cannot agree--disagree with Kevin Wright's testimony in the
' ' Morgan case. And Cazdamone also stated that there aze many factors to consider when �.
, evaluating wildlife impacts such as disturbance during construction, human activity,
lighting, and removal of vegetation. At this point, we've been primarily discussing
disturbance effects to elk. However,many varieties of wildlife species e�ibit responses
to disturbance. The response of many species has been well studied. There aze many—
� there are a number of responses that are typically shown by vertebrate species. The table
� below shows a typical physiological response by vertebrates. And these are just the
1 pazameters that have been studied and I think there are about 33 studies that I didn't
� include in—in this. I reviewed probably 60 to 70 documents,but these aze just general
� observations or general chazacteristics that vertebrates show. Increases in behavioral
� activity. They may move away from a disturbance. Their heart rate goes up. They've
done a number of studies where they actually look at adrenai corticoid levels,the amount
� of adrenaline that is produced and the effects that it has on wildlife. The metabolism
� increases. Blood sugars increase. IYs basically--
E
�: IRELAND The number of cameramen they kick in the sideline.
:
VILLA Exactly. There's also some parameters that decrease. Blood flow �
to the gut motility or movement in the stomach,digestive secretions and blood flow to the
skin which is why you get clammy and nervous. As I've shown,human activity is
definitely a determinate for impact to wildlife species. Dr.Rick Knight,in his book
entifled"Wildlife and Recreationists Coexistent Through Management and Research," �� `'
which is another. I've included Chapter 5 in the packet. Basically,it lists six �
characteristics that determine wildlife impacts. They may be intui6ve but to help you � '
44 MARCH l2,1997
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I've included them in this brief. The type of activity,the behavior of a person or object ;' -" .
doing the activity. A persott walking as opposed to a person running. They have %�:,. .:,
significantly dit�'erent impacts. The predictability of the activity,the frequency and *�
magnitude of the activity,the Yiming of the activity and the location of the acrivity with •;.„',�•�•
respect to the individual,deer,elk or other wildtife. I betieve,as does Rick Thompson, " •
tl�at the attributes listed above with respect to a residence aze too variable for wildlife to �;��:�,, .
elicit a habituation response and again that habituation response is just becoming
accustomed to the activity. This is to say chat there is no way for animal to habituate to "`9'::�;: '`
activities when there are such vaziability in the way activities are exhibited. Most studies •
•��:ri�:t°~�.
have focused on witdlife species during the breeding season or the breeding portion of
their life histories and disturbance during the breeding season may an individuaPs tk':'^ .
productivity. Disturbance outside the individual's breeding season may affect the ��`. ''
individuaPs energy balance. We talked about the winter scenazio. Wildlife may respond `�
to disturbance during the breeding season by abandoning their nests or young,leading to ��, `•
' total reproductive fai[ure. Humans aIso have the ability to alter parental attentiveness.
And,again,that came out of Night[unintelligible]95,increasing the risk of young to „
external stresses such as cow purgation or purgation by beazs,for example. Also,if they �
azen't garnering enough nouristunent,if the—if the cow is miiking,that may be another ;��
external sUess tl�at limits the ability for that animal to survive. When studying wildlife
population dynamics,it is important to look at the vaziables which have direct '�i
- implications on the popalation that you are studying. This is to say that is vitally �1�
important to study the direct and indirect impacts and the cumulative impacts of the �
activities that aze being considered. It is imperative to address these impacts and seek
ways to avoid,minimize and mitigate,if possible. Rick proposed the hypothesis that
states in Pitkin County homes,size actually appears to be inversely related to wildlife
impacts,i.e.,lazger homes result in less impact to wildlife resource. I would like to
. propose an alternative hypothesis which states in Pitkin County,directly and indirectly
relate to wildlife impact due to increased human activity associated with maintenance
; needs of a large home. In the phone book,for example,I--I just did a quick little study,
� I looked up the landscape--landscape contractors,um,and there are 55 of them listed in '
Yellow Pages. Then I also looked up the number of property management companies,
and again,this was just a quick--a quick look through the phone book,there were 62
property management companies listed with a lazge percentage of those offering a full
service maintenance plan. Well,I didn't know what a full-service maintenance plan �?.
� entailed,so I called,I called one of them,and what that involves is house checks,hot ,�
� water and heati�g checks,electrecity checks,vehicle,they would go and start the vehicles, ;j
'; their hot tub service,grocery and shop--grocery shopping,general maintenance and �
housekeeping. And they also had some other services that would be provided that
wouldn't necessarily in that futl service plan. As you can see,there's a potential for a •
large amount of activity associated with the maintenance of a large home that may or may
not be associated with the primary residence of the home. And an important note is the
services are provided whether or not there's someone currently living in the house.
In summary,a number of interactions and relationships exist between wildlife and their ; -
native habitats. The simplification of home size,although not estabiished as an adequate �A�--
�' �
45 MARCH 12,1997
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parameter to address wildlife impacts,has serendipitously resulted in a frame of reference : .�
by which wildlife impacts can be assessed. There's true activity associated with '!�
construction,maintenance of a lazge home. This is corroborated looking at--looking r�•�.�•
through the Yellow Pages. Direct effects to habitats occur as more and more areas are ' •
c ..
developed and more habitat is degraded. Indirect hab--impacts result from the activities �, ,
associated with the developments and cumulatively impact wildlife populations at their
base,i.e.,population dynamics which aze birth,death,emigration,immigration. Beazings -
199Q it's another paper in your packet,was a landmazk paper entitled"The Wholly ��;�V':
';°�- •.
Semitic Principle,"stated that everything is tied to everything else. But I think it is
extremely important to look at every individual proposal as it relates to the wildlife
resource. And further,it is important to then look at the regional scale to assess _ "
icumulative impacts on other development and wildlife populafions. In short,when we •
fail to look at the individual,we then lack the ability to look at the cumulative. And I'll -
� entertain any questions that you might have. �.
, 1 TUITE Shellie.
! �
HARPER Mike,you just commented that everything is tied to everything else.
Could you expand on that as faz as the trail and the unpact that people on the trail have on f�
what might happen in that area?
- : �
VILLA Ah yeah,that's an interesting question. I talked to Randy about
that trail. I—I talked to him,actually,yesterday,in fact. Just I wanted to get his gauge
on the amount of use that goes on and primarily during the calving season,that azea is at
a relatively high elevation and there are not a whole lot of people using that trail during
calving season,but recreational trails definitely have an impact on wildlife species.
� We're focusing on elk,but there is--I think one of the literatures cite--literature reviews
� 1 I did looks at,and there's 69 publications that deal with recreational trails or the effects of
� roads in those types of lineaz disturbances through the landscape.
� FARRIS And Randy said-- '
� VILLA I'm sorry. �
� FARRIS That--
• t �
1 VILLA Randy said that there was relatively little use during the calving �:
season so that the impacts associated with that trail during calving are probably not that-- -
that great.
FARRIS So there's been no discussion or—or attempt to close that trail during the
calving season since it goes through a lot of what has been mapped as an elk production
area? ?, ,_
1 '-
�
; 46 MARCH 12,1997 `i :
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, VILLA I think the weather has closed it but there is no formal regutation �;��•���'���`
on the trail.
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FARRIS IYs just too muddy? ' �3
.�'� '�:�'
VILLA Muddy and snow. There's pmbably too much snow. :c .. .��
;'<.
T[JITE Further questions of Mike? �"�:`
:�:..;'
9;``;`•_ ""
CARVER I have a few. The proposed building envelope site,is that in elk calving ;�:;:,�,.K`�
habitat itself or not?
�,,_; �_
�:,•-�c -
� VILLA Uh,it is not. As neaz as I can tell from the discussions with Randy,
� �o. � ��
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CARVER Um,I have to admit to being more than a little perplexed by yaur study ':'
and conclusions so I'm going to ask about some-- � °
VILLA Sure. �;$,ia.
CARVER —of the components of it. Early on,you say that you agree with Rick �
Thompson's assessments that the effect of house size on wildlife population has not been �
- adequately studied. I remember Rick's summary. He said there are no studies correlating �
i the two,one way or the other;is that correct?
,
1
; VILLA ThaYs correct.
CARVER So,there is—it has not been studied period,right?
VILLA Coaect. `
3
CARVER Okay. Um,you say,therefore,no empirical evidence[inaudible]no
empirical evidence currently exists that allows the assertion that wildlife impacts are
associated solely with house size;is that your opinion? �
VILLA That is my opinion. �
CARVER And that's unequivocal,okay,right? �
. VILLA Right,correct. Nothing out there to correct me. �
HARPER I can't hear you. k `
�
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� _
I.
47 MARCH 12,1997
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VILLA There is nothing out there that currently exists looking at strictly at �p;.�z4.;;
' . house size with respect to wildlife impacts,there is no research detailing that specific ' `�
study. t?- -0;, .
'•`�
CARVER And although you prepared this document,you don't purpoR this to be a :ry',.'.'�•
wildlife study correlating those two factors,do you? , �.
�ti t,
�:.
VILLA No.
.:f.�.•.`;:: .•,
i CARVER Um,in reference to your discussion of Tom Cazdamone,what—what is -� ".
;>:,.r`.�- •
j his background and who is he? k ^
� � •;
i VILLA Tom is with ACES. He is an environmental coordinator with
i Aspen Center for Environmental Studies. � ``
�- �
j FARRIS Director. �",
. j ;'
VILLA Director. �'
�'�x
FARRIS He considers himself a naturalist,by definition. He is a nativalist by `F
definition. ��
. ; VILLA Yes.
�`
I CARVER And your understanding is that he also agrees that no empirical evidence �
; would suggest that house size affects wildlife population?
VILLA ThaYs cocrect,well stated—
IRELAND Well,wait a minute. Proving is one thing and suggesting is aoother thing.
,�.`.
i TUITE God,I feel like I should heaz an objection from somebody.
+:
j FARRIS I object. �>
i `i
� IRELAND Well,the record--
�
CARVER --can say whatever he wants but--
, TUIT'E And that's a good rule. '
IRELAND I'd like to reflect that Mike's tesrimony is not to suggest because his � `
presentation suggests that A is correlating to B and B is proven to have an effect on C and
therefore he's concluding A has an effect on something. So that is a suggestion. That
doesn't amount to proof that A has an[inaudible]correlation or that some other,that all , , �
,.
: �1 =
qg MARCH 12,1997
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. other factors that might be influencing B have not been eliminated. He is making the �::.,�:'��G'�
suggestion that A influences B,isn't that right? '� ''= .
-1�.
VILLA That's correct. J- '�.
'`'�''.;'.
CARVER Mike,you're making that suggestion,yourself,personally7 ' ��'�
,L .
VILLA Yes,the suggestion,yes,that house size is correlated through—to,
correlated to activiries which has been well researched and the activity is what has the .�;�:�:''�'.'
impact. =_
,.::.
I *
I
CARVER All right,now,Mr.Ireland was jumping over both the question I was
actually asking which was what Mc Cardamone had actually said. I was referencing `
page 2 of yow document where you said Cazd—Tom Cardamone has stated that no �
` empirical evidence would suggest that house size affects wildlife populations and that �
i was his opinion,as you understand it,correct? +
' i VILLA Right,yes,that was. ' r
CARVER Um,then he went on according to your paper to say he certainly cannot �
• disagree with Kevin Wright's testimony in the Morgan case,okay? Now,Kevin Wright's ��
testimony in the Morgan was exactly the same,wasn't it,that he doesn't know of any
- � correlation between these two factors? �
VILLA Kevin Wright? Um,I was quoting verbatim out of this document
Wright explained that it does not make any difference from a wildlife standpoint. Wright
I said with regard to house size issue,it all revolves azound how the structure is built and
� how much activity there will be with that struchue. He recommended that the home be of
- ! low profile and that the home site be tucked in the natural vegetation used to screen the
i structure.
F
� CARVER So his mitigarion suggestion had nothing to do with house size;is that a
{ correct summary?
Y
5
� VILLA Yes. It had to do with activity. It had nothing to--
�
, � CARVER And they—and perhaps screening or the house height or other issues like
� that?
,
VILLA The mitigation was--was associated with--with the activity that •
the--at least that's the way I read it.
CARVER Okay. So we have Rick Thompson,whose testimony was here,we have
Tom Cazdamone whom you've summarized saying he doesn't see any correlation
between house size,uh,and wildlife impact. He in turn references Kevin Wright's , -
� ��-
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49 MARCH 12,1997
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statements who also concurs that as a separate issue,house size isn't the issue with .:�`'�'4:i?
respect to wildlife;coaect? -;� `:
VILLA Correct '+•1� j�.� �
�_Y..'...�._
CARVER That other mitigative approaches shouid be taken,according to his .`� .,.��.'
Yestimony,to deal with wildlife impacts;is that conect? j:`; ,• i
i;:
VILLA Those mitigations deal with the activity. �;��;:3;�: ','
1.::.r'??"~�'.
CARVER Okay. Now then,then you go on to say on page 3 of your,um,brief,I �
4 believe,as does Rick Thompson,Yhe attributes listed above with respect to a residence are � �rt
!��< .;;:: -
too vaziable for wiidlife to enlist that situation response. What that means,as I +�� '
� understand i g g ` '
t,is that if there is a residence there,that's oin to have an effect on elk �"`
calving and elk catving would otherwise have been going on in that area? Am I reading �`'� ''
� j that correctly? F�,
-f ��
� .
VILLA Uh,what I meant--what I should have stated in here is ihe �'
li;.;. .
ariributes,the type of activity,all of the ac6vi6es—Rick had stated in his testimony was f�
that there are too variable for there to be any habituation.
�'�
- CARVER And the aciivities we're talking about aze associated with the fact that
f
there is a house there and residence there--
� VILLA Right,and people going up and down the road,the whole--atl the '
activities associated with the house in that habitat.
i -
. # CAIZVER And we know that a house in that habitat has some impacts and that's
what this is,righi?
(
� VILLA Right '
�
- � HARPER For any house.
� CARVER An house,ri t. Now,what we're �y
' Y Sf► trying to focus on here is the separate
� variable of house size and whether that variable makes an effect any of those impacts;
� isn't that right? j
�
. VILLA Yes.
CARVER Okay. 5o if we can find ourselves in a scientific sense to that variable,
um,as you indicate,Rick pmposed a hypothesis that there may be a negative correlation.
He didn't testify one way or the other that thaYs necessarily hue. He said there is some
practical reasons why it might be true;is that right? �`
a � .
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50 MARCH 12,1997 �''
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� V ILLA Yes. �
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CARVER Now,are you doing anything differently than saying,you know,the foot "-"'�
site might be true as we117 `�. `
:,'
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VILLA No,that's--thaYs what I'm doing is proposing an alternative to his
hYPothesis. �'',,;�.:"
�::-_.. :
CARVER Which he actually acknowledged in his letter,diddt he? There wuld be a ,;:>:r.�`•
correlation,there could be a negative conelation7
IVILLA [Inaudible]did that. �
� ..
CARVER Would you agree with that,that there could be either a positive or a ' `"
� negative correlation between house size and wildlife impacts? '� .
�
, � I VILLA I do. Um,I could probably[inaudible].
:4.�
nE.
CARVER No,I'm not trying to catch you[inaudible]. h
VILLA Okay,I could probably go into iG There aze some—it is well
. established there are some species that deai with or that aze accustomed or able to
proliferate in an azeas that have high—high activity associated with it. A good example
is the English sparrow in New York City,but there ue also those species that need
� solitude so because of the habitat or the ecology of each individual species,there may be
ibenefits or dehiments to any one. -
. � CARVER And what you pointed out here with all your studies that you've attached
� is that with respect to elk calving,in particulaz,there's a direct correlation between
human activities and their comfort level and pm-creative abilities;right?
VILLA Correct.
!
__ICARVER Okay,uh,but with respect to the specific issue of whether house size has ty
� any effect on that particular activity,there's no direct correlation that you're aware of;is ;
ithat correct? �
� VILLA Correct. ��
� .
CARVER Um,and as you point out here,there's the potential for a lazge amount of
activity associated with the maintenance of a large home that may or may not be
associated with the primary residence of the home. That potential would be true for a
smaller home too,would it not?
f.
, .
VILLA Yes,tha['s coaect. � �
, .
6
51 MARCH l2,1997 j
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CARVER And you havedt studied whether there's a greater or lesser potential for a " ��',�
lazger home than a smaller home;is that true? "� �
;• :':�
VILLA No,I have not. -5 •.'
CARVER Okay. And with respect to tt�is uh review you did of contractors,all
you're saying is,as I understand it,is that if you contract for these services,when those ;:`�',: ''
services take place,that would constitute a kind of acdvity which could have an impact ���.".
ion wildlife in the area,correct?
VILLA Coaect.
� �
� CARVER Is there any reason to believe that if a person builds a 3,500 square foot f
.,,
• i residence up there as opposed to a 10,000 foot residence,that the level of those kinds of '
maintenance activities would be different from one from the other? `
I VILLA I don't know. �
' CARVER I don't think I've got any further questions. ��
' ! TUITE Joe?
WELLS Just a couple more. Uh,Mike,did I heaz you correcfly to state that you
i agree that the Division of Wildlife maps would be used as a red flag to undeitake a site -
specific study of the azea as opposed to being treated as rigorous boundaries that are
finite7
VILLA Yes. ;
�
) WELLS Um,have you had a chance to visit the site;I'm not sure whether you've
� been up to the site or not?
— � VILLA The Hull site?
. � WELLS Yes.
� �
{. VILLA I have not been to the Hull site but I have been in all of the Marilyn ,
� Auffman—Pm familiaz with the area,uh,but it was after the field season when I saw this
one for the very first time.
WELLS So,have you been up in the general azea during the calving season or--
�' `�" .
VILLA Yes,I have. '" -
,` .-
I
I52 MARCH 12,1997
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WELLS Um,I would--I guess I was a little intrigued about your comments about ,' e_.
the maintenance fuaction. How would you react to ihe notion that—that it would be '
?S� .�y
advantageous from the standpoint of impact on wildlife to have on-site caretakers as . .��
opposed to having people come to the site from off-site. Do you have any response to �'� :
that? `''•' .:�'
VILLA Uh,I think basically the impacts associated with ac6viry would be ��;�:�•'.,�,; -
based on the number of trips they intend to have and those things,and,you know,I have '' �
no way of assessing them,whether an on-siYe caretaker would have more or less impact �'`�'" '�
than different services coming in. ;�'�;�-''
� E-.:;^�:.
WELLS I don't have any other questions. t-�.."�` •
�:.. .
1. TUIT'E John7 �,�. .
' � � ELY Mike,yeah,a couple of questions,quick questions,Mike. Are the ��'�
� opinions that aze expressed in the articles that you've reproduced and handed out to the !-:.
Boazd,aze they widely accepted in the wildlife management profession? '�
;;�
VILLA Ah,yes,most of the--most of the articles cazne from referee y�
joumals. �
LAMONT Came from?
VTLLA Referee joumals.
' LAMONT Okay.
ELY Those referee jownals and the other publications from which the articles
are reproduced,are they widely used and refened to by wiidlife management
professionals?
VILLA Uh,yes,and forest[unintelligible].
_ ___._: .
ELY Thanks. I�.
i
; TUITE Any other questions of Mike? Thank you Mike. �
FARRIS Thanks for all that material. � ,
I
VILLA Sure. Then,I'11 put them in-- �':
FARRIS No,I'm serious. IYs not easy to come by,that kind of information.
; HARPER And we keep[unintelligible]. f';� -
�4
i 53 MARCH 12,1997
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TUITE John,is there anyone else you care to call at this stage7 -
:;�;,; .;
ELY No. '�' - �'%
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TCTITE Okay,there being none,we had agreed at the last meeting that we would '-� • �
have some public comment trying to keep it limited,if there's a lot. I don't see a lot out �'f �`
there bui I'd ask that anyone that prefers to make a comment at this time,take the same ,,'�';;.::''.,�`
oath that we had administered to other witnesses,that they swear to Yell the hvth,the �:":`� '
whole truth,and nothing but the truth. �.=�:;,��:
�'.°.��
� McFLYNN I would so swear.
�;•_;.:�: .
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; TiJITE Thank you. And your name for the record? ��, .
�
� �� �
McFLYNN Let me move over here. � +
TUITE Please. r
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WELLS Excuse me Bill,are we sure the tape is okay with-- ,`p
" �
TUITE IYs a good question,Joe.
HARPER It's tuming,slow(y.
FARRTS And it says five point[unintelligible]six[unintelligible]. IYs 51.6 and I'm
� sure she'11 keep track of it just to remind her.
. �
� LAMONT Was that a diversion?
f
f TUTTE So,I just asked the same because you sit on the side so everyone can see
�� you.
1�
(�� McFLYNN Sit here?
!
' ! TUITE Yeah. Thank you.
F {
, � McFLYNN Whose chair am I taking7 Okay. Um,my name is Tim McFlynn and I F
have heard the entire hearing. I've been here four or five hours. ;
i
TUITE Days.
�
McFLYNN And I appear on behalf of the monks of St.BenedicYs Monastery. I also F ,
have taken the oath because in addition to being a lawyer,I want to put some materiai � ".
; ' -T�."•., .
iinto tiie record and before you that I think will be helpful to the process on the appeal. � ( �
i j;
� 54 MARCH 12,1997
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And I want to get right to the heart of the matter but just a moment on background. As ``-
• I'm sure the Board the knows,the monks at St.Benedict's,since]956,have been in the •s;,
upper Capitol Creek V alley and have been stewards of about 4,000 acres,some of which • .;��
is immediakely adjacent to the Hull property,which is before you today. I think the �� '�:;•
background presented two weeks ago by Joe Wells on behalf of the appellant was precise � •
and was accurate as faz as it went What I'd like to do is go farther. Uh,and I think the �. � ,
most,perhaps the most significant thing that Ivan Hull said in his testimony was today
when he,in attempting to downplay any importance or significance tu the letter to the r�:'' �
Board from Bob Child,an adjacent owner and a former member of the Commission,said �: � .
..:_r: �
well,he,Ivan Hull,wasn't even in this country at the time of the events back in 1980
when he bought the property and he couldn't possibly have talked to Bob Child or made
representations,which should be binding upon him. �
What I'm going to requesi on behalf of the Monastery,and I'Il get to that point first so
you can see where I'm going,is that this matter be tabled rather than decided on in order �;
to allow four things. First,further staff analysis to the extent that it may be warnanted of
, , the material that Pm going to present to you today;secondly,to ti�e extent it may be '
warranted a site visit,when weather permits,by the Boazd of County Commissioners, ,;�
c
because this is an application which,if you look at the map,is going to set the stage for Y'•
three or four properties accessed by that Mawin easement,including Adelson and ���
Jolutson;third,that there be public notice and an opportunity for a public heazing so that A
all adjacent landowners,including ihe United 5tates Forest Service,have an opportunity
to have input on the proceedings;and lastly,that there be consideration as to whether '
" there should be a referral to other agencies,including the Open Space and Tnils Board �
because of the Hay Pazk Trail and the fact that this access road and the Hay Pazk Trail are
contiguous or on one in the same path for,according to Mr.Hull,a total of seven or eight
hundred feet. That's a--that's a vital trail as members of—I know the Planning Staff
know. Alternatively,if you don't want to continue the matter and want to decide the
� matter,what I'm going to present here today I think is an independent and adequate basis �,
for denying the appeal having nothing to do with wildlife impacts,which I'm not going to �.;
address at all. So what I'm really here to do is to try to augment the record and as a
lawyer,maybe I see every[hing in--through the lens of a lawyer,but it seems to me that �1
the record that is being created here by the applicant and by the County is a record that
may end up,once again,in litigation as this applicant was for five years on the East
Sopris Creek Trail case. The reasons for those four requests are primarily that the j
memory of the Board is limited,and of the Staff,is limited to the term of office that you 'j
each have had and to the amount of research that has been done,because when an �
application comes in,there is no automatic way to go back and figure out what happened
back when this subdivision was approved in 1980 by a court proceeding,and that's what •
I've tried to do. And I'm going to pass some things out I think that institutional memory
� gap of aimost 20 yeazs is exacerbated because this is a proceeding which I think the
County Attomey wisely and properly determined had to be done by administrative review �
rather than the normal 1041 public notice,public hearing process because of the fanguage *;, °
of the stipulation. But because there was no public norice up until this minute,the "��
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adjacent landowners,including the Forest Service,have had no pu6lic input. '
e.
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55 MARCH 12,1997 :,.'£
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And let me get to the insfitutional memory point. My suggestion would be that the �'
conditions of subdivision approvai in 1480 furnish an independent and adequate factuat '=,
basis for denying the applicanYs request in the context of this appeal. And IeYs be cleaz ::�'�
on the request. When I read the Staff decision by Tim Maltoy,it sounded like ii was a .::'
i 0,000 foot maximum building that the applicants sought and the Staff recommendation . '
was 3,500 square feet,inctuding out buildings,accessory buildings,agriculYural
buildings. When Mr.Hull testified two weeks ago,he made it quite cleaz that what he
wants is what this wning permits,which is 15,000 square feet for a house,not including
agricultural or zccessory buildings. And so,what is--what were the conditions of Yhe
� subdivision appmvat? And this is going to just take a few minutes to go through. iJh,I
I think those conditions fully support,independent of wildlife,the recommendarion by Tim -
� Malloy,which has been appealed to the Board and more,and more.
k '
� .' j HA.RPER Can I interrupt please? Was Tim Malloy making the recommendarion ia :
� � 1980? .
i
McFLYNN No,he was the Community Development Director who,before you joined
. the Boazd,Shellie,made a decision--
, ; HARPER I know who he is. I was hying to—I—
' � McFLYNN He tnade a decision,which was,as I read the file,was the decision that
Mr.Hull has appea[ed from with the assistance of Mr.Wells.
I
. + HARPER I thought you were referring to the original subdivision—
. f �
� McFLYNN No.
" i HARPER Okay. That's why I was lost. ;
�
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.� T[JITE He was the senior planner then that was involved in the-- �
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� McFLYNN So he did the adminisfrative deteratina6on— �
� � . LAMONT Based upon the 1980— �
1
, HARPER Okay,I was on the subdivision. j
i
McFLYNN ThaYs right. Exactly. Okay,so what--what do we have that tells us what •;
that subdivision approval,uh,was for. Uh,first,uh,I know you've received in--in kind
of drips and drabs letters from members of the County Commission at the time of that
subdivision approvai,but because you may not all have gotten all of them,I have them all
here and T'm going to pass them out and I'm going to try to be,as I say,as efficienY as I �'
can passing out a number of things. And this really,that goes to Mr.Tuite's comment � :
I 56 MARCH 12,1997
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that proceedings that go this way make it difficult for the applicant and his representatives '�.;� .�;�
as well as for members of the Board to digest all of this material that you get during the :�,.;.�.�
hearing,which may be another reason to take a little more dme. You may have received -_,:'��•�•.
the following letters,but if you haven't,I'd like them to be in the record. From Michael " •
�. 4 ..
Kinsley,do you have one? IYs the second paragraph and I--I'm just going to highlight a �;<.:,,
few of these points. I mostly want to get these into ihe record. Michael Kinsley has a
letter dated March 4,1996—1997 to Bill Tuite. Joe Edwazds,a member of the '��� �
Commission,has a letter dated March 12,today,1997 addressed to the Pitkin County q`�`r. ,
Board of County Commissioners. And Bob Child-- �``'�'� �
.�;:':_�
ELY Is this a different letter than the Bob Child letter we've already seen,Tim? �: "
I .�' ,
McFLYNN You already have that `;�: �'•
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� - TUITE We have one that was written in there— '''
j E: .
! McFLI'NN February 7,right,you have the Febmary 7letter? ��'
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HARPER This is a Joe Edwards.
, McFLYNN Uh,this is--I've already passed that Joe Edwazds. Your question�s,is =�:
this a different letter from Bob Child7
I HARPER Bob Child.
i
�
McFLYNN WhaYs the date of it? February 7? � '
( HARPER Yeah. �
� .t
� McFLYNN Right. It's the same letter. Okay,so I won't pass that out Now, � ,
basically,the Commissioners then in office had an attomey by the name of Sandra-- ?
Sandra Stellar and the letter that obviously goes into greatest detail is Bob Child's letter,
which you've already read. But we all know that there was some attempt by the Boazd, � ``
which Mr.Kinsley,Mr.Edwards,and Mr.Ciuld now allude to in their letters and perhaps �
regret,to deal with the financial exigencies of the Maurin family and the Maurin Estate. ��
And the context,basically,was that the Maurin Estate had petitioned to get their land
subdivided by court fiat,by court decree,and the County,under its subdivision '��
_ regulations opposed that,filed formal opposition to that,and ultimately settled in the •
form of a stipulation which you've seen and which is why Mr.Ely I think properly says
this is an administrative 1041 process,I think thaYs what you called it Is that right,
John,something like that? ' �
�i,
ELY [inaudible]. ,
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57 MARCH l2,1997 '�':� `.
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McFLYNN Now,I submit that when you take these three letters and the documents - "
which are recorded against these three properties,we would not be here if the ':t�4= '•>
Commission consisting of Messrs.Kinsley,Edwards and Child were still in office. And �'�
the reason is obvious. It was very clear,and it was represented—I'm going to read you �-;���' �
from minutes in a minute,what was represented to the Commissioners when they `• �
instructed their attorney to enter into that stipulation. Then I'm going to show you the 3'=` •�•
court order,which you don't have,and what was attached to the court order,which is a .
covenan[running with the land restricting these propeRies to cabins without electric �q I.`•;'�. �
utilities. So that's why I say what Pm addressing is not wildlife,but rather should not the ',.:;',Y.�`:_
appticant adhere to the conditions of approval for their subdivision,just like the County,
on advice of your lawyer,is adhering to the conditions of approval imposed on the sk �
� County. The lawyer,your lawyer is saying you must do this by an administrative �' ,
7;...
roceedip with no ublic notice and no ublic hearin What we're sa in is ou're '��"'
P 8 P P S• Y b Y �.•t ::
� adhering to the stipulation the applicant has forgotten the stipulation. And when I read �
; s'is::�
� you the minutes and show you these documents I think you'll see that Mr.Child - ��. �
; obviously was not only on ihe Commission,but he was an adjacent landowner. And the '�:� •
. I only part of this that I—of his letter that I would like to emphasize is,yes,is— �
1 '1�� �
k,r
LAMONT Do you have an extra copy? �: �; �
.,��r
McFLYNN Yes I do. I put them on the floor because I thought you had it. �
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:�i
LAMONT T didn't
' McFLI'NI3 Here you go. Okay,Mr.Child says in his letter that representations of the ;�;
lot owners given to the Board have consistenUy been that development was to be of small
jscale in keeping with the rus6c lifestyle. T4►at was the cleaz intent and it was--and it was
only with the expression of that intent ihat the Boazd decided to move ahead with the
i approval of the subdivision rather than challenge the finding of the court. 7'he prohibition
� i of utilities extensions,uh,and into the next sentence,suggests a commitment to a `
� lifestyle that did not include 10,000 re:at 15,000,square foot houses and cazetaker units. ;'
I The term single family home site meant precisely that. And then he goes into some of the �
other issues about house size and wildlife,which I'm not addressing. And then he goes
` in,importantly,to the County's plan for the area. And quotes from that plan,the land use ' x !
plan for this cap--upper Capitol Creek Valley wherein he quotes that the plan l,
recommends"the use of land falling within the agricultural category,which is this land, �i
should be restricted to the practice of agriculture with limited recreational and residential }
use permitted subject to review to the extent that it does not conflict with the primary �`
land use." Now,and he concludes with an editorial,the application is totally lacking in �, � �
merit,conflicts with past approvais,thaYs my point,conflicts with adopted land use
policy,including the neighborhood land use plan,and is out of character with existing
.�. .
development in the Capitol Creek Valley.
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I�1ext,I want to pass out my client's letter,um,which you may or may not have received. �`"`-�����'�'�`>"
This was the Abbot of St.Benedict's Monastery at the time the County approved this, "� �'
Michael Advil. ~x•+�. •`:,
Y• �,
FARRIS We have it and I have read it— ':'�r`.',-,'.
. :„
McFLYNN You have that? Everyone have that? Okay. I'm sorry. Please don't mind Y�`: �'•
me if I leave you out of this process. Do want Mr.Child's letter7 Uh,Michael Advil,
who was Abbot at the time,with Hull,Adelson and Johnson pwchased their properties y�°;%. -
from Marie Maurin in the Capitol Creek Valley,he says the buyers had agreed to limit :;..;;,;..:":;
their building to small cabins and to forego having etectrical power being brought to their �
land. And he states thai the increase in Mr.HulPs home size otential to 10,000 s uare *zk'��^
P 9 ,�,:;: :��
feet re: 15,000 is"clearly against the spirit of the agreement and totally against the spirit ?:�1 .
of the land. The owner should be held to the original agreement." Now,that's the first '� `;
point What do the Conuniss--what is the Commissioners'recollection? The second ;;�',` "
' • point is what do the minutes of the Commissioners'meetings say about what the '�'."r
representations were? The minutes of the meeting of July 10,1978 of this Boazd include `�'�
the following discussion of this subdivision First,if yoa read the whole set of minutes,I `�
i won't take the time to do this,basically-- �':xr
� .
� T[TITE I need reading glasses. � �';�
t
McFLYNN Okay. Let me just highlight it and iYs in the record and that's why I think :i
you all should take more rime. First,what they were really deating with was whether
they shoutd amend the Code to exempt from subdivision regulations situations that Yhe �
_ Maurins were in,a family with a lot of land. Mr.Maurin had died. There were huge
estate taxes and they were facing this terrible quandary of not being able to pay the taxes. �
_ And the Board said no,we can't consider that financial exigency and amend the Code.
We shouldn't amend the Code but we'11 authorize our County Attorney to negotiate a
settlement. And here's what it says about that. ,
.;
"The tast approach considered by the P&Z would be to withdraw Pitkin County's claim
in the lirigation,"this is the Maurin estate litigation,"and allow the court to order a
� subdivision which would be acceptable to the County. This would involve a two lot �-
isubdivision of 160 acres each for one single family home for seasonal use only with no :i
, utilities or roadways. The land would be covenanted to that extent"
Further,in the same minutes,uh,talking in the bottom of page 2 of these minutes, �
Michael Kinsley,who wrote you a letter today,moved to authorize the County Attorney �
to enter into negotiations with the representatives of the Maurin Estate. And at the '
bottom,he added:
The only interest the County has in resolving this situarion is in the manner described is
that any development that occurs on the sites be similaz to that on the adjacent HufSnan �_
ProPerty," '',
� ��
e �
59 MARCH 12,1997
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which had a cabin. Sandy Stellaz,your County Attomey,asked if she could enter into a +•� �`.
settlement with the Maurins. Kinsley replied she could. Stellar said she would draft a ,�;.�'�
stipulation outlining the development to the one single family home on each 160 acre lot ?��:'.�:,"'
with no road improvements and no electrical service and these be seasonal homes for ;c ., .'.'
recreational purposes only with no additional road cuts into the County road. Smith,who
was I believe--
.:�:..,;. •.-
LAMONT The Planning Director. :#:.�.':,:
i; �
McFLYNN —the Planning Director,okay,requested that the land be deed restricted ���^ ��
a:,.,;��, .
� against further development. Kinsley added that there will be no County services
� provided to these sites,including snow plowing and school bus—bussing. That motion �".` �
passed. Now the next thing that happened was that you've seen the stipulation,although '�` `'
�_,.
I didn't see in your packet the order authorizing sale. And when Mr.Hull took his title .;: ��
� ' and Mr.Ely this morning or this aftemoon,handed what he thought,I believe,was the `
� deed to the Hull property from the Maurin Estate asking if it looked to be the deed,this ��
t. .;
moming I received from Pitkin County Tide the only deed,according to them,to Mr. ''��
Hull for this pazcel that he's before you on. I'm going to pass it out because at the end, h
iYs quite significant what it says. This is a deed,October 2,1980. In October 2,1980,at �'�
the end of the deed,it says in the exceptions,from Marie Maurin as the personai �
_ representative of the Estate of George Maurin,after describing the legal description,
except and subject to,and that,of course,is property taxes and other things,planning, �
zoning and other government rules and regulations and terms of a stipulation with Pitkin °
County recorded in Book 395 at page 738. ThaYs what it's subject to,when he took the
property. Well,lo and behold,that Book and page is not the stipulation. It's the order �
- authorizing the sale attached to which is a legal description of all three lots,attached to
which is a letter from Adelson as a covenant running with the land binding all three lots,
attached to which is the same legat description of all three lots.
,�S
ELY ThaYs in the packet already.
McFLYNN The order is?
I
: ELY The--and the-- �f
i �I McFLYNN I know the letter is but is it the exhibit?
HARPER Not the exhibit. '
. .
i
� ELY Well,I'm pretty sure--
��
McFLYNN See,I didn't see the exhibit. I went and got the exhibit`cause I wasn't � . `
sure that,until a few hours ago,that uh— , .
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ELY Weli,pass it out anyway so we can have it. -'.';�"�'�`�
McFLYNI3 Okay. 13ow,I think the significance of this is Mr.Hull's—Mr.Hull--I !" `',�
said the most important thing I fliink he said today was he was out of the country when all " � �
this happened. He couldn't have made these representations. The sequence was that the �' �:•�,
County Commission approved the settlement with the Maurin Estate,the clerk adopted
the stipulation and issued the order,which I've just passed out,in September of 1980.
Mr.Hull took title October 2 in 1980 subject to the documents of record against his
property,which included the letter which Adelson signed as a covenant running with the +`'`�`� ,
land of all properties described on Exhibit A to that covenant,which is of record,which �.�%,�.-�'
includes the whole property. Which is that essentially,if you read all of this,and then I'll
read you the last thing,which is um,I think perhaps the most teiling,he wasdt here. .
And that's probably true. He didn't know the extent to which the details of working out .
the deat were being done in his absence. But he took,subject to those details of working
out the deal,and the conditions of his appmval,I believe,are seasonal,cabin-size house, '
primitive road that can't be improved,and no electric urilities. ThaYs a covenant running �'�
� with the land until the lives and being of the then County Commission,which still has i,
members alive,all three of whom wrote letters in the last two weeks,plus 21 yeazs. The
last think I'd like to read to you is,the last thing I'd like to read to you I think is the most �`;c.
telling. You may recali that you were in litigation with Mr.Hull and Mr.Adelson for ��'
many,many years over whether though he got the Maurin easement as access to his lot, ��
whether he could,in fact,use East Sopris Creek Road as a public road,the County having '
. vacated it and that litigation involving this gentleman here,who was the lawyer op that ��
case. Jim Moran represented Mr.Light and Mr.McBride and John and probably Tim a
Whitsitt represented the County in that litigation. In that Litigation,here's what
; happened. I want to read you sometlung. The people who testified in that litigation were
4 the same people,Ivan Hull,Ed Adelson,et cetera,Joe Edwards,Bob Child,et cetera and
that was intended when the County agproved this subdivision and created these lots and
_ ; here's what it says. I'm reading from the findings and facts,conclusions of law and
judgment in a case called�delson and Hull v Aoard of Countv('ommiesioners the
Pitkin Countv,which Judge Peter Craven issued in that litigation which went ail the way
to the Colorado Supreme Court and was affirmed:
I `
' Finding 24: In 1980,Diane and Edward Adelson approached the BOCC for a subdivision j
appmval in connection with the subdivision split envisioned in the Maurin Estate •(
litiga6on mentioned above. Diane Adelson acted as spokesperson. The Adelsons did not ��
envision a standazd si�gle family dwelling. They explained to BOCC that they were in �
' the import business,that they made a buying trip every year lasting four to six months
and"therefore they would be in residence only four to six months per yeaz." They ` .
proposed to provide electricity by windmills or hydroelectric power and would even
agree to deed restrictions on the extensioa of conventional electric power to their
proposed tract.
Finding 25: She(Diane Adelson)represented to BOCC that plaintiff Hull of duo United s1 u
States and Australian citizenship,would use his tract during the summer months only ' "-_
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because he would only be here in the summer for possibly four to five months per year. kY,'�•��+'.
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• She also portrayed plaintiff Johnsons'use as limited to a cabin-type structure to be used / �:`.
only as a retreat. (,,_�i
''. ,;.,
Finding 27: At the time of their purchase,the Adelsons were living in a tent in a meadow ''.''
r''`' '�.
in Old Snowmass Road and speaking with Robert Child,then a County Commissioner f • .
acting on the subdivision approval litigation,the Adelsons expressed great excitement }�.�,•. �r
about using their tract to"go back to the land"as their chosen lifestyle. They were
enthusiastic about the isolation of their proposed tract with its limited access. They knew ':;::.;�:;�`.-�
it would be fun and exciGng to get back and forth to ttieir tract as Commissioner Joseph •�<`%' '
Edwards recalled. �-�",:;-�
I F
! HARPER They were young. E::,I• :: -
McFLYNN E�..
i �
' r'�.
IMr.Adelson actively pressed the County for approval of the plan and in one meeting said ` ''
i he had no prob(ems wifli access knowing that a snowmobile would be needed in winter. j,;.
For its part,BOCC thought the restrictive access would act partly to control development ''�
in a relatively remote part of the County. Yeaz azound use was not intended by BOCC. ,�+F
After BOCC explained that access would be tough over the Maurin route,the Adelsons ��.�
said they still wanted to buy their tract. BOCC intended that East Sopris Creek Road
access would not be used. The members of BOCC were together on this issue. In
" BOCC's view,these tracts were not suitable for conventional year azound homes.
Among the BOCC concerns were disturbance of wildlife an agricultural uses in this �
remote area of the County.
� Lastly,these were conclusions of law by the Judge in litigation between the parties to ttus
. ( aPP��
f IRELAND Conclusions of law.
I
� McFLYNN Conclusions of law. Findings of fact—I'm reading--I'm now reading--I
' wrote--I read findings of fact--
.. `>
- IRELAND Oh,okay. '�
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. McFLYNN --now I'm reading conclusions of law. And if you recall,the issue here �
was could Adelson,Hull and Johnson reopen East Sopris Creek Road as a public road so
they could access the lower portion of their land down near the creek bottom and the � ,
County took the position,no,it should be vacated. The County vacated it twice,got sued
twice,won in the Supreme Court,basically. Their vacarion was affirmed. Here's the �:
conclusion of law that I think is most relevant to what you're here for today.
�
, .
1 �
' 62 MARCH 12,1997 �
4
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• The court had to decide whether or not the Maurin easement,the easement that they now '��`- ,
have on the map as their only means of ingress and egress,was so unreasonable and {� -�;�
inadequate that they had to have a right to use the East Sopris Creek Road,basically. , ;�a
Here's what the court said: ,,•�. •'.�•
:c .. �
The plaintiffs,Adelson and Hull,conectly argue that not just any private access will due.
Obviously,it must be reasonable under the circumstances. Here it is reasonable under the
circumstances. To ascertain if iYs reasonable,one should look at the expectations of the "��;�-i.�':
parties when they purchased,the type of land involved and the uses to which the :#�`:;
plaintiffs'tracts may be devoted. Clearly,the plaintit�s,all of them,bought their tracts '� � .
with unconventional uses in mind. Mr.Adelson was fully apprised of that hardship of the S':'>
d`;:...,.,. .
Maurin access. He found it exciting. The Adelsons spent their first summer camping on �:..
the land using the Maurin access daily. Mrs.Adelson,their spokesperson,represented to �� .
� the BOCC that their use would be seasonal. The BOCC[and this is the key line],the �` ':
� BOCC granted the lot splits on the implied premised that there would not be normal yeaz `.';
� azound usage. Footnote. ,.
1 '�.;
�_
The footnote is: i.;:
'4�$.
,'i�
With the passage of the years,the attraction of non-mainstream.uses appears to have �
faded for the plaintiffs and the cold realities of the rigors of the Maurin access have made
themselves felt.
Continuing the conclusion of law: �
The neighboring area and the piaintiffs'tracts aze remote in the County. Ordinary usage,
ordinary usage would adversely affect the wildlife and change the remoteness of the area.
The plainfiffs intended to buy and did buy a relatively novel type of land with equally
� + novel access,hazd,seasonal and difficult. However,the access meshes with the original
� proposed use of the property and with the surrounding terrain and neighborhood. That is .ti?.
� why the Maurin access might be patently unsuitable for other lands,it is a reasonable
' access route to the plaintiffs'tracts.
, Now--YeS� ��,
� '�
HARPER Do you by any chance have the conditions of approval for the subdivision?
McFLYNN The conditions of approval for the subdivision are in the stipulation and in �
the court order. •
HARPER Because in the stipulation that he is having to honor,it just—it just refers
to telephone service and electricity. It dcesn't give us anything that they're bound by.
I'm looking for the conditions that they were bound by when the got this approval. It �_L,.
doesn'i address the house size. -, .
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63 MARCH 12,1997 �:,� ,
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McFLYNN Okay. Let--it does not,you're right,Shellie. It does not address the ,�' ': .
house size because back then they were just approving subdivision. They weren't saying :;�;{; .,s
anything about when,if ever,any iof owner coming in for development approval— 'v�,;-,�!.a
ri•� J
HARPER Did they all have conditions of approval for subdivision then? ' �
_,� ., .
McFLYNN Well,yes. There was a Code. ,,
ELY There would—then the conditions were expressed in the order and I'd g' ,`� +,
interject now,the,um,the language that Tim McFlynn is reading from in Yhe order '�''�'�" �
entered by Judge Craven was appealed and upheld in its entirety. That decision is found tk�=`
�•:.`;: _
at,for this record,that decision is found at 875 P.2d 1387. In fact,the reviewing court �:::;.
' refers to some of the same language that is employed by Judge Craven when it upheld the ��`•�: '
� trial courPs decision. The uh— rr+:`,
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� LAMONT The trial couR's decision to vacate the road, '-'
y,
i tif°".',; .
' ELY Yes. Right. The um--the conditions of approval that the—there was no ���
formal subdivision process. What there was was there was a stipulation that was entered � y�.
into between fhe County and the Estate,the Estate of Creorge Mavrin,and that stipulation , �.i
. then generated an order. It was an order of sale. And thaYs the language that you guys .t`
have been looking at for the last--
� HARPER Right i
� McFLYNN And the order—the order of sale,including the letter signed by Diane and
; Ed Adelson was signed—was exacted by the County,by your County Attomey,was
� j signed by Adelson as the representative of the owners of all three lots,and became a
! covenant running with the land on all three lots before Mr.Hull took tifle a few weeks
later. He took fitle October 2,1980. In the month of 5eptember of I9$0,the court issued ;,�
� its order. The County Attorney then,just to make sure,wrote and said,sign this
document because iYs goin$to be a restriction of record as a covenant running with the
� land on the entire three lot subdivision. She signed it and the reason that I brought it—I '
hring it up is that if you go over to the title company and ask what is the document �
refeaed in Mr.Hull's deed,it's this whole document I just passed out. �
HARPER Right,you just read. �
,f
� CARVER There will be some dispute about that. •
McFLYNN I'm sure there will.
HARPER —testimony on what Mr Hull agreed to. And—but what I'm holding,it- , '
let me just finish real quick— �', .
� -:.
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6q MARCH 12,1997 j� . ,
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• McFLYNN Yeah,okay. '_�.'��'Si:`
�� .
HARPER --and maybe you can answer my question better. What I'm holding is an �°:
agreemeni on tetephone service and electriciiy. ��3
,.�•
McFLXNN Right ,; �.
HARPER So thaYs what he knew he agreed to. If you wasn't here and the
conversation he--I can't,I have no proof that he agreed to a cabin. I do have proof that
the court held that if Adelsons were looking at an altemate lifestyle and whatnot,they ��::::
didn't need a good road. But Hull just tesiified earlier that he spent somewhere in ihe
neighborhood of$400,000 improving the road. So I'm not getting anything that tells me
that Hull always intended to have a cabin. Plus,this is 20 some years ago. I know that �
Hull was probably younger then and now he has a family. So his intentions for this land,
he doesn't have the good road,had to pay to buy a good road. I'm not--I'm--he's
, . � : evidently honoring what he said in here. So I'm not getting what your point is. �
►
' McFLYNN The point is,I guess iYs two-fold. First,you don't have in your Land Use
! Code a code section you can go look up and read about how do you handle situations
where a court creates a subdivision. You had a right in 1978 when the Maurin Fstate
" � litigation was going on,to oppose the subdivision as not complying with your Code and
you exercised that right. You filed opposition to the--to the proceeding in 1980 saying
� ' � the County has a set of regs on subdivision and we're opposing court subdivision of land
� ? in our County. Okay?
� HARPER Um hum. 1
�.
e
j ; McFLYNN Then based on representations,wlrich I read yon from the`78 minutes of �
� this body,specific representations of the applicant,let me finish-- �
i
; ; l
p � HARPER Um hum. But it wasn't the applicant. It was the Commissioners,if you �
� 1 read it, i
�. � j
j � McFLYNN The Commissioners are talking in the minutes about the applicant-- �
� HARPER Right. i
� E +
� McFLYNN —before Mr.Hull had any interest in one square foot of those three lots. !
In 1978,the applicant was the Maurin Estate. And it was the Maurin Estate that wanted �
the County to cave in and withdraw its opposition to the subdivision on condition the ; '
County got what it needed. And they--and they authorized the County Attomey to
negotiate what it needed. And it was based on representations of the applicant that it �
would allow the subdivision to be court ordered and those representations were seasonal !
cabin development without improving the access and without extending electric utilities.
What's the significance of ffiat today? .
{ _
1
I 65 MARCH 12,1997
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HARPER Well,okay,go ahead. I guess what it says in here-- r;''= '`�>
�'3
McFLYNN Let me just add one thing,let me add one thing,Shellie,that may be '`�°.�±�
• .>.;
helpfuL 'c .. .
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HARPER I'm real confused.
:9;.";:.
McFLYNN Let me add one thing that may be helpful. You may or may not know this, :-:�::;;��''
but your current code in three piaces says,any and alI representations made by an
k:�::�:
applicant during the land use review process or in a land use application shall �;:`�';:- .
automatically become a condiUon of approval. ThaYs what your current Code says. It � ' "
�, says that with respect to administrative approvals of this sort,it says that with respect-- ��� .
! with respect to a two-step review and it says that with respect to a three-step review. }`' '
� I Three places. So—and I think before your cuttent Code,it was your practice,uniformly, N��*
; to always put that as a condifion of approval,that the representations of the applicant will �.. �
i �� .,.�k
HARPER So do we have minutes with the applicant making those representations?
���
- McFLYNN Other than the`78 minutes,not that I have found.
HARPER Yeah,`cause in the`78,unfortunately,you don't have the applicant.
McFLYNN But you gotta understand--
- HARPER You have Kinsley and Child discussing among themselves what they
would like to have happen,which isn't what happened. Like,they have two lots that
ended up three. And so I need from you— �
� McFLYNN But in--
_-_� HARPER —representation from the applicant. '
�
. I McFLI'NN There was no applicant until aRer your approval. Mr.Adelson,Mr.Hull
; and Ms.Johnson did not exist with respect to this land until after you blessed it with your
! approval,then they bought it.
HARPER Ah. �
McFLYNN They didn't exist in 1978 or in September of 1980. They were prospective
purchasers. If you read what—what happened in 1980 in the order,it doesn't mention
Mr.Hull or Ms.Johnson at all. It only mentions Adelson.
,.
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IRELAND IYs been your position is that Adelson had the ability to bind all of the �: .�° .
land by the restric6ons that he agreed to. ` �
't,�- .,;
Y•'. "K`i
McFLYNN Absolutely yes. It's a matter of the chain of ride of this land because-- ,,,.:�:...
.,'
• :,s
HARPER And l�e does. And--and--but he dcesn't-- ' ` '
�•.
McFLYNN Md let me —wait,wait. Let-- ��'
.A:+``.'.
CARVER You mean the chain of title? ``""�?'"`
k'�:-`
McFLYNN Let me—let me,uh,let me add-- �`` � � '
s<.r.
�i-'::' `
ELY There's one more thing. Let me interject here. �� .:
,;.
x�.
� ' McFLYNN It was Maurin. ''� ��
�;
ELY In the court,yeah,— i�::'
a.x
McFLYNN Yeah,it was the Maurin,not Adelson. �,�'
��
- ELY --of appeals what came out of Judge Craven's decision. The uh--the
� review in court made a finding that Adelson,who was acting as plaintiff's spokesperson �
during— �
f
; CARVER Adelson has nothing to do with this.
- � ELY --the negotiafions.
CARVER Right. ��
z IRELAND You need to--you need to let the attomey speak on.
, ELY And at that period of time that the reviewing court is referring to is the !�
� same period of time that Tim's referring to now. �
�
! McFLYNN ExacUy. I guess to put it in another more simple way,here's the situation.
Marie Maurin is a widow and is going to lose--and is going to lose her land if she can't ��
get a little relief. And the Board gives her the relief. Now,whose the applicant? The � .
Estate of George Maurin. ThaYs who you're dealing with when you subdivided. It
wasn't Mr.Hull or--or it wasn't his new family or it wasn't Mr.Adelson. It was the
Estate of George Maurin in a probate court case here in Pitkin County that you were
interacting with. You were dealing with his estate's lawyer and your lawyer. And they
were basically saying please let us subdivide. And what I'm saying is the representations ��
of that applicant pass with the approval into new ownership. Now,it would be a worse ;-,� ��:�
P
67 MARCH 12,1997
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' case,I suppose,if Ivan,in 1981,having paid$132,000.00 did you say,$152,000.00 for : s:
the land,sold it to some,I mean,in fact,I think all three ownerships aze still the same. r,. .,.�
All these many years later. So there's no bona fide purchaser who had no notice of what �;�
was going on. These are the same people who I think,with all due respect,want the ,:�;�•��.
Planning Office and Tim Malloy,the then senior planner,to review the applicution [sic] •
--the application in a historic vacuum and to allow bureaucratic amnesia to take its �'i,''
course because nobody knew when the application came in any of this history. 1'hen,
then your County Attomey got a(1 the documents and—and gave the advice that this had ��'- �
to be an administrative,no public notice,no public hearing because of three words,the •fi`n,�w
� stipulation says,"all home sites shall be constructed only within building envelopes G'`:�' �
approved by the AspenlPitkin Counry Planning Office,"Office. It would have said Boazd r``'�`
of County Commissioners,you would have done,I presume,regular 1041 public notice, �':�,'�� '
public hearing procedure. Isn't that a fair statement;isn't that why we're doing it
administratively? `Cause it says Planning Office. But nowhere else in this s6pulation or
in this order does it say you should not apply all of the then-existing Land Use Code ;,�,�,�
� � provisions at the rime some owner of any of those three lots decides they want a
j development approval. It happens to be that Ivan Hull is the first one. Could have been �:
� Adelson or Johnson. It happens to be that he applied in`95. Could be`91,`99. ;:4'
� nx.
I LAMONT Are you suggesting,though,that,I mean you said that the Planning Office �,jj
takes into account their criteria that they use when they work with an applicant to create a
_ —set up a specific zone plan which is something that we've had some fully moot
discussions already.
McFLYNN Right.
LAMONT But it seems to me what you're suggesting is that—that as part of that
process,as part of that review,typically what happens is people go back to well what
were the conditions under which a subdivision was created,what were the conditions--
t
McFLYNN Absolutely.
LAMONT —or what were the representa6ons that were made when the subdivision
was first created. ��
i McFLYNN Absolutely. �
i LAMONT Even though it happens to be 20 years ago. �
. i �� '
iMcFL1'NN Absolutely.
i ��.
' LAMONT It would be just like a subdivision created tomorrow,Williams Ranch. I
They sell a lot to an individual property owner and then property owner comes in for the
special review,you go back to the original subdivision— !� '«• �
r �.
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6g MARCH 12,1997
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' McFLYNN Absoiutely. ��'f;�,-`���'
LAMONT --and you look at what was-- '''� �`;>
� �a
HARPER Right. :'���'.�' .
:,c . .'
McFLYNN Absolutely. That's all I'm saying.
LAMONT And are you also suggesting then that those conditions aze what are found ;t:.:':"' �'
in all the various documents that you have handed out to us? `:.;.:_-�,.,K- .
McFLYNN That is what I'm su estin � `'
i gB g• h:.:,.:;: .
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? LAMONT Being in the midst that you've been reading in the findings and— F��,r •
�
� McFLYNN That is what I'm su estin because--
, , bg g Y�' .
I HARPER And this is why—can I finish? �`
�
McFLYNN Yes.
I�`�
. HARPER This is whai's got me puzzled. Last night we heard in--down in the
Frying Pan that rural and remote,which is a cabin with no electdcity,et cetera,is selling
for about$100,000.00. Now why would these people have bought a rural and remote
� type property 20 years ago for$152,000.00? I'm assuming that they didn't think they
i were buying a cabin in the woods because that was$152,000.00, Twenty years ago was a
� hell of a lot of money.
� McFLYNN Uh,I don't know what's surrounding—
I
HARPER And thaYs why I'm confused.
McFLYNN I don't know what surrounding tracts of 150 acres were selling for in 1980.
_ ' I've no idea. Do you?
i
� HARPER I know that people didn't buy what they thought they'd have a cabin and
' ! no electricity for$152,000.00. I mean,God,our house was a fortune and I think it was
± $160,000.00 and it had electricity and it was,you know 1,600 square feet
. �
McFLYNN I'm not clairvoyant. All I'm suggesting is,Leslie-- �
HARPER And that's why I'm confused.
McFLYNN —articulated a moment ago.
a� .
'~'-
69 MARCH 12,1997 �.
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HARPER It doesn't make sense to me. ;:";��"�'�
McFLYNN That anyone woufd spend this kind of money? Why would someone— � �`',�
, .• s
HARPER [Unintelligible,talking over each other.J '�'�;•�,,�
:'i,'.• .
McFLYNN --spend$SOO,QQQ.OQ improving roads,uh,and litigating an alternate
access unless they had in mind--
'9:-<�
HARPER They think they can build a house? i-=':.:.i.~',
t':,,.
McFLYNN --unless in mind,which is the in Johnson parcel,here's a Mason and �.;,;•��. •
Morse flyer. Pristine wildemess retteat,only a million and a half dollars. That's the t;; �:
Johnson parcel. I suppose because,uh,you can,uh,speculate and make money if you � .
i hold something long enough. ''`` �
}T'
, IRELAND But Tun—but Tim,is the expectation of the purchaser relevant in light of r,
the—
a�'�;x.
McFLYNN Not at all. ,.;�
IRELAND --recorded deed restrictions?
A�
i
" ' McFLYNN Not at—I don't think iYs relevant at a(L a
HARPER We don't have any recorded deed restrictions except they can't have
telephone and electricity.
� IRELAND [Uninteiligible.]
lHARPER Yeah,but it only says telephone and electricity if you read it word for
� word. There is no house size. There's no--none of the stuffthat Tim is insinuating �
when you read what we actually agreed to.
;
McFLYNN I'm suggesting that you,remember where I started which was,you know,I -'
-- have had—I spent way more time sitting here listening than I have doing any--any �
investigation or reseuch. VJhat I started to heaz was,and I—I hear yow chuckle,where I ��
started here was that whether the applicant comes in and iYs the same persoa who bought
the lot when you subdivided and approved the subdivision or whether iYs 20 years later � .
and iY s changed hands five times doesn't matter. You should go back and look at,harder
' than we have,everything you have and if you need to take testimony,then take testimony
if these letters aze'nt sufficient. But look at everything you have on the representations to y �
the Cowty which should be conditions of approval. That's your Land Use Code. And �.
the representations as best Pm able to discover them,aze in the minutes of`78,which I �i�'
read,the letters of all three commissioners. I didn't find one. I got--I went to all three. ' ,. °-
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70 MARCH 12,1997
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� What do they recall being represented to them? And the fact that it wasn't Mr.Hull,you �'=�,
know,you have to understand that--that thaYs because he didn't own anything until after .�
you approved the subdivision. Nothing that happened after October 2,1980 am I � ��
suggesting is binding on him. I'm suggesting everything diat happened before October 2, -
1980 is binding on him- � .��'-
LAMONT On the property.
McFLYNN --on the property because iYs covenants running with the land and iYs
conditions of approval. ThaYs what I'm suggesting and that's why I inVoduced this by ` ''
saying one of the things that we're seeing here is how,when we try to do this '
administratively with no public notice,no pub(ic heating,no chance to really digest all of '
� this,iYs sort of,um,you know,it's not a perfect procedure. No adjacent owner has seen '
anything that was presented by the applicant during either the last hearing or this hearing.
� ThaYs fair. ThaYs the way it works. I haven't-they haven't seen anything that I've ,;�
• '• presented until now. And that's unfair. None of you have digested all of it. ThaYs why
� I think you ought to take some additional time. We ought to look at the historic record.
� If you need more testimony,look at it,but hold these lot owners to the conditions of ��:
. approval of this subdivision. �.
, �i+
Second and last point,first point was the institutional memory point. The second to last ��
. , point I want to make is sort of the magnitude of this issue and why the Monastery,who I I�
have represented for many,many years,asked me to be here these many,many hours. �f
Um,the upper Capitol Creek Valley is not a second home center. The upper Capitol j
Creek Val(ey,for the most part,are still working agricultural ranches. The Chiid ranch,
� the Maurin ranch,the McBride ranch,the Monastery ranch,the Rupert ranch. You can
� look on that map and most of the properties on that map aze working,agricultural
j ranches. We did a study of the neighborhood or the chazacter of the neighborhood thaYs
� on the map. We didn't go and include Lazy O or the McCabe subdivision. We looked
� just at the upper Capitol Creek Valley and the Staff could confirm this,but these are- i
! this is what we found. That the Child ranch has three residences of approximately 3,400,
� 2,000 and 1,000 square feet. The Webin ranch has approximately three--has three
,� residences approximately 1,000,800 and 604 squaze feet. The Canino property has one
� residence approximately 1,200 square feet. The Rupert property has two residences
; approximately 1,200 and 1,600 square feet,and the McBride ranch has four residences,
r2,400,1,500,1,200 and 600 square fee� Those 13 residences currently occupied and
• E used as homes in the immediate neighborhood have an average of 1,430 square feet. So,
;' I put tl�at out there only because it seems to me if you read what the Commissioners said F
in the minutes in 1978,what they were trying to say was we'll let this be a three lot •
subdivision but-and they make specific reference to the Huffman lot,the type of
development on the Huffman lot,which is a cabin,because the neighborhood they were
trying to preserve was agricultural with accessory residential uses and not the other way
azound. Not major 15,000 squaze foot home plus cazetaker residence plus bam plus �
accessory buildings with an--maybe an agricultural activity on it. This is agricultural P5 -
land and that's why the Monastery wanted me to be here. Uh,they have been here since �^'-
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7t MARCH 12,1997
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`56. If you know much about monasteries,uh,they last a long time. Fifty-six isn't very � !'.
long ire the life of a monastery. Uh,they are the largest land owner in the upper Capitol � .,
Creek Valley. They'd like to be here another few hundred years. They don't have to �:.;�.�
stay. If the Lazy O,McCabe Ranch,uh,type of development approval in the lower ,,•,�•��.
Capitoi Creek Valtey begins to typify the upper Capitol Creek Valley,the Monastery •'.�-
surrounded by that kind of development won't be here and that's why I was asked to be '<,'�,
here.
%i
So,uh,I realize that as was the case when I was listening to the applicant,all of this is ���'^ ,
new and maybe,uh,the process isn't perfect. I would ask that the adjacent land owners "`�'�"� �
be given notice,that the Forest Service have an opportunity to have some infor—input on
the Hay Paric Trai1. LJh,I know that in Tim Mailoy's administrative approval,because he
' is not--because it's not a typical 1041,there's no exaction of anything to protect that
! trail proposed,but that is a--but that is the trail linkage between those two drainages.
� From Cow Camp up into Hay Park and down West Sopris to Dinkle that is the trail. I �
( have seen,in fact,in this room using that trail. IPs a very key trail. Uh,I don't know � , ,
why,even though the Code doesn't require notice of administrative proceedings,this sort
I of proceeding should not be given norce to all the adjacent land owners and an 4'
opportanity to be heazd because I'm here on behalf of one,the Monastery. ?�
��I
Your map is also inaccurate. The McBride pazcel actually touches the Hull pazcel. That A
• � is an adjacent ownership. Um,but--
SASSANO It does touch.
; McFLYNN Does it show that ii touches7 -
i
• , SASSANO No.
� FARRIS No.
SASSANO Yeah,Cow—
_ FARRIS Well,it dces. I see from here. It goes—
, � McFLYNN Yeah,they are--
�
` ELY Yeah,the County GIS Map doesn't show that. ,
WELLS Those show them touching on the[unintelligib(e�maps right here.
McFLYNN ThaYs perhaps a litt[e bit inaccurate but that's the nature of the materia(s
we have to work with. Um,so I appreciate the opportunity to present that information Yo
you. It has nothing to do with wildlife. It has to do with whether you have an �'.
�.:� �±~-
1'.
72 MARCH t2,1997
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�.
conditionsofapprovaL +� •`.>
. �,.
. .• ,
T[JITE Thank you. Questions of Tim from the Boazd. f''r''�.�'
FARRIS I just have a question. I'm--you can probably answer this—clarification.
Uh,in the discussion in the minutes where the Board members referred to what they :*:
would like to see,which is the one family house of seasonal use[unintelligible]roadways "'' ' ��
9.;.�
and hoping the land would be covenanted and development would be similar to Huffman `�;�".;-
and so on and Stellar was asked what to draft. It says,however,that Pitkin County would � .;> .
allow the corporate order of subdivision acceptable to the County. And in that t: ,e:-:
subdivision,then,which I assume the Commissioners would have to approve,was only �`'� � �
�i that one stipulation. So it doesn't include,then,all of these things that were said in here � `� �
� are not,then,included in the next docwnent which says the stipulation is that these are ` ''
i the three units that were subdivided out and each one shall have a building site �;�
' � determined. Period. '
t:
ELY Right. '+�,�x
FARRIS That was what was approved then later by the Commissioners? 9:'��
• ELY Um,not exacdy. Um,the,uh,the scenario was this. When George `�
; Maurin died and the Estate had its financial problems,the Estate had a plan for dividing
Ithe properry into 35-acre parcels. Um,they,through the administration of the Estate,
; through the—through the Court—
1
FARRIS Um hum.
i
_ �
ELY --requested the Court to divide up property that belonged to—to the
Fstate.
i FARRIS Um hum.
i �
_ .. � ELY State law required no6ce to go to the County of that proposed partition of �
land. The County got that notice and objected and thaYs how the County became a pazty
,I
to this lawsuit-- k
i
; FARRIS Um hum. �
ELY --and the administration in re:the Estate of George Maurin.
�.
FARRIS Um hum. � �
ELY The stipula—the stipulation was agreed to by the County and the Fstate, 'i,. .
not—not the tluee people that were-- �.
� ;
73 MARCH 12,1997
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FARRIS Right.Right. I agree. I see. - .
��= -i",
ELY —buyirtg the property,the County and the Estate. Um,it was reached at �:-'•'3
+ tltrough a variety of ineetings,um,closed and public. And this public meeting was one of ��''�� '•"
those meetings which generated the authority for Sandy Stellaz,the County Attomey at ��.
fhe time,to enter into this stipulation. The stipulation then became adopted by the Court, i-�`i,,�•
at order of the Court. The order was stylized order for sale becavse it allowed the sale of - _
pazcels within the property owned by the Estate so that—and that was the end of it. ����:`:�:' �=
,?.i.?:'Y���.
FARRIS Okay. C:_,:.:- .
- ELY So—so the--there was no formal subdivision process. There was a
ti�:�..;.�: -
Court-ordered partition of land which was agreed to by the County pursuant to this ;:`�
stipulation. So--
. :i "y+
, ft
FARRIS Okay. Does that Court order and sUpulation,then,supersede ihe . -
discussion that took place in these minutes where they're saying what they would like to ��
see included in that stipulation? ��.'`
r�N
HARPER Because they[unintelligible�-- ��
iFARRIS Because if it does—
IELY Yes.
!
� FARRIS Okay,so it supersedes this?
�
� � ELY Are—are you finished? Are you leading into another question7
1
FARRIS No. '
ELY Okay. The stipulation gives rise to the order of the Court. The order of
the Court is the ultimate controlling factor. �,
! FARRIS Okay.
. j �
! ELY The dilemma that the Board is dealing with in part,is the same dilemma
that Staff dealt with,the Planning Office,the Community Development Staff,because . �.
' they were required by this order to deal with it,is to what then qualifies or constitutes a � '
home site.
FARRIS Right.
'�' ;«;:,
,: _
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74 MARCH 12,1997
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ELY Each of the three lots created by,pursuant to this partirion,are entit[ed to a �=:y..f�`4�;•
`R� .��� '
single family home site and accessory ag—agriculturai uses. Thaf's all they're entitled " •
to. So the stipulation signed off on and the order makes it a property out of the formal 'i�'�� �`�.
County subdivision process outside of,to that extent,the underlying wne district— '�' " �'�
-;..: -
- :;'
FARRIS Um hum. , '
,:.
ELY --because they are only specific uses that are allowed as opposed to what
the underlying wne district allows in RS-3Q at that point. }-.�':s�. ��
g;,.+?.:�.':
� FARRIS Um hum, � k:,�,:..
i � _.
ELY And then,but it uses the term single family home site. And,uh,what then
does that mean? And single family home site is not defined within the order of the Court �
, , nox in the body of the stipulation not in the uh--the records of the Board,such as they �`� `
� exist,with parficularity. It is also not a term that is used with particulazity within the �7'
i body of the Land Use Code either at the time this was done,the old Land Use Code,or �`
� the cunent Land Use Code. So to define what home site is,what that means is then the
I
issue. And--and what you are forced to dq I believe,is to look at the surroanding .+�'
circumstances which include the Court of Appeals opinion,the letter that was signed by ��
Ed and Diane Adelson,the representations that were made to the Board,the assumptions �
that the Board were act--was acting on. At least these assumptions made publicty in
front of the property owner as opposed to what a private assumption might have been
FARItIS Do you use that information to determine the--
� ELY To try to determine-- r.�^`
� FARRIS —definition of the home site.
I
£
ELY --what exactly are we dealing with.
FARRIS Thanks.
} T(JITE Any other questions? Tim?
r
. �.
;: CARVER Got[unintelligible]believe it or not. Um,Tim,let's start with the easy
` and collateral ones first,uh,before we get to the more interesting ones. The last
' comment had to do with the trail. What's the trail got to do with this approval?
McFLYNN Normaliy,in the appmval process,if there's a key public trail that is �
crossed by access to the land or by--or crosses the land,its addressed. �
CARVER Yeah,but the problem is this trai(doesn't cross this iand. ��
?y:-.
t' 1�'
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75 MARCH 12,!997 F
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McFLYNN I said or access to the land. " •
CARVER Okay,now did you know the access to the land is controlled by the �"" �'�
easement grantor,the Maurins in this case,correct? � ..�:�'
McFLYNN I have no idea operationally what really is going on on the land. I know— ` •
what I do know,you wouldn't want in the record. �s � "
l.'�'.
y.._y'
' f
CARVER Well,what you do know is thut with respect to the easement,which Mr. ;,,�,.�`�:
Hull enjoys,across that road,it is a non-exclusive easement that he has for access to and .:;":;:;
from his parcel;is that correct?
� ; McFLYNN If you want me to check the document,I will.
� ,
I
. � CARVER Well,that's the general nahue of what we're talking about here,right? '!
i
� McFLYNN Hang on one second. The deed to Mr.Hull says,since you brought it up,
� iYs a 40-foot non-exclusive easement or right-of-way for access over and across the i:�.
� existing roadway,the Maurin--on the Maurin properry,"provided that said roadway ���
shall not be mater--materially changed or altered or trees removed without the consent
of the owner of said property." ThaYs what it says in this deed. �
. . i
CARVER Well,that's not my point. Let's get to the point of the trail here. Mr.Hull,
as the owner of a right of access across that road,has no power whatsoever to adversely
affect the public's use of that trail,does he? j;�.
�
! McFLYNN I have no idea what his plans aze in order to—if he wants 15,000 square
_ feet on all three of these properties ultimately,I have no—I have no idea what the plan
will be that will affect the trail. There's 800 feet of public irail on the road and in terms '
of fencing or anything else,I have no idea. i
CARVER Well wait a minute,okay. The road doesn't belong to Mr.Hull.
_ . I McFLYNN Right. s
CARVER He only owns the easement across the road. �
� McFLYNN I under—as I understand it,whether it belongs to him or not,massive I
. improvements to that road have been done by the property owners of these lots,not by
Mrs.Maurin,and I presume that includes the section thaYs traversed by 800 feet of the �.
public traiL f
I .
CARVER What's that got to do with the public trail? I'm just missing this whole
point,I guess. + ,. •"
1 --
I
; 76 MARCH 12,1997
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' McFLYNN It seems to me that the impact of the access road,fencing,whatever,on the �''!'_
public trail should be considered by the County. �•;.,;,
, '��
CARVER Has Mr.Hull blocked any access? ,�� -•
� .',o
McFLYNN I have—I have no idea and the Forest Service isn't here,is it7 '��� �
CARVER Does Mr.Hull have any power whatsoever to block access to that trail7 >��-��'`
q�:,•
McFLYNN I have—I have no idea. You mean le all 7 Do ou mean le all � r'"`*"' F
g Y Y B Y• l :�.
CARVER Yeah,legally. f �
k;':'':"•.
.i �. . •:
I McFLl'NN Uh,perhaps not. (,�,4
� ;Y�
� CARVER Thanks. Now,leYs go to a little more difficult questions or at least the _
i more interesting. LeYs start with the 1978 Board of County Commissioner meeting, �:
those minutes that you presented here? ��
�•�
McFLYNN Right. ��
4
. CARVER Okay. Um--
, McFLYNN And I presume there are other minutes,but I haven't been able to find �
� them.
CARVER Well,IeYs just take the ones you've presented,since the Board is going to
� have to[unintelligible]. What is being talked about here is an approach to ongoing
mitigation,is it not?
.i
; McFLYNN You can chazacterize it however you want to. I think what's being talked
s about here is trying to work with the fmancial exigencies of the Maurin family to come
up with an accommodation and giving--giving the County attorney the authority to try
to negotiate what I read as one single family home for seasonal use only with no utilities f
or roadways,that's what I think it's about
CARVER Thank you,Mr.McFlynn. I want to emphasize your words,try to
negotiate. ThaYs whaYs reflected as to what the wish list of the County was in this
litigafion;correct? -
McFLYNN As of]978. ��
CARVER As of 1978,this was their wish list of what they wanted to negotiate if I.
h
they could get everything they wanted,right? ; .
I '�
!
77 MARCH 12,1997
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, McFLYNN I have no idea I mean,usually,these kind of discussions are not even, ������'�;�+
• you know,the subject of public meetings. So you can call it a wish list,if you like. �-
-�
CARVER All right. And,um,in fact,um,what,as you pointed out,what the County `� '!a
was trying to do here was to tell the Court that the Court couldn't subdivide the Maurin ,'.'�,,'
Estate into 35-acre tracts because County regulations in place at the time,under the , '.
County's view,superseded the Court's power in that respect,correct?
McFLYNN I have no idea. ��`�.;'., �'
. �:';�_:.:.
CARVER In fact,the p�case established subsequently that Pitkin County
didn't have the authority under state law to do what they were hying to do here;is that
conect? "
McFLYNN I have no idea.
�
! CARVER You know the Pano�ska case,don't you?
McFLYNN I have no idea F��
;
CARVER Do you know that case? �.lf
I
FARRIS I do not recail.
IMcFLYNN Well,what I'm basically saying is if you want to make an azgument,make
I it to the Boazd. Don't hy to get it out of my testimony. I have no idea whether that case
+ affects the situation in this whole applicarion.
!
jCARVER You do know that-- you've read that case and you're very familiaz with
! what it holds,aze you not?
� i
� McFLYNN The truth of the matter is no,I have not read that case.
CARVER Okay. Do you know what it holds?
� � McFLYNN No. �r
• CARVER Uh,was it correct that the County's position at the time of these
negotiations was known by the County to be tenuous in the sense that maybe they were �.
right,maybe they weren't right,as a matter of law. � '
McFLI'NN You're just making statements for the record and I have no idea what their �i
position was.
� .
�.
1 �`
f
78 MARCH 12,1997
� �
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, CARVER Okay. T�tow,what the County said here and what you do have some idea �!: .
about is the statement this would be involve a two-lot subdivision of 160 acres each. Is
that what happened? �.,�,'�.�
McFLYNN I believe it was three lots. � ��''
CARVER Okay,so there was--do you know wheilaer,the reason why it went from
two to three is because the Maurins negotiated a better deal than the County wanted to -
give them initially?
,:r
i McFLYNN I have no idea? "
�
j CARVER Does that stand to reason?
! c.
McFLYNN If you want to put on geople who were involved in the negotiations,that },
� - % would probably be the best way to do it. I don't think any of us were-- `
� ;.
!I CARVER Well,we'11 get to the question whether that's the best way to do it. The ;;
i County then said that each—this subdivision would be for one single family home for �
seasonal use only with no utilities or roadway,that's what the County wanted,according ,
, to these minutes,at that time;is that correct?
� ' McFLYNN ThaYs what it says.
�
CARVER Alt right. The land would be covenanted to that e�ctent;that's whai it also
says,doesn't it?
jMcFLYNN Yes,thaYs what it says.
� CARVER Is that what happened7
.
p
FI McFLYNN In part.
S1
� CARVER Not in its entirety,correct?
!
� McFLYNN In part.
• 6
{ CARVER In part. Let's look at what part,in fact,happened. The two parcels
became ttuee,correct? I'm sorry,they became four. I think they became five. .
WELLS 'I'hey became five.
McFLYNN I think it became five,actually.
� ..
t `
�:
79 MARCH 12,1997
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CARVER Okay,they became five instead of two. Now,I want you to find for me f,`r'�::t�':i;.
any references in Mr.Hu1Ps chain of title to a covenant which restricted him to seasonal ;�%":';.-.��'�'�"'
UseT " .
�.�' .t1 _
�`.;1 1
McFLYNN The only thing that I'm aware of in his chain of dtle is the order of the
Court and the covenant running with the]and between Stellar and Quinn. r', ;��.
.,� ., •
CARVER We11,leYs--IeY s deal with those separately. Um,we have—we start off,
according to your documents,let's start--start with Mr.Hull's deed. Who did he—who
was his grantor? �<"''� '
:.�::;,�.�
i McFLYNN I think everybody here can read the document His grantor is in the ��-��:' _
j document. �;,;'��
�
; CARVER IYs the Estate of Marie Maurin,right? Is it Mr.Adelson? ��.�.
1
I McFLYNN No. �`
i .
CARVER Okay. �:
w
McFLYNN He's not in Mr.Hull's chain of title. �
. I'
. j CARVER Okay. Now,in the deed itself,as you pointed out and as you read,the
deed is--Mr.Hull took subject to certain reservations and exceptions which aze reflected
in the recorded deed,coaect?
McFLYNN In the recorded deed?
_ � CARVER Um hum.
}
� McFLYNN There aze references to other recorded documents. �
i I
E
� CARVER Right. The deed itself references ihose exceptions—
�
_ ji McFLYNN Right.
F; CARVER —and those sripuiations to which Mr.Hull,uh,was bound when he took
' ! the deed,coaect?
�
,
, McFLYNN Right. .
CARVER All right. Now,there is a reference which you cited fo, a stiputation,not
to,but a,correct7
McFLYNN Um hum.
.�,
80 MARCH 12,1997 �, !' __
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CARVER With the Pitkin County recorded where,Book 395,page 738? '
: .�a.
McFLYNN In fact,thaYs an order,not a stipulation,but iYs called a stipufation in his
de�. ��'.;:�'
� '.
CARVER All right. And the order itself also has been presented by you,correct?
McFLYNN Right. `:.```:: �-
�t,
:Y �. .
CARVER Is there any reference to seasonal use reshiction in the order?
� McFLYNN It speaks for itsel£ •�
i �
� CARVER The answer is no,it doesn't exist.
�, '
:�
! McFLYNN It doesn't—but I've said two or tluee times,what's in the covenant itself
i has to do with roads and utilities,not seaso�al use. �;
4�
. CARVER Do you know,Mr.McFlynn,whether,between what the County wanted in ,i
1978 and what it got in 1980,it lost the ability to impose a seasonal use? �'
i
McFLYNN I think I do. I think Mr.Kinsley,Mr.Child and Mr.Edwazds,who were
' • there,and you weren't,and I wasn't,said in their letters what thay thought they got.
CARVER So you and I don't know because we weren't there. -
j! McFLYNN Their letters aze here.
i�
�• CARVER All right. Now,whaPs in the deed itself?
S
��
�� McF[.YNN The deed can speak for itself,just like all the other documents.
�
51
; CARVER Now,if Mr.Kinser and Mr.Child--
� McFLYNN Kinsley. �
�' CARVER --Kinsley,excuse me,and who was the other commissioner? �
McFLYNN Mr.Edwazds. �
CARVER Mr.Edwards all testified,based upon 20 years'worth of inemory,one c
thing,and Mr.Adelson and Mr.Hull and Mr.--and Johnson all tes6fied the opposite,uh, � 4 •
is that how real estate rights are resolved in this country of ours under real property law?
��. iti __
81 MARCH 12,1997 1�. .
I �; , ,
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McFLYNN Uh,I don't know what your point is.
�:���ti,3;��
�,.,;.
CARVER The point is something called the statute of fraud. You know what that is, �"'' "••
don't you7 �' ���
•;..',.� -
.,'
McFLYNN Yes. ' �
-.�.•.
t'-
CARVER It means that in this country,if restrictions aze going to bind real property,
they have to be in writing,right? ,'Y:-"';'� �
..::_r. `
McFLYNN I think that the restricfions I'm talking about are conditions of approval for �.•;"•: -
a subdivision and I have pointed out many writing where they are addressed,and if �``%;, -
I i;:':•:-
� they're not in his chain of 6tle,uh,thaYs an argument you can make when you sue the �• ,. .
i County. # ,;
� � w
� � TUITE Excuse me a second. f`�
I ;
jHULL We're done. r`
, 'i.r
TUIT'E No,no,no. I see members of the soon to be Frying Pan Caucus out there. r
We're going to be probably 15 minutes over. So I know you're enthralled with this— ��
CARVER This is almost done,Mc.Commissioner.
� a
; TiJITE Well,I know. But we still have to bring it back to the$oard for some
( discussion on where we want to proceed,so I'm just putting on notice,we'll probabiy be
! about IS minutes offour schedule,okay? Thank you. Please proceed.
j CARVEIt Qkay,um,so in terms of the County's goal for seasonal use,that didn't
make it into any of the written documents in the Hull chain of tiUe,correct? ,s
��:
� McFLYNN In the chain of title,as you define it,that's correct
_ � CARVER All right. And what is in the chain of title is reference to a single 1'
, stipulation,not two stipulations,correct?
, McFLYNN Correct.
1
CARVER Okay. The stipulation that is referred to is,in fact,the order which in and �`
of itself does indeed contain internal reference to a separate stipuiation,dces it not?
I:
McFLYNN Correct.
CARVER And that stipulation also in the public recorded documents,is not attached
to your documentation,maybe it is,but there is a separate stipulation wtrich is in the T' ,. •
1'. ,-
82 MARCH 12,1997
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County Commissioners'documentation which again conffiins reference to whatever �,-��;�=L�-'
limitations aze in his chain of title,correct? �� �� `
��4� -':
McFLYNN I don't know that stipulation that yodre referring to. ��
r,'' ��•
CARVER All right. I think we've got it. Jce,do you have it handy7 _ . .'�!
�,•t
ELY I don't know if I have it. �'� :
,.;:,;.
Y'; -
T[JITE Sorry Joe,we diddt mean to wake you up. i,:.:�e.ri,.~?
I
i HARPER Who,me? What?
� �::.'^ .
i � :: .;.
WELLS I thought it was over. I just thought since we[unintelligible]the legal ,�.,
issues. Do you want the— �``
. } �'`
CARVER The stipulation itself,yeah. �� �
1 �'a
WELLS Yeah. It's in the book. �y;�.
�
CARVER IYs in the book. To your knowledge,is there any restriction on seasonal ",'c�
use in the siipulation that is,in fact,referenced in the order?
- :�
McFLYNN Are you referring to the stipulation in the probate court action? �
T..
CARVER Correct
;
McFLI'NN I don't believe there is.
- i
� CARVER Okay. The— ,
� McFLYNN But you know,I--you can make all those points to another forum. I don't
J think you have to make them through me.
i
- -- CARVER I'm making them to the counsel,to the Commission because I think you �E
implied that there were things that when you really look at the documents,don't hold
. water. You implied that there was-- ��
McFLYNN I didn't imply. I was express in saying that the conditions of approval,in `
' the opinion of the people who were there at the time,with the exception of Mr.Hull,were �
very cleaz and whether or not they are on the chain of title in terms of real estate law is a
totally different point that I didn't make.
�,
1� —
g3 MARCH 12,1997
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CARVER Is it--whai they wanted may have been cleaz,but is it cleaz whether they �`?�,a'�'�'����
actually got it as a result of the rough and tumble of the negotiations associated with this
litigation7 ' �`',� '
:. :• �
McFLYNN I guess that's a question that the Board will first decide and then maybe `'�: �_
someone else will have to decide. 4 •�
CARVER So as far as you know,you have no first-hand information which would
indicate that what actually emerged in a writing in these documents— �i';`;; +-
�;:°:�,..
McFLYNN I'm not sure--
i CARV ER --wasn't the final deal? i
McFLYNN I'm not sure we have it ati yet,as a matter of fact The point I'm trying to ���
" make is because of the way in which this,uh,applica6on was processed,basically a way �
� in which allowed it to be processed all the way through to today,without any public '
iuput,I'm not sure we have everything yet. And my point is that I think we ought to be
' sure that we get everything before we ask the Boazd to make a decision about whether the `'ie.
conditions of approval of this subdivision should be adhered to by the applicant They're ���
� adhering to their side. I'm--I'm suggesting that maybe ihere's more research that needs �
to be done.
CARVER To your knowledge,was either Diane or Ed Adelson granted a power of
attorney by Mr.Hull? -
� McFLYNN He testified that they were not.
� � CARVER Have you seen any in the public records?
� McFLI'NN I didn't see one. �
CARVER Okay,now if I go and record a restrictive covenant against your property,
� which I've never owned,does that have an effect on your uses of that propercy?
� McFLYNN I'm talking about conditions of appmval. You're talking about chain of
6 tiUe and we're on different pages,su.
:
� CARVER Yes we aze. But the point is,as a matter of real estate law,a stranger to `
� the title who purports to restrict your usages by imposing a covenant,has no power to do
it,does he?
McFLYNN We're--we're on different pages.
:, ^�'-.
;.._-
1
84 MARCH 12,1997
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, CARVER All right You quoted Judge Craven's conclusions of law that the Board }��,�'�`�ti�
of County—
.;
TIJITE John,a little lower please. !� ��
t•, •:;
• •,,,;
CARVER --Commissioners granted,and I don't have it in front of ine so I may •
misquote it here,granted its subdivision approval or its agreement to stiputate to these
court orders on the implied premise of seasona!use;is that correct? `�:,.:'=.,:
t;``:-=
McFLYNN ThaYs what--thaYs what Judge Craven wrote. Actually,no. He wrote �.:::.�.�•
the BOCC granted the lot splits on the implied premised that there would not be normal -
yeaz around usage. ThaPs his actual words. .
CARVER And to your knowledge,he was correct in the sense that there's certainly
nothing express in the,uh—in the chain of title or the real estate records or the covenants ' �
which were actually negotiated between the County and the applicant,the Maurins,in '
� this case;is that correct?
McFLYNN That's a legal question. Somebody will have to decide. °''
��,
CARVER Now,again,I have certain--I happen to own some property in Grand ; �
County,fortunately,and it's pretty rustic. IYs a cabin and— �
� TiJITE All right. Back[unintelligible,talking over each other.] I'm still feeling
� that one,you know. It sinks in.
CARVER Now if I intend right now that my cabin is going to stay as rustic as it
; currently is,does that legally restrict me 20 yeazs from now from changing my intent or
- � having my son do that and to—and building it up to County zoning limits7
,
McFLYNN You're asking a lot of rhetorical questions,sir,and I'm not going to sit
here and you might as well just testify. Take the oath and testify.
� CARVER Well,the reason why I'm asking— t`
I TUITE Hold on a second. Mick? '
�
,, IRELAND You know,I've got to agree. There's a point at which—these aze alt �
legitimate legal azgvments and if--they're azguments and they can be made at closing or
you can bring a witness to make them,but to get--to try to get Mr.McFlynn to admit �
that you're right and he's wrong,it's not going to happen and it's just consuming tons of � .
time. If this were a court,you'd be cut off and they would say,look,asked and answered,
azgumentative,and Tim's right.
CARVER Well, �'�. ' -
I �
P
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IRELAND You just keep asking the same questions,and Tim is not going to admit -'.'�`- .
ihat he's wrong and you're right. This is an informal proceeding. You can make al[ ��;�� �;
those arguments. You can present evidence on it. You can do whatever you want,but F' � '�:
Tim isn't going to do it for you so why do we have to have you try to get him to do it. I •:rT'e''.,-'
don't understand it. ' •
1�.` �•
CARVER Well,here's my quesGon,my last one. As we all know,there's a ��
difference between teiling people what you currentty intend and binding yourself to not ��,•.' �`
do something else in the future. Now,everything I've heard you reference here,coming ,^;�.:�:':.
from the side of Mr.Huli or even from Mr.Adelson,is not this chain of tifle,has '
reference to their then cunent views of how the saw their lifes le. Wetl,m �"��
y ty y question is �.
� �.,,', ; .
what evidence is there in any of these materiaSs you've presented that they intended that !•�'
to be binding on them and their successors in interest for all time. Anything? �
• McFLYNN Can you ask that a different way? !>-;
CARVER Are you aware ofany of the information you presented to this Board, ��
which indicates that the intent of Mt.Hull,or even that of Mr.Adelsan,was to bind their �x�
property to seasonal use or any other restrictions permanently unless reflected in the �ti"'
d oc u m e n t s t h a t y o u h a v e p r e s e n t e d t o t h e m 7 `I'��
McFL'YNN I think the way I would respond is that the representations that we're
talking about were made when the Estate of George Maurin owned the property. It was
the Estate of George Maurin that wanted subdivision approval by court decree in a :�
probate case. And the County had a right to have notice of that and got involved in that
case and opposed that under its subdivision regulations. And I think that the--the only
_ point I'm making is that when the County ultimately withdrew its opposition and allowed
the order,which is specifically an exception to Mr.Hull's then chain of tide,those
documents of record to come into being and be approved when the County did that,the
County was relying on all of the representations that had been made as to how this very
remoYe,very inaccessible series of lots would never have County road extensions or
eiectric utilities because the then would be owners,still owned by the EstaYe,but the then
would be owners who wanted to give cash to the Estate to pay the taxes,said it's okay
!, with us. Snawtnobile access,some summer seasonal use is all we want. That's what I'm �
' representing. And that tf►e conditions of that subdivision approval,not to Mr.Hull or to �
Mr.Adelson or Ms.Johnson,but to the Maurin Estate,follow into new ownerships just :j
± like if I bought the tot yssterday from Mr,Hull,I'd be subject to the same conditions. �
CARVER I haven't seen anything in these materials that indicates what the Maurin •
Estate represented to the County. Is there anything in there other than whaYs wtitten in
order or the stipulation.
McFLYNN I made the point before there are Iots and lots of documents and memories
that have not yet been produced here because of the way in which the applicant has gone , ,
��~-:
� 86 MARCH t2,1997 �' -
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about this proceeding. I have no idea whether there are other documents. I would
assume there aze. There were,you know,there were--there aze survivors of that family, , �,�y
including Marie Maurin,the lawyers are still around. There aze fiSes still azound,court r;.��',;•
files and lawyer files. I have no idea what was represented. They wanted money. The ! ' •
Maurins wanted to be able to subdivide so they could pay their taxes. Whether they made '+';:� .
the representations that these would be summer cabin,not yeaz around access,no electric
utility,house size,I have no idea. Do you? You can't represent that that's not the case, �"q:�:°::.�,, �."-
I'm sure,because we haven't leamed. ;.�:'Y";
CARVER No further questions from me,but-- k�'^�
�;_.
! . , .
IiIJLL Tim,why--why aze you here? �'� '
�';�-,
� TUITE Ivan,a little louder for the record lease. ���,t
P ;� •
, i HULL LJh,why are you here at this meeting? !�::: .
�:.�'
McFLYNN I--I stated my purpose— ``�
.'�'II
FiLTLL In brie£ ,t`
-i
McFLYNN I'm here on behalf of an adjacent land owner who got no notice aad no
' I opportunity to participate in the administrative review that you have appealed and what I ;
tried to do in limited time was to bring some additional factots before the Boazd before it � '�
� made a decision that isn't just for the benefit of your property but,as I view it,the benefit
of at least four very remote agricultural properties.
HULL That's the sole reason? There's no other people that have asked you to be �
- here on their behalf? � �!
McFLYNN I am here on behalf of St.Benedict's Monastery. They're my client. , �
HLJLL All right. � `
iMcFLYNN Pve represented them for years. ''"
i
! HLJLL Were you at the Grace Huffman hearing;it's rhetorical,but I know you 1
weren't,but I just wanted to put it on the record,for her lot split and two 5,000 square � '
foot houses? � �
McFLYNN No. But I know about it. �'
�; �
IiULL Right. And were you at the Maurin hearing for their 6,500 square foot-- ''', -
' � '-
McFLYNN Are you saying was the Monastery there or was I? �
. r
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� 87 MARCH 12,1997
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HULL Were you or the monastery. ' •
�+�- .
McFLYNN I wasdt. ��' K=
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'.�:�'
HiJLL Can I ask you why you're here for me but not for those properties which -t ., '.'
ate all part of that valley that's so important to Monasteryl 1�`•'�•
:a`:
McFLYNN I can only tell you I was contacted when the Monastery leamed of your .,°:-�'� �
appeal being set for hearing two weeks agq today,I believe,and I asked if I would :;:7.r<Y.:`-.
review your land use application file and participate,uh,because they had not known
� about the fact that ou had intended to a eal a 3,500 acre a roval and wanted 15,000 � �^
Y PP PP �;.''��: •
; square feet plus out buildings on a building envelope that is 100 yards or less from their t�•,` ' ;
i boundary. ?�`.
,�:
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' HULL I think you heard me say it at the last meeting I didn't want to build f •{
{ 15,000 square feet, ��
� 1;
McFLYNN No,but we're all sophisticated enough to know that what you want is what ��
gives your property maxunum value whether you build it or the ne�ct guy.
. H[JLL That's a bit like my deed that I got 17 years ago. I've got to live by whaYs
on the deed,not something that's heazsay.
McFLYNN WeII,I heard you say you wanted 15,000 square feet at your—in your 1
swom testimony and that's why we're here.
_ i HULL No actually--okay. Um,do you lcnow if the Monastery took an interest in
the other two properties up there,the Huffman and the Maurin property?
IMcFLYNN I have no idea and I don't know what their motivation may be.
HtJLL You made mention of Grace Huffman's property,um,that her —the
feeling that she had up there 20 years ago where she has a cabin. It's about 1,400 square ��
feet. And when you said that,I wrote down how times change because here we are 17 �
I years later. She now has a lot split of 120 acres,60 acres a piece,and the right to build �
� two 5,000 square foot homes. !�
, ± McFLYNN And that went through full public notice,pubiic hearing and yours didn't.
AULL Right.
McFLYNN And that's why we're here.
HULL Okay. ' �
�t
gg MARCH 12,1997
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McFLYNN And I presume that the County Staff had the benefit of all of those refenai j•-" •;;, .
agencies and public comments and did what they thought they should under the Code as �-'��
they will do in your case. We didn't know about that,probably,you know. I certainly !�`,.'"�,-;'
, didn't participate,Ivan, It may be that the proximity of your building envelope to their � ,, '.'
� boundary is what caught their attention. I rea[ly don't know.
i
; HiJLL Right. The land--the,my deed,the land wasn't covenanted for seasonal �r`"�� �'
�.:.� : .
use or I think we've heard enough of that from everybody here,but I just,I would not ;;_.�`<.
have signed that deed,I'm actually addressing this to the Commissioners,I would not
have signed--bought the property if it had any the restrictions that were in that`78 `�
. document,which I did not see until the road litigation that took place many,many years
�:.�,;.�. •
later. I would never had purchased the property if it had any of those limitations or with �
the limitation of not having utilities. Uh,you held np a document of the lohnson '
property. Just for accuracy,the Johnson property is on the mazket. It's not on the market ;�,
for 1.S million. It's on the mazket for$895,000.00,which is a pretty lousy retum,if she's
doing it for investment considering she pasd$100,000.00 17 years ago. She could have ��
made a lot more money buying something in towa I have just a few more things. '�
TUITE Okay,let me,let me ask this. Ivan,do you have any more questions '`T
specifically of Tim or do you want to just put this in a closing comment7
; HULL Uh,no,I think my main point was—was the Monastery at the Hu#�'man
� and the Maurin hearing.
I
! TUITE Thank you. If there's no further questions of Mr.McFlynn,uh,thank you
' very much.
3
- �
McFLYNN Thank you very much and depending on what you—oh.
IRELAND I had one question. Tim,are you fanuliar with a document called
� promissory estoppel?
--- 1 McFLYNN Yes. i�
�
. � I12ELAND Do you think that has relevance to this case? j
;
�
McFLYNN I think I should take the same position that I took with Craig's questions �
that the legal azgu--I mean this,uh,hearing struck me the last time and even more ttris '
rime like we're just creating a record and maybe I'm augmenring that record for purposes
of litigation.
TUITE Well this is a[unintelligible]. This isn't a record.
;,
; ' ���-
89 MARCH 12,1997
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McFLYNN And there are Iots of azguments that I'm sure can be made. Hopefully, ��`� �ti�'
;•'"�°
we've helped a little bit. �` �
ij�t��.<• .
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IRELAND ThaYs all I want to know.
.;,••,� .�.
T'[JITE Okay. Thank you very much. - �
lY'`
.} ,
McFLI'NN Thank you. ..;;�: ;`''�.
�-;;'
TUITE Counselor,we promised you ihe ability to do a summation. I think we '='":�i-."
said a minute and a haif. ;�:_;.�-� -;
�.. ,::. :.
j �:a..:, -
I CARVER Yeah,right,but you were just being too generous at the time. I just k,,.;; •
i wanted public record. �� ;,
i
' , � TUITE Connie? ��'
; �, .. ,
' HARVEY Uh,you know,may I said a word or two? Pm Connie-- �:�-
`:"�fe
,y.1'�
TUITE Well,hold on Connie.
. ELY Get her where she can be heard. ���
TUITE Yeah,first of all,you're new. You didn't sit through the first meeting we �
had. I know you sat through part of this. I ask you to be brief please.We've taken sworn
tesrimony from everyone that wants to make a comment in this case. You haven't taken
' that oath and I'11 ask you,do you swear to tell the truth,the whole truth and nothing but
_ � the truth7
;; HARVEY I swear to tell the truth,the whole�uth and nothing but the truth.
� TUITE Thank you. Could you speak up more or come up here.
i
_ � HARVEY Okay. I'll try to speak up. Um,I've seen sometimes that what the public 'i�
, believes has happetted is then undermined years later because people don't remember or �+
they think or the records disappeared or who knows what. But I think it's pretty darn ,�
clear what was intended and what the covenants were,that that was the understanding of
everyone who was there. And I think there's a moral obligation to the public that to A
respect it,that that was why that lot split was al]owed because it was going to be ,
primitive and it was going to be remote and it was going to be small and all those things;
it was going to be seasonal. And I wasn't at that original thing but I did sit through when
they had the discvssion at the East Sopris Road,some of those hearings. So I'm sort of
familiar with some of this issues and azguments and—and I just think we ought to be able �
to rely on these things so that the public and adjacent land owners,I'm not adjacent,but , �
, .
� '-
f
90 MARCH 12,1997 �,
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• I'm there,I own a ranch that borders Childs and the Monastery,so it's that azea. Thank < �-'''
you. ' �
i�'
,.. �.�
TUIT'E Thank you. Counselor? ,.���
� � .
CARVER Okay,um--
..,
FARRIS Come up to the table right here,sir. This chair. �"-`�
y;:'.::�
CARVER I don't Mr.Ireland's calendar here with me. "'?' �
IRELAND Neither do I. E':�.'" � '
; CARVER Contrary to popular opinion,what I'm here for is to try to avoid a lawsuit. ��.
And we want to talk practically and because one element of practicality,in light of the
, . . potential outcome of this Boazd would be a lawsuit,we'll talk that as well,briefly in both i`�
� cases. Uh,the most unportant issues presented here,particularly before this body,are �.;:; .
j policy issues,and you folks have to wrestle with it.Um,and there are some doozies that ;
, aze presented by this case. As is�ue with all very basic policy issues,the reason why �p�yP
they're so important is because they boil down to factors which affect people's lives in H'�,�i
the mosi inrimate and important ways. Here,the Hulls,the family,owns 152 acres. .
They've owned it for 17 years and they want to build a family home. When they bought ;�
' it,they had a deed that said they can build a family home. You don't build family homes
to live in half a yeaz. You live in them and thaYs what the deed said. They had worked a�
with the County cooperatively to agree upon the best location of the home. Now,if you
look at the stipulation,what the County's role here,with respect to this singte family
� home site,if s a very restricted one. The stipulation says what the County gets to approve
is not square footage,it isn't the color of the house,but the County gets to appmve is the
" building envelope. And it's simplest in this case the Hulis are agreeing to build what the
County told them to build. There isn't the slightest dispute as to where this building .�
ienvelope ought to be. It's ought to be right where ii is. And that ought to be the end of
� this. You shouldn't have been through ten hours'worth of testimony on this. But y.
obviously you're dealing with other issues and I think I have to deal with those issues
� because they may be important to you folks. !y
What the Staff did is recommend approval of the Hull application,but conditioned. The I f
• minor conditions I think have been dealt with,the way I've heard it,so we can just }
dispense with them. It looks like they really don't care about the structural fire things and �
the turn-outs have been resolved. So we've only got one problem and that's squaze .
' footage. The sole basis for restricting square footage under the Staff's position is
wildlife. If there's one thing we have established here on this record is that there is no
empirical evidence whatsoever correlating wildlife impacts with house size. So if you
were going to base your decision upon what the Staff did,you don't have a leg to stand ,.
on in court. Yow own expert said that,every other expert has said that. More 'r�
importantly than that,you don't have a good policy reason for doing that. Uh,you ought � ���-=
,� 1
91 MARCH]2,1997 r
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not to be setting policy based upon make weight arguments and that's a matce weight ' ; ,:
argument. And when you look at the kinds of evidence which has been presented in - '
today's hearing,by your wildlife exped and by your Staff,they are going well afield to �:s:`" '�•>
try to establish a correlation and they can't cut it. They're getting a Florida study which
J�'��,'�.�.
deals with houses up to 2,500 square feet. If you look at the family incomes,they go up �''.,
to$26,000.00 or$30,000.00. They have nothing—the purpose has nothing to do with '- = �
wildlife. So we've got a record here,not just a legal record,but a policy record that says �`� ''
that there is no reason from a policy perspective to limit someone's square footage on his
parcel because of wildlife. Moreover,the only wildlife rationale that you have,whether ..C` '`� '
iYs under a 1041 process or anything else,is elk calving and the testimony is that elk ����=,;.•."
don't calve here. Now there's an issue of access back and forth across calving. There's yk�:;�:
no question about that. But right here,where ihe house is,whatever iYs size will be,they :�:. �. •
don't calve. And we've located it in the best possible place. That's clear. I don't think y''' .
�, ; ..
� there's any argument with it but there's obviously still a raging policy dispute among this
--among this Board as to whether or not this County ought to be limiting square ,:;,;`a
' � footages. Um,and from an outsider's perspective,iYs a little harti for me to figure out ;;•;� °
i
I why. I mean you did it on the wning basis,15,000 square feet,and thaYs your '''
prerogative. You went to the usual ptocesses and—and,um,everybody had their input
and you've got a wne and whether or not this parcel is technically subject to a zoning or �'ir
any other P&Z type of requirements which were imposed after the court stipulation is one c ;
of those disrinctions without a difference because Mr.Hull can live with either a roach. " ��
PP .�;
- He gets to the same result. I think all you folks ought to get to the same result. That '�
being he wants to build a house. It's got to be consistent with what is appropriate for 1I
Pitkin County. IYs not going to be in excess of 15,000 square feet. Like every other
human being in this County,he does not like to gratuitously give away value that may be
of use to him or his daughter in the future. And if--if thaYs a problem,Mr.Ireland has �
been the one that's been focusing on rates of return,that's a policy issue that ought to be
_ � discussed by this Boazd. But I don't see yourselves as being the rate of return policeman
; saying too much,too little,or whatever. Um;I think all of us,as individuals,like to
maacimize the value of our properiy even though we don't do that by building it out to its
'; maximum extent. And I don't see personally anything morally reprehensible in taking
that position. Even beyond that,there's the fact that,as Mr.Hull testified,if the �.
irestriction,which is imposed upon him by the Staff recommendation,is approved by this
j Board and he doesn't overtum it on appeal,then he will have a negative rate of retum for
i his investment in this property. Even if you were looking at it only from a perspective of ;
the initial purchase price versus the current value,he would have doubled his money in !
' 17 yeazs. If you look at it from the perspective of what he has in it as his ta�c basis `
currently versus what it's worth under an unrestricted scenario,he approximately doubles }
his rate of return. We don't have a problem here with this being some kind of an �
exorbitant windfall,even if the County wanted to take the policy position that it was any
of its business,which I doubt that you do. I don't know why you would.
�
So coming to grips with this,what is the issue here? It's—as an outsider,the only thing I �.
can speculate to is that it really has to do with development impact and development xi,' `
density. But remember here what we have is a 1 SO-acre parcel with one single family - __
1
� 92 MARCH 12,1997 ��
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• usage. That was the restriction he agreed to. 1 mean,he had the right under 3tate law to % `'
get a lot split into five 35-acre parcels and develop each of them up to I S--up to at that ;T; .�.
time no development limitation. But thaYs not what we're arguing about. We've already �.�
had a five to one implosion of his development potential. But from his perspective,it ',;�,� •�•
seems as though the County has taken the position that what's the County's is the ' �°�
County's and what's his is negotiable. You know,you go from five to one and he thinks �:'<:-,, .
he's got all locked into covenants. He thinks he knows what his deal is and when he tries 'b' .;
to do something,they say,oh,not really one here. We're talking 3,500 square feet which �"' �
would just torpedo the value of your property. Now why did we introduce an appraiser ���,�- ,.
here? I mean,John is absolutely correct this isn't the takings phase of the heazing. But '"'�*' �
you've got to know the policy implications of what you're doing here and the policy k�'=':'
implications are it's a taking. It's unconstitutionaL Worse than that,iYs poor policy. ��.�� ' �
� Why would you do that? If you do in the guise of wildlife,that doesn't hold up. That's ;'.: '
what alI the expert testimony says. Are you doing it in the guise of neighborhood :
compatibility? 'fhat's pretty amorphous,from my perspective. I mean,if it so happens t��.,
' that every house out there is green and brown,dces that mean that his has to be green or �
• ;
j brown7 What does that mean? What is the neighborhood7 If you move over to ►:
Snowmass Creek,you've got houses much bigger,much more modern,much more recent �;:��°
in construction than on Capitol Creek. Does that make any difference? No,nobody can �yv�
see his house anyway. What's the point? WhaYs the neighborhood trying to preserve? �?'•���
Nothing associated with squaze footage,I can tell you that. He is willing and bas been ,�`'
willing to comply with all of the County plans for,you know,how you build these things, -
how high you can,what the construction techniques aze,and so forth. Um,thaYs what I
think is meant by your broad,general policy. There's nothing in that policy that can be �
translated into something that says that if the average square footage of a house currently
! existing in a neighborhood defined,totally azbitrarily,is X,then you have to build a
house no bigger than X. It just doesn't make any sense. No more than the color
restriction does. So I don't think you have a policy there. Uh,and I,frankly,have a lot
� � of trouble coming to grips with what your policy basis is for trying to restrict his squaze
� footage at all. I mean,I can recognize from Mr.Ireland's reactions here that he really ,�,�,
� thinks there's a policy there but I think--
i
IRELAND Don't speculate about what I'm thinking.
i �;
CARVER No,thaYs what I'm asking. '
I"
• IRELAND You're not entitled to speculate what I'm thinking. You haven't been
sworn in as a witness. If you want to take the stand,you can do that. Please,refrain from ;
speculating about my thoughts. I will appreciate it. -
, CARVER What I'm asking is to put the real policy on the table because iYs very
difficult for me to understand what the real policy is. Uh,and then we would perhaps be
able to deal with it better. The policy which was put on the table by the Staff,in a very �; ..
good faith effort to deal with what it felt this Board wanted and how it should be dealing �� _
with things,is one that we think we've addressed. We think we've addressed it � '-
I
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•: ,,;
this magnitude. �� -
�+•- �'.
Now,Mr.McFlynn has raised some other issues,which I consider to be collateral,but ., -i,�
obviously have to be addressed. And I think the easiest way to address them is to say that ;,�•�: •�.
there's a lot of agendas out here. There's agendas of neighbors,there's agendas of � .
various people,and everyone is entitled to their opinions and their agendas;there's �:':,' , r
nothing wrong with that. $ut we don't regulate legal rights based upon whether your
neighbor would prefer that your property not be developed. All of us who,like I,who ��-'� ''`
have a parceI in Grand County don't want our neighbor to develop their pazcel. As a �� y�
matter of f act,I had to just go buy that parcel to keep that from happening. ThaYs the 4;'.;?" _� .
way our system works. The point is,the point is people have very legitimate reasons for
not wanting their neighbo�to develop but that dcesn't mean that those reasons ought to �':�:1` �' '
'� be public policy. Um,what happened here is the County indeed does,let's go through '
' the history of ihis,the County wanted to restrict this stuff in all kinds of ways. It didn't �.,�.
I want the Maurins to subdivide at all,and the County entered into a lawsuit with the � :x
� Maurins chai(enging their abitity to subdivide. The County knew good and well that it i _
• was on thin legal ice. Subsequently,it fell through that ice in the Panonska case,which ��
held and ruled by the Colorado Supreme Court,that the County did not have the power to i_�:i`.
restrict subdivisions[unintelligible]which were greater than 35 acres. State law
preEmpted ttte County and that what Pitkin County had been doing up till then was in �,��j
violation of the State law. And thaYs what the Court ruled after all of this. What M'
' happened here was the County,knowing it was on untread legal ground,entered into .�
negotiations witii the Maurins. Mr.McFlynn has that exactly right. Mr.McF3ynn
presented to you their wish list. T'hey didn't get everything that they wanted on the wish i
list. They got more lots than they wanted to allow the subdivision. They got restrictions
to singfe family home sites,which they wanted. They did not get seasonal restriction and _
with ihe exception of the Adelson,of Adelson,they didn't get any other restrictions on
- � utilities or otherwise. Our legal system relies upon the end results of negotiations and
� deals being reduced to writing and if those writings have to do with legai rea[estate being
j recorded against the property: Those are your operative inshvments,not the flawed
1 memories of County Commissioners of 20 years ago. Not liaz's contest between people
saying the other guy is wrong,but whaYs in the record and whaYs in the final deal.
� That's all that Mr.Hull is asking for is the ability to get the deal he signed. And I don't
think,again,ihere's anything morally reprehensible about that.
, y Even beyond that,if you look at precisely the words that are being put in the mouths of
� these purchasers,what do they amount to. Nothing more than the expressions of much
younger peopie 20 years ago as to what right then they planned to do with the property.
None of those,by even the hearsay repetitions,as reflected in those documents presented .
by Mr.McFlynn,amount to a promise that their chan--that plans wouldn't change. The
promises were contained in the writings. ThaYs all they committed to. Their intents
were honest,open,sincerely acknowledged but neither meant to be binding nor taken to
be binding as a result of the binding instruments that were executed.
,
+ '-
94 MARCH 12,1997 �.'
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• What was the hope of the County Commissioners in the way of avoiding development in "
this valley is frankly totally irre(evant. When the County Commissioners agreed to, �`�>
stipulated to and acknowledged that there were going to have to agree with the �`S
subdivision of these parcels and put in writing that they could be developed as single • ',:;�
family home sites,now we're past the ability of the County to bar development in that ,. '.
valley,unless,of course,the Connty wants to condemn,pay for and keep it pristine,
which is its perfect right. But short of a condemnation,that water is under the bridge and
all that Mr.I-full is trying to do now is to follow through on what he bargained for in 1980 -
and what he obtained when he got those deeds. �:��%
TUITE Thank you. Any questions7 Okay,I'm going to try to take,--John,do _
you have any comrnents to make? You're looking at me with this expression. ,
� ELY Uh,real briefly. Bill,as you know,I'm not here to advocate one side or
tUe other on this particular issue. I am the legal adviser for the Boazd. As such,I point Yt
, . I certain things out to the Boazd in a continuing effort to provide advice. What we are here •
� for is stricUy an appeal of an administrative decision pursuant to Section 3-300 of the
1 Land Use Code. The appeal involves the administrative decision concerning the approval ��
of the building envelope which is required,as the Board knows now,by a previous order t
of the Pitkin County District Court. IYs clear from that previous order that this particulaz �'��
� property of Mr.Hull's was cteated in a legal fashion and was provided with a ��
� development right. And that issue is not before the Boazd. It has not been put up by the
—by the property owner,Mr.Hull. The development that is allowed on this property
pursuant to the order is not allowed pursuant to any underlying zoning,the RS-30 wne is
—exists in this particular case,but development pursuant to that court order. What the
court order allows is one single facnily home site,and accessory,agricultural uses.
Nothing more. The single family--unfortunately,as we've discussed,a single family
� home site is not a term which is defined within the order of the Court or the stipulation
" j that gave rise to the order or any of the other documents,um,that contributed to the
� issuance of the order by the Court. And as mentioned earlier,it's also not a term that �
i appeazs in the Land Use Code. So,in geat part,the task of the Boazd is to determine
iwhat a single family home site means. This was the same task t4at the Planning Office
� had,um,when it was required by the terms of this Court order to identify an envelope �•
i where the single family home site would be located. The Planning Office took that to �
� take that the home site meant just that,a site for a home and attempted to define an f
envelope that contains such a site for a home under the parameters and the policies of the `
• Land Use Code. There was nothing in the CouR order or any of the documents reflected ��
that relate to this property that would indicate the policies of the Land Use Code should E
not apply to this property. Um,unfortunately,a home site in not being defined earlier
was probably done because at the time,1980,this azea in the County was not subject to a �;
large amount of gmwth. There are indications in the accessory record,the Court Appeals � .
case,the trial coud decision involving the road vacation,the agreement signed off on by �,
Ed and Diane Adelson,that in reference to the Huffman property,as it currently existed, '�.
that ihe present intent was for a primitive type of enjoyment oFthe property,in other + �
words,a home site that entailed something less than what the current zoning allows for �
� �
95 MARCH 12,1997 �'
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, that being a 15,000 squaze foot structure. But the current zoning is pot relevant. What is ?.;t;�:`i4?
relevant is the Court order and the Court order,um,is existing somewhat by itself and the ' '=
Staffreferred to the Land Use Code in a way to de6ne what should be the site for the ;. -�;
home. It referred to policies regazding neighborhood compatibility,preservation of .'��
wildlife habitat,presetvation of wildlife itself,um,consideration of surrounding land use, x'��'.�•
consideration of surrounding publicly owned land,um,to determine that the size,as : 4 ` =.'
allowed by the adminestrative review,was appropriate at 3,500 square feet. Um,there `t' .
has been evidence,um,demonstrated to the Boazd to relate the size of the structure as
approved by the Planning Office,the Community Development Depar[ment,as being `�:;:s.:.��'
related to the impacts and the policies of neighborhood compadbility,preservation af =_�
'�:e.i�i`t"4��.
wildlife habitat,and consideration of the surrounding land uses and public land. Um,
there has not been any evidence produced for the record that the Planning Office action
constitutes a ta[ting,as Mr.Carver said. We're in agreement that this is not a takings
procedure and pechaps some day we'll be in one. But were not there ye� Uh,the
comment that the Board at the time the stipulation and ordet was entered knew it was on �:'
, thin ice,I would take exception to. The order did precede the Panonska case. The �*
E�IIQ�sk�case is a case that the County was involved in. It ultimately lost on appeal ,.
which essentially was brought about by the County's insistence that it could regulate �'�
subdivisions of pazcels of 35 acres or greater. Um,it should be remembered that the '.,,,�
County took the position that it could regulate that type of subdivision in this matter as
well as in the PanTnska matter itself and prevailed in trial court to later loose on appeal. ����
` So I don't think that the County,at the time of this procedure and this proceeding, �!
' j thought it was on thin ice and taken the position that it did tske. Um,I have nothing else ��
� to add. I would just ask you to refer to the original outline for proceedings here. I know
j the Boazd is going to need some time to consider the,um,the papers that were presented
` and consider in your own minds the testimony preferred and set the matter for a
} deliberation and decision-making.
� TUITE Uh,in an attempt to move this along with the public waiting on some
other issues,thazilc you for all your testimony. I would like to say that,and I woutd like
to recommend to the Board,thal we take this under advisement We've had a lot of '
information presented to us over the last two meetings on this issue,quite a bit today,
' And I don't think it's in the best interest of any pariy that we try to thrash out what we
j feel at this time. We have a request from Mr.McFlynn,representing the public,as to a
- i reopening of a public review. I would ask that the Boazd also take that under advisement j�
based upon consultation with out attorney,John Ely. I don't want to sit on this a long `
time. I'd like to get this back as soon as possible. I would ask that our exec¢tive session �
� next Tuesday be elongated somewhat so we could have a-- �
�i.
HARPER Start at eight? •
TUITE —good discussion. I was thinking Monday myself,but actually we look at
the time line for that that we may want to meet a little earlier and start getting in on this
because I'd like to gei something back to the applicants and to the public as soon as
,
`•-_
I
96 MARCH 12,1997
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' possible on this. Um,with that,I look to the Boazd if the would agree to that and make -
such a motion. � .�,
�,a
HARPER That we continue this—continue thison either the work session either on •�`�':;'
Monday or Tuesday as— ; •.
c.'
TUITE We would be in executive session.
�::_S i
HARPER Executive sessioa �:,'�'::.
i
TUITE To discuss what we've heazd in the last two days,correct.
��. ;i
HARPER So moved. •
ELY And I think you can conduct your delibera6ons that way. I think that what �',
• .' you need to do is put the matter over a(so to a regular meeting,a public meeting,um,so -
' that your deliberations can be heard by the affected parties and ultimately a decision be
reached in a public manner. So perhaps given that,to continue this appeal to the next :,`
regulaz meeting,which is the 26th. I'm not sure how that works with you guys. I think ��
. you've been up here twice now.
!�
. j CARVER Well,just for my clazification,there will be no further input from the
' peanut gallery here from any side;is that correct? This will be simply deliberations by
the Boazd?
J T[JITE Actually,Mr.McFlynn did ask for a review in a public venue. I think the
i Boazd has to discuss that and get back on that,just out of courtesy. I'm not—I'm not
' saying it's all over. I'd like to hear from the rest of the Boazd. No one is going to be
1 stifled. You'll have the ability of-- �
�
' CARVER The point is,if,in fact,you reopen it,we'll be given advance no6ce of that
r
� so--
i
TUITE Oh,no question about that. �'
CARVER --we know who to bring back to it. The reason why I mentioned this is
�
' � logisticaliy,Joe wouid,I'm sure,listen to it and report to us rather than having us.
ELY And typically in the past,Craig,for appeals of this nature,the Board has I '
not closed the public record pending their decision just in case the appellant,quite �;
frankly,has something else,not something repetitious,butsomething else that is
important or Staff comes up with something and responds to a question entered eazlier
heard or the Board wants some additional information on something else. It gives them
the leeway to invite that. `, ,.
- . � -:
1'
97 MARCH 12,1997
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CARVER Yeah,anyway you act is fine,as long as we get the notice,if we're N:�� `,{'
supposed to present-- �• -��''��'
. .- .
TUITE You will have sufficient time. And if you feel it isn't sufficient,we'll give '�1
you sufficient time. •��
.'..:�'
CARVER And we,consistent with what you've said,we obviously don't want to �� �!
hurry your deliberations,but from the applicanYs perspective getting this resolved in the-
� ' �:.-.
i<;.
� TCJITE We're aware of the building season coming. `:'-.,�.�`�
i CARVER Yeah. Quid pro quo. �
E
� WELLS We're going to start running into vacation time on this side and probably
on your side as well. �
I, �:
-`� TUITE Are you talking about roads,Jce,or-- "
'i
:� HARPER He thinks we get time off. �C,.
.; WELLS Like flight for life is what we're talking about. Um,so,assuming that we ,
can all be flexible on that score,we've got those non-refundable tickets coming up.
,� HARPER [UnintelligibleJ or flies7
� T[JITE Okay,do I heaz a motion from the Board to continue this to the next duly -
noticed public meeting?
i
. � FARRIS So moved.
<
i TUIT'E Second?
�
:
_ �` HARPER Second.
TUIT'E Further discussion7 All those in favor,signify by saying aye? Aye.
�
� LAMONT Aye.
.
; FARRIS Aye. -
IRELAND Aye.
HAR.PER Aye.
. +
98 MARCH 12,1997 , �`
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TUITE Opposed7 Passes unanimously. Thank you very much. At this 6me I 9; �'
would ask the pleasure of the Boazd that we go right into our regular meeting. Someone tr- •:
has to take a break. LeYs try to do it one by one so we could move this along7 �;•::;"'�
I.y..t..:J,
[END OF TRANSCRIPT.] '
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