HomeMy WebLinkAboutBocc Packet 02262014 Celestial AppealMEMORANDUM
TO: Board of County Commissioners
Regular Meetiinng�— February 26, 2014
THRU: Cindy HoubPxf�(.TommunityDevelopment Director
FROM: Suzanne Wolff, Senior Planner
RE: Roaring Fork Land & Cattle Company; JM Skyways; James Bulkley Family Trust and
Katherine Bulkley 2006 Family Residence Trust; Bruce E.Carlson Trust Appeal of
Hearing Officer Determination No. 04-2013, which Approved the Celestial Land Company
Activity Envelope, Site Plan Review, Special Review and GMQS Exemption for TDR
Receiver Site
SUMMARY: The Appellants are appealing Hearing Officer Determination No. 04-2013, which
approved the Celestial Land Company Activity Envelope, Site Plan Review, Special Review and GMQS
Exemption for TDR Receiver Site, and have requested that the BOCC overrule the Hearing Officer's
approval, "due to clear and demonstrable error, abuse of discretion, and denial of due process," based on
the following grounds:
1) Development was allowed within the highest impact areas of the avalanche Blue Zone;
2) Development was not required to avoid debris flow hazards to the maximum extent possible;
3) Significant site planning issues were deferred for resolution outside of public hearings;
4) Additional floor area was approved on a 100% constrained development site; and
5) The Hearing Officer had a conflict of interest.
The BOCC conducted a public hearing and heard testimony with regard to the appeal on November 20,
2013. At the conclusion of the hearing, the BOCC directed staff to prepare a Resolution upholding the
Neighbors' appeal. A draft Resolution is attached.
The BOCC provided Celestial and the Neighbors the opportunity to submit proposed language for the
Resolution. Letters and draft Resolutions from both are attached. The letter from Fognani & Faught
dated January 31, 2014 refers to attached additional materials that address the conditions of approval of
the Hearing Officer Determination. Staff has not included these materials in the packet to the BOCC, as
they were not part of the administrative record upon which the Determination is based..
APPELLANTS: Roaring Fork Land & Cattle Company; JM Skyways; James Bulkley Family Trust and
Katherine Bulkley 2006 Family Residence Trust; Bruce E.Carlson Trust ("Neighbors"), represented by
Glenn Horn, Gideon Kaufman and Mark Hamilton
PROPERTY OWNER/APPLICANT: Celestial Land Company ("Celestial"), represented by Stan Clauson
and John Fognani
LOCATION: Bulkley Drive off of Maroon Creek Road
ZONING/LOT SIZE: The Celestial Land parcel is zoned AR-10 and contains 35 acres.
APPEAL CRITERIA: Sec. 2-20-180 of the Code states, "An appeal is not a de novo consideration of
the merits of the development application that gave rise to the appeal. The appeal body...shall only
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reverse, modify or remand a decision on appeal if it finds that there has been a clear and demonstrable
error, abuse of discretion, or denial of procedural due process in the application of the facts in the record
to the standards of this Land Use Code."
STAFF'S DRAFT RESOLUTION: At the November 20 hearing, the BOCC directed staff to prepare a
Resolution upholding the appeal, based on two findings:
(1) The Hearing Officer had a conflict of interest due to his prior involvement with the development of
the parcel, and made a clear and demonstrable error by not recusing himself.
(2) The Hearing Officer erred in his determination that the site is an appropriate TDR receiver site to
allow additional floor area.
The draft Resolution includes findings and upholds the appeal based solely on the conflict of interest
issue. Staff consulted with the County Attorney and concluded that given the BOCC direction that the
Hearing Officer should not have reviewed and acted on the application due to a conflict of interest, then it
would be inappropriate to discriminate as to what facts the Hearing Officer should or should not have
included in the Determination. The recommended action for the BOCC is to modify the decision based
on the applicable provisions of the Code at a duly noticed public hearing, at which time the BOCC can
consider the application in its entirety and hear testimony and argument with regard to the application,
without being limited to the prior record upon which the Hearing Officer Determination was based.
STAFF RECOMMENDATION: Staff recommends that the BOCC uphold the Neighbors' appeal of
Hearing Officer Determination No. 04-2013, subject to the attached Resolution.
ATTACHMENTS:
A. BOCC Minutes 11/20/13
B. Neighbors 1/31/14 Letter & Draft Resolution
C. Celestial 1/31/13 Letter & Draft Resolution
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RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO UPHOLDING AN APPEAL OF HEARING OFFICER DETERMINATION
NO. 04-2013 BY ROARING FORK LAND & CATTLE COMPANY; JM SKYWAYS; JAMES
BULKLEY FAMILY TRUST AND KATHERINE BULKLEY 2006 FAMILY RESIDENCE
TRUST; AND BRUCE E. CARLSON TRUST
Resolution No. -2014
RECITALS
1. Roaring Fork Land & Cattle Company; JM Skyways; James Bulkley Family Trust and Katherine
Bulkley 2006 Family Residence Trust; and Bruce E. Carlson Trust ('`Neighbors") have applied to the
Board of County Commissioners of Pitkin County, Colorado ("BOCC") to appeal Hearing Officer
Determination No 04-2013, which approved the Celestial Land Company ("Celestial") Activity
Envelope, Site Plan Review, Special Review and GMQS Exemption for TDR Receiver Site.
2. The Celestial parcel is located on Bulkley Drive off of Maroon Creek Road, and is more specifically
described in Exhibit A.
3. The parcel is zoned AR-10 and contains 35 acres.
4. The Celestial parcel was created via the State's subdivision exemption that allows for creation of 35+
acre parcels exempt from County subdivision review. The BOCC granted 1041 hazard review,
conceptual submission, special review and GMQS exemption approval to the prior owner of the Celestial
parcel, pursuant to Resolution No. 036-2002. The 1041 site plan was recorded in Plat Book 63 at Pages
6-9. The vested rights expired on March 13, 2005. The BOCC granted a new approval for 1041 hazard
review, conceptual submission, special review and GMQS exemption, pursuant to Resolution No. 013-
2006. The vested rights expired on February 16, 2009. The 2002 and 2006 approvals allowed for the use
of two transferable development rights ("TDRs"): one for the initial development right of 5,750 square
feet and one for an additional 2,500 square feet, for a total of 8,250 square feet of floor area. The
approval to use a TDR for the initial development right did not lapse when the vested rights expired.
5. In 2009 Celestial submitted an application for approval of Activity Envelopes, Site Plan Review, Special
Review and GMQS exemption to utilize three additional TDRs for a total of 15,000 square feet of floor
area to construct a single family residence.
6. On August 5, 2010, following duly noticed public hearings, the then -Hearing Officer, Jim True, issued
Determination No. 05-2010, in which he denied the Special Review and GMQS Exemption for a TDR
receiver site, approved the Activity Envelope, and continued the Site Plan Review.
7. Celestial and the Neighbors cross -appealed Determination No. 05-2010. Celestial sought to overturn
the denial of its request to transfer additional TDRs. The Neighbors sought reversal of the approval
of the Activity Envelope.
8. Pursuant to Resolution No. 061-2011, the BOCC denied the Applicant's appeal and upheld the
Hearing Officer's denial of Special Review and GMQS Exemption to utilize three TDRs for a total of
15,000 square feet of floor area.
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Resolution No. -2014
Page 2
9. Pursuant to Resolution No. 062-2011, the BOCC upheld the Neighbors' appeal of the Hearing
Officer's approval of the Activity Envelope as proposed and the location of the proposed
development within the envelope and remanded the Activity Envelope to the Hearing Officer with
direction to develop additional facts to determine whether or not a better alternative location for
development is present on the property that represents an increase in safety for the use of the Celestial
property as well as the surrounding properties.
10. On June 8, 2011, Celestial filed a legal action in the Pitkin County District Court, Case No.
2011CV148, to challenge the BOCC's denial of its application to transfer additional TDRs.
11. On February 7, 2012, Pitkin County entered into a Settlement Agreement with Celestial that allowed
Celestial "to introduce a new proposal to apply TDRs to increase the square footage of the residential
structure up to 15,000 square feet based on changed designs, additional engineering and other
modifications to the Site Plan that have occurred since the Hearing Officer's review in May 2010" as
part of the continued proceedings on the Activity Envelope.
12. On October 1, 2012, Celestial submitted an amended application requesting Activity Envelope, Site
Plan Review and Special Review approval for a Transferable Development Right receiver site to
utilize two additional TDRs for a total of 13,250 square feet of floor area to construct a single family
residence and an attached caretaker dwelling unit. Celestial also requested to establish new activity
envelopes in addition to the previously approved building envelope to encompass all development,
including the residence, debris flow and avalanche mitigation structures, debris flow basin, driveway,
on -site wastewater treatment system, well, landscaping and grading.
13. Jim True resigned as the Hearing Officer after being hired as City Attorney for the City of Aspen in
February, 2012. Pitkin County subsequently selected Tom Smith to serve as the County's new
Hearing Officer. On November 6, 2012, Mr. Smith notified the parties by email that he would be
serving as the new Hearing Officer in these proceedings. On November 14, 2012, the Neighbors filed
a written motion requesting that Mr. Smith recuse himself from further proceedings, and that an
alternate hearing officer be appointed. This motion was filed because of Mr. Smith's prior
representation as a private land use attorney of Rick and Landon Deane, Celestial's predecessors -in -
interest, at the time that the Celestial parcel was created and the County granted the initial land use
approvals for the parcel (2002). Mr. Smith entered a written order denying the Neighbors' recusal
request on November 26, 2012.
14. Mr. Smith heard the application at a duly noticed public hearing on May 2, 2013, at which time both
Celestial and the Neighbors presented evidence and testimony with respect to the application.
15. On May 23, 2013, Mr. Smith issued Determination No. 04-2013, which approved Celestial's
application with conditions.
16. The Neighbors appealed Mr. Smith's decision pursuant to Sec. 2-20-180 of the July 2006 Pitkin
County Land Use Code ("Code"), and requested that the BOCC overrule the Hearing Officer's
approval, "due to clear and demonstrable error, abuse of discretion, and denial of due process," based
on the following grounds:
A. Development was allowed within the highest impact areas of the avalanche Blue Zone;
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Resolution No -2014
Page 3
B. Development was not required to avoid debris flow hazards to the maximum extent possible;
C. Significant site planning issues were deferred for resolution outside of public hearings;
D. Two additional TDRs were allowed to be transferred in order to authorize additional floor area on a
100% constrained development site; and
E. The Hearing Officer had a conflict of interest.
17. The BOCC heard this request at a duly noticed public hearing on November 20, 2013, at which time
evidence and testimony was presented with respect to the appeal. The BOCC closed the public
hearing and directed staff to prepare a written Resolution upholding the Neighbors' appeal. The
matter was then continued for further deliberations.
18. On February 26, 2014 the BOCC reconvened at a scheduled public meeting to consider the
Resolution.
19. The Land Use Code provides the following standard of review for an appeal:
A. Sec. 2-20-180(g) of the Code states, "An appeal is not a de novo consideration of the merits of the
development application that gave rise to the appeal. [The BOCC] shall only reverse, modify, or
remand a decision on appeal if it finds that there has been a clear and demonstrable error, abuse
of discretion or denial of procedural due process in the application of the facts in the record to the
standards of the Land Use Code."
B. Sec. 2-20-180(h)(1) of the Code provides the following with regard to the Decision on Appeal,
"Based on the testimony heard at the meeting and the record, the Board may affirm, modify or
reverse the decision [of the Hearing Officer], based on the criteria of subsection (g) above or may
by resolution remand the matter to [the Hearing Officer] with directions for future action."
20. The standards for conflicts of interest regarding county hearing officers are the same as those
applicable to judges in Colorado. Venard v. Dept. of Corrections, 72 P.3d. 446, 449 (Colo. App.
2003). Recusal is required "in any proceeding in which the judge's impartiality might reasonably be
questioned." Colo. Code of Judicial Conduct Rule 2.11(A); see People v. Gallegos, 251 P.3d 1056,
1063 (Colo. 2011) (holding that, though a judge may be able to act impartially, disqualification is
nonetheless appropriate where a reasonable observer might have doubts about the judge's
impartiality).
21. The standard for granting a motion for disqualification goes beyond a search for actual bias, and
instead requires disqualification of any judge whose impartiality might reasonably be questioned.
C.J.C. 2.11(A). Goebel v. Benton, 830 P.2d 995 (Colo. 1992).
22. Based upon submittals by the Neighbors, as well as the Hearing Officer's written order denying the
Neighbors' motion for recusal, the record is clear that Mr. Smith previously advocated in 2002 for
development entitlements for the Celestial property when it was owned by Rick and Landon Deane,
including the use of two TDRs to allow potential future development of an 8,250 square foot home
within the same activity envelope now requested by Celestial. The BOCC finds that a reasonable
observer would have doubts about Mr. Smith's ability to impartially adjudicate to what extent and
under what additional conditions development should be allowed within the same area where Mr.
Smith previously advocated for development entitlements. The BOCC therefore concludes that Mr.
Smith had a conflict of interest in this matter and that his failure to grant the Neighbors' motion for
recusai was a clear and demonstrable error.
0U0005
Resolution No. -2014
Page 4
NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby upholds the Neighbors'
appeal of Hearing Officer Determination No. 04-2013, and determines that it is appropriate pursuant to
Sec. 2-20-180(h)(1) of the Code for the BOCC to modify the decision based on the applicable provisions
of the Land Use Code at a duly noticed public hearing, at which time the BOCC can consider the
application in its entirety and hear testimony and argument with regard to the application, without being
limited to the prior record upon which the Hearing Officer Determination was based.
NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 7th day
of November, 2013.
APPROVED on the 26`h day of February, 2014.
ATTEST:
Jeanette Jones
Deputy County Clerk
APPROVED AS TO FORM:
John Ely,
County Attorney
P054-13; PID 273521400004
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By
Robert A. Inner, Jr., Chair
Date
APPROVED AS TO CONTENT:
Community Development Director
uO00U
ACTION: Commissioner Richards moved to approve the second reading and public
hearing of Ordinance Approving the Purchase of Aspen View Condominiums Unit 304
for the Pitkin County Employee Housing Inventory and Authorizing the Chair to Execute
the Necessary Documents. Commissioner Child seconded the motion. Motion passed
unanimously with Commissioners Newman, Ittner, Richards, Owsley and Child voting
aye.
LAND USE CONSENT PUBLIC HEARINGS:
Reading and Public Hearing of Resolution Denying an Appeal by Roaring Fork
Land & Cattle Company/JM Skyways/James Bulkley Family Trust and Katherine
Bulkley 2006 Family Residence Trust/Bruce E. Carlson Trust and Upholding
Hearing Officer Determination No. 04-2013, which Approved the Celestial Land
Company Activity Envelope, Site Plan Review, Special Review and GMQS
Exemption for TDR Receiver Site — MOTION TO DIRECT STAFF TO PREPARE'A
RESOLUTION UPHOLDING THE APPEAL WITH TWO FINDINGS OF FACT AND
CONTINUE THIS ITEM TO A SPECIAL MEETING ON JANUARY 14, 2014
Staff: Suzanne Wolff, Senior Planner
Appellants: Roaring Fork Land & Cattle Company/JM Skyways/James Bulkley
Family Trust and Katherine Bulkley 2006 Family Residence Trust/Bruce E. Carlson
Trust ("Neighbors"),
Representatives: Glenn Horn, Gideon Kaufman and Mark Hamilton
Property Owners: Celestial Land Company
Representatives: Stan Clauson, John Fognani, and Jack Kaufman
DIRECTION TO STAFF: Commissioner Richards moved to direct staff to prepare a
Resolution upholding the appeal with two findings, as follows, and continue to a Special
Meeting to be held on January 14, 2014:
1. That the Hearing Officer made a clear and demonstrable error by not avoiding
the Conflict of Interest and not recusing himself from hearing this matter when
he has had past business with the parcel and its land use proceedings,
specific to pursuing TDRs, and a similar building site for this parcel.
2. That the Hearing Officer made a clear and demonstrable error by not
recognizing that this is not an appropriate receiving site for additional TDRs
because it does not comply with Section 1-60-90 Special Review Criteria for
Transferable Development Rights.
Commissioner Owsley seconded the motion. Motion passed unanimously with
Commissioners Newman, Ittner, Richards, Owsley and Child voting aye.
ADJOURNMENT:
ACTION: Commissioner Owsley moved to adjourn the Regular Meeting at 6:15 PM.
Commissioner Richards seconded the motion. Motion passed unanimously with
Commissioners Newman, lttner, Richards, Owsley and Child voting aye.
BOARD OF COUNTY COMMISSIONERS 5 REGULAR MEETING NOVEMBER 20, 2013
000007
Respectfully submitted,
A/ 1,,,y,(
can
Cler • the Board of C• . 'ty Commissioners
/ '
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Jeanette Jones
l� k to the Board of
Gorge N:wman
Chair of the Board o County Commissioners
aunty Commissioners
glbocclminutes120131reg111202013
BOARD OF COUNTY COMMISSIONERS 6 REGULAR MEETING NOVEMBER 20, 2013
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FOGNANI
Via Hand Delivery and E-Mail
FAUGHT,PLLC
.filorney, •,r La-r•
January 31, 2014
John M. Ely, Esq. (iohne@co.pitkin.co.us)
Pitkin County Attorney
530 East Main Street, Suite 302
Aspen, Colorado 81611
Ms. Suzanne Wolff, Senior Planner (suzanne.wolff@co.pitkin.co.us)
Pitkin County Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Re: Proposed Resolution of Board of County Commissioners of Pitkin County
Dear Mr. Ely and Ms. Wolff:
Celestial Land Company Limited ("Celestial") hereby provides for transmittal to the
Board of County Commissioners of Pitkin County ("Board") this letter and the attached
proposed Resolution of the Board of County Commissioners ("proposed Resolution") denying
the appeal of Hearing Officer Determination No. 04-2013 ("Determination") by Roaring Fork
Land & Cattle Company, JM Skyways, Inc., the James Bulkley Family Trust and Katherine B.
Bulkley 2006 Family Residence Trust, and the Bruce E. Carlson Trust (collectively, the
"Opponents"). The County Attorney of Pitldn County, John Ely, invited Celestial to submit the
proposed Resolution for the Board's consideration when it reconvenes the hearing of this matter
on February 26, 2014.
The proposed Resolution contains the findings of fact and conclusions of law that the
Board will need to incorporate into its own final Resolution if the Board intends to base its
decision on the administrative record and in accordance with the Pitkin County Land Use Code
("Land Use Code" or "Code"), including the standard of review applicable to the Board's
evaluation of the Hearing Officer's unusually thorough and well -supported Determination.
These findings of fact and conclusions of law in the proposed Resolution are fully
supported by the overwhelming weight of evidence in the administrative record (evidence which
anyone who is familiar with the administrative record knows the Opponents have never honestly
or accurately rebutted). It is the same evidence upon which the Hearing Officer based his own
Determination, and includes the following key points, none of which can be legitimately
disputed or denied:
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FOGNAN1 &FAUGHT,PLLC
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 2
1. From a risk perspective, the best available location for Celestial's proposed residence
(factoring in both debris flow and avalanche hazards) is Celestial's approved site. At
great expense and over an extensive period of time, Celestial carefully undertook
extensive scientific and engineering studies, with peer review, to establish and support
this critical fording, thus directly answering the BOCC's question under Resolution No.
62-2011 as to "whether or not a better alternative location for development is present on
the property that represents an increase in safety for the use of Celestial property as well
as the surrounding properties."
2. The risks posed by geologic hazards in the approved location can be fully mitigated using
common, time -tested techniques that are routinely used in Pitkin County and elsewhere in
Colorado and around the world.
3. The size of the proposed residence does not impact the amount of mitigation required; an
8,250 square foot house requires the same degree of mitigation as a 13,250 square foot
house.
4. The degree of mitigation required at the so-called alternate location will be no less than
that required at the approved location. In fact, the alternate location would require more
intensive mitigation than the approved location, but would not provide any meaningfully
greater degree of safety.
5. Celestial's planned development in the approved location will have no negative impact
on any of Celestial's downfan neighbors.
6. Development in Celestial's approved location will provide downfan properties, including
Bulkley Road and the Pritzkers' barn and caretaker unit, increased protection from
existing mud and debris flow hazards. This is not true in the alternate location.
7. The proposed residence will not injure the value of the abutting properties. The
development's award -wining design complements the natural landscape by conforming
to the existing geography and topography and utilizing earth -tone colors and natural
materials. The design of the residence involves normal site grading. The residence will
have the visual impact of a much smaller house, and in fact will be much less visible than
most of the existing and recently approved neighboring structures, including the
Pritzkers' massive development next door.
8. The proposed residence utilizes architectural techniques that minimize its visual impact
on adjacent properties and from Maroon Creek Road. The mass of the structure, which
utilizes earth -tone colors and natural materials, is proposed to be broken into a series of
smaller forms, the facades of which are proposed to be articulated, and the roofline of the
structure will be broken and staggered. No red roofs will be utilized.
0U 010
FOGNANI &FAUGHT,PLLC
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 3
9. The proposed residence has been sited so as to make maximum use of the natural
contours and existing vegetation in the area. The residence will not project above a
ridgeline nor will it silhouette against the sky. It will be roughly half the height of the
adjacent leafy canopy and less than half the height of the nearby pine trees. It will be
substantially below the prescribed height limit of 28 feet in most areas and does not
exceed the height limit at any point.
10. The landscape plan provides for revegetation and reforestation utilizing native or similar
horticultural material. All replacement of vegetation will be made during the first
planting season after completion of construction. Vegetation will be replaced with
vegetation that will reach similar density and height to the removed vegetation within two
years following the completion of construction. Topsoil will be removed and saved prior
to any grading or excavating and replacement of topsoil and revegetation will occur after
completion of construction.
11. The above -grade portion of the proposed house will be far smaller than an 8,000 square
foot house, a footprint that was identified by the previous Hearing Officer, Jim True, as
appropriate for the site.
12. The proposed house will utilize a significant portion of the additional square footage
from the use or application of the TDRs (approx. 2,000 square feet) to provide a subgrade
parking area. By removing the impacts of headlight glare and sun glare off of
windshields, as well as concealing parked cars, the proposed residential use will present
minimal impacts to the surrounding structures and will support the rural setting of the
area.
13. The use of TDRs for this site plan is compatible with the character of surrounding land
uses. The abutting properties are all large lot single family homes and the proposed
development will be much less visible than all neighboring properties.
14. View simulations have been provided from Maroon Creek Road which illustrate that the
proposed residence, including mitigation structures, is virtually invisible to the casual
observer and only apparent with magnification and a level of great scrutiny. The
particular claim by the Opponents that the proposed avalanche and debris flow mitigation
trough will look like a "half -pipe" is especially ridiculous. At bottom, the proposed
development's visual impacts will be far less than those of recently approved structures
on neighboring parcels which present a much greater visual impact, like the Pritzker
development next door.
All of this evidence and more was provided, and fully supported, in the administrative
record upon which the Hearing Officer relied in making his Determination. None of this
evidence was ever legitimately or credibly rebutted by the Opponents. The Opponents disagree
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FOGNANI &FAUGHT,PILC
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 4
with this, of course, but mere disagreement is not a basis for denying Celestial the right to
develop its own property in a manner that has been conclusively shown to comply with all
applicable Land Use Code standards and requirements.
The Opponents in fact are the last people from whom anyone should take advice
regarding compliance with the Land Use Code. The Pritzkers built a 15,000 square foot house
directly in the middle of a debris flow area in direct disregard of and in conflict with the Land
Use Code when other areas on their 180-acre property were clearly available outside the debris
flow area. Still, they built in the debris flow to enhance their view of the Pyramid Peak. In
completing their development, the Pritzkers violated the Land Use Code again by failing to
adhere to the landscape plan they had submitted to the County with respect to the number of
trees approved for planting on the Pritzker site. That violation of their landscape plan actually
required a separate hearing and resolution before the BOCC in October 2010. Not to be outdone,
the Bulkleys trespassed several times on Celestial's property to divert, modify and re-channelize
the ephemeral stream, with the most recent effort after a storm event in 2012. In doing so, in
violation of the Code and without any form of County approval, the Bulkleys altered the natural
course of the ephemeral stream after the storm event in order to divert storm water away from
their property and onto neighboring properties, including Celestial's property and property
owned by the Hoffbergers. Although the County filed a Notice of Violation in regard to that
unauthorized action after numerous complaints from Celestial and requests for County action and
enforcement, the streambed that was altered by the Bulkleys' actions was never returned to its
natural, post -storm condition or course. For their part, the Murdochs built an illegal wall in the
middle of the same debris flow affecting Celestial and the Bulldeys. The wall, which was not
built in compliance with the Land Use Code or subject to any form of County approval, was built
to divert storm flow and debris away from the Murdoch's residence. It was constructed initially
to 18 inches and increased later to 30 inches. No action to date has been taken by the County,
however, to address the violation, although Celestial has requested that action be taken by the
County in a letter dated October 3, 2013, which is also part of the administrative record in this
matter.
In contrast to its neighbors, Celestial has been meticulous in planning, engineering and
designing its proposed residence, applying at all times the highest standards of professionalism
and care. Celestial has ensured that its proposed development will fully comply in every respect
with the Land Use Code. It has proactively set out to address all legitimate issues and concerns
regarding its plans raised by the County, the Colorado Geological Survey and even the
Opponents. This includes most recently Celestial's efforts to ensure that all of the conditions of
approval set forth in the Hearing Officer's Determination can and will be fully met as evidenced
by the submittal to the County of detailed, post -hearing engineering and expert reports, findings
and conclusions provided after yet additional detailed work.
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FOGNANI &FAUGHT,PLLC
I Oh
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 5
More specifically, as described further in the proposed Resolution, Celestial prepared and
submitted by letter to Suzanne Wolff dated December 4, 2013, additional materials necessary to
address the conditions of approval specified in the Hearing Officer's Determination, including:
• Drainage Report for Celestial Residence at Bulkley Drive, dated 31 October 2013
• Grading Plan Memorandum, dated 30 October 2013
• Avalanche Hazard Analysis, dated 31 October 2013
• Architectural plans entitled Celestial Residence, dated 22 October 2013
• Planting Plan, Grading Plan, and Illustrative Site Plan, dated 22 October 2013
This submittal is supplemented by a peer review letter dated November 5, 2013, to Suzanne
Wolff and Tom Smith from Dr. Andrew Earles of Wright Water Engineers, Inc., providing
observations and comments regarding the analysis of alluvial fan flooding hazards and mitigation
measures performed by Tetra Tech, Inc. These additional materials, including Dr. Earles' letter,
not only validate the Hearing Officer's decision in this matter, they further belie the Opponents'
alleged concerns regarding Celestial's plans. We encourage the Board to review these materials
carefully and in the context of the thorough and extensive administrative record upon which the
Hearing Officer made his Determination. A Resolution adopted by the Board that fails to
recognize this administrative record or fails to provide any legitimate basis for concluding that
the Hearing Officer somehow abused his discretion or erred in determining that, based on the
record, Celestial's land use application should be approved with conditions cannot be defended.
We would also encourage the Board to review the "evidence" that the Opponents have
submitted in this matter, such as it is, and compare it to the scientifically tested, analyzed, refined
and peer -reviewed information and analysis provided by Celestial in support of its application.
By making that comparison, it will immediately become apparent to the Board that the Hearing
Officer was more than justified in making his Determination. That said, we must also ask that the
Board disregard and exclude the information and testimony introduced by the Opponents during
the November 20, 2013 hearing (in direct contravention of the parameters clearly established by
the Board at the hearing's outset) that constituted new materials that were not part of the
administrative record upon which the Determination is based. These materials include certain
illustrations by the Opponents' consultant, Dr. George Annandale (erroneously discussing
redirection of flow and the debris basin being 5x too small) and an avalanche trough section
showing an RFTA bus inside the Buttermilk "half pipe." There was also an avalanche power
point where Art Mears produced a new model of the avalanche hazard. All such materials were
improperly introduced and must be stricken from the record.
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FOGNANI &FAUGHT,PLLC
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 6
Finally, it has unfortunately become necessary to address the preposterous suggestion that
the Determination should be reversed on the basis of a purported conflict of interest, or the
appearance thereof, on the part of the Hearing Officer. Quite frankly, this issue is clearly being
presented as pretext for the Board to invalidate a thoroughly considered, carefully prepared and
fully supported Determination that, notwithstanding its unassailability, some individuals would
just as soon not let stand.
As an initial matter, the Board must understand that, "[a]bsent a personal, financial, or
official stake in the outcome evidencing a conflict of interest on the part of the decisionmaker, an
adjudicatory hearing is presumed to be impartial." Venard v. Dept. of Corrections, 72 P.3d 446,
449 (Colo. App. 2003). The Hearing Officer had no such personal, financial or official stake in
the outcome of the hearing (see Order on Motion for Recusal, p.1), and the Opponents have
offered no evidence to overcome the presumption that the hearing was impartial. They cannot,
because there is no such evidence. The hearing was, and is presumed to be, impartial.
Moreover, to the extent that a hearing officer is to be treated as a judge with respect to
recusal standards, it must be recognized that a "trial judge's decision whether to disqualify
himself or herself is discretionary and will not be reversed unless an abuse of discretion is
shown." Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244, 245 (Colo. 2007), quoting
Zoline v. Telluride Lodge Ass 'n, 732 P.2d 635, 639 (Colo. 1987) (emphasis added). The
Opponents have shown no such abuse of discretion by the Hearing Officer, because there was
none. In short, there is no evidence that the hearing was not impartial or that the Hearing Officer
in any way abused his discretion by refusing to disqualify himself.
Notwithstanding the complete absence of any evidence that the Hearing Officer was
anything other than fair and impartial during the entire hearing process, the Opponents have
nonetheless asserted that the actual fairness and impartiality of the Hearing Officer is irrelevant
because recusal is appropriate if there is even the mere "appearance of bias or partiality."
Opponents' Motion for Recusal, p.2 (citing People v. Gallegos, 251 P.3d 1056, 1063 (Colo.
2011) and falsely claiming that the "holding" of that case was that "disqualification is
nonetheless appropriate where a reasonable observer might have doubts about the judge's
impartiality," even though no such language is contained in that opinion and its actual holding
concerns neutrality requirements arising under Fourth Amendment guarantees regarding
unreasonable searches and seizures).
Setting aside the Opponents' slightly "fast and loose" utilization of case law to support
their arguments, there is indeed legal authority for the proposition that "a judge should avoid
`impropriety and the appearance of impropriety in all [her] activities,' C.J.C. Canon 2, and
should `disqualify [herself] in a proceeding in which [her] impartiality might reasonably be
questioned,' C.J.C. Canon 3(C)(l)." Venard v. Dept. of Corrections, 449. The key point,
however, is that impartiality must be "reasonably" questionable.
UUuO14
FOGNANI &FAUGHT,PLLC
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 7
There are no circumstances here involving the Hearing Officer to create any reasonable
question that he may not be impartial. The Opponents, however, are not relying on a "reasonable
observer" standard. They are relying on a "biased observer" standard, hoping no one will notice
the difference. Of course, Celestial is not an impartial observer either, but the County Attorney,
who is not a partisan here, was aware of the facts and circumstances surrounding this matter, and
he perceived no problems or questions about the Hearing Officer's continued involvement. In
fact, we believe he was as shocked as Celestial's representatives were when the Board appeared
to be giving credence to the Opponents' specious recusal arguments during the November 20,
2013 hearing since he appointed the Hearing Officer relying undoubtedly on his credentials,
qualifications and objectivity.
In any event, a motion to disqualify such as that submitted by the Opponents in
November 2012 must be accompanied by a "verified affidavit alleging conduct and statements
on the part of the [Hearing Officer] which, if true, show bias or prejudice or the appearance of
bias or prejudice...." Goebel v. Benton, 830 P.2d 995, 998 (Colo. App.1992); see also Venard v.
Dept. of Corrections, 449. Further, "[t]he motion and affidavits are legally adequate if they
`state facts from which it may reasonably be inferred that the [Hearing Officer] has a bias or
prejudice that will prevent him from dealing fairly' with the party seeking recusal." Goebel, 999
(citations omitted, emphasis added). The Opponents provided no such affidavit, and the "facts"
suggested in their motion are far from creating a reasonable inference that the Hearing Officer
suffered from some bias or prejudice that would prevent him from dealing fairly with the
Opponents. Absent the Opponents' fulfillment of these basic, minimal requirements, the Hearing
Officer was perfectly justified in exercising and relying on his own judgment and discretion. The
Opponents' arguments to the contrary are nothing less than a shameful subterfuge meant to give
the Board a convenient form of "cover" to invalidate a decision that cannot otherwise be
legitimately disputed.
We respectfully request that this letter and the proposed Resolution and Appendix
attached hereto be provided to the Board. We welcome and look forward to the opportunity to
discuss the proposed Resolution with the Board at the reconvened hearing later this month. In the
meantime, please do not hesitate to contact us if you have any questions or require any additional
information.
Very truly yours,
John D. Fognani
of FOGNANI & FAUGHT, PLLC
Enclosure
OUL01'6
FOGNANI &FAUGHT,PLLC
f1 T,0: t .1,I Gpi
John Ely, Esq.
Ms. Suzanne Wolff
January 31, 2014
Page 8
cc: Rob Ittner, BOCC Chair
Steve Child, BOCC Vice -Chair
Rachel Richards, BOCC
George Newman, BOCC
Michael Owsley, BOCC
Mr. Stan Clauson
Mr. Jack Kaufman
Michael T. Hegarty, Esq.
00003.6
RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, DENYING AN APPEAL BY ROARING FORK LAND & CATTLE COMPANY/JM
SKYWAYS/JAMES BULKLEY FAMILY TRUST AND KATHERINE BULKLEY 2006 FAMILY
RESIDENCE TRUST/BRUCE E.CARLSON TRUST AND UPHOLDING HEARING OFFICER
DETERMINATION NO. 04-2013, WHICH APPROVED THE CELESTIAL LAND COMPANY
ACTIVITY ENVELOPE, SITE PLAN REVIEW, SPECIAL REVIEW, AND GMQS EXEMPTION
FOR TDR RECEIVER SITE
Resolution No. -2014
RECITALS
1. Roaring Fork Land & Cattle Company/JM Skyways/James Bulkley Family Trust and Katherine
Bulkley 2006 Family Residence Trust/Bruce E. Carlson Trust ("Neighbors") have applied to the
Board of County Commissioners of Pitkin County, Colorado ("BOCC") to appeal Hearing Officer
Determination No. 04-2013, which approved the Celestial Land Company Activity Envelope, Site Plan
Review, Special Review and GMQS Exemption for TDR Receiver Site.
2, The Celestial Land Company ("'Celestial") parcel is located on Bulkley Drive off of Maroon Creek
Road, and is more specifically described in Exhibit A.
3. The parcel is zoned AR-10 and contains 35 acres.
4. Celestial submitted an application in 2009 for approval of Activity Envelopes, Site Plan Review,
Special Review and GMQS exemption to utilize three additional TDRs for a total of 15,000 square feet of
floor area to construct a single family residence. In Determination No. 05-2010, the Hearing Officer denied
the Special Review and GMQS Exemption for a TDR receiver site; approved the Activity Envelopes as
proposed; and continued the Site Plan Review. Celestial and the Neighbors appealed the Determination.
Pursuant to Resolution No. 061-2011, the BOCC denied the Applicant's appeal and upheld the Hearing
Officer's denial of Special Review and GMQS Exemption to utilize three TDRs. Pursuant to Resolution
No. 062-2011 the BOCC upheld the Neighbors' appeal of the Hearing Officer's approval of the Activity
Envelope as proposed and the location of the proposed development within the envelope and remanded the
Activity Envelope issue to the Hearing Officer with direction to develop additional facts to determine
whether or not a better alternative location for development is present on the property that represents an
increase in safety for the use of the Celestial property as well as the surrounding properties.
5. In response to a judicial appeal of Resolution No. 061-2011, the BOCC entered into a Settlement
Agreement with Celestial. The BOCC agreed that as part of the remanded Activity Envelope proceedings
before the Hearing Officer, Celestial would be allowed "to introduce a new proposal to apply TDRs to
increase the square footage of the residential structure up to 15,000 square feet based on changed designs,
additional engineering and other modifications to the Site Plan that have occurred since the Hearing
Officer's review in May 2010." In the Settlement Agreement, the BOCC also agreed that Celestial's "new
proposal to apply its TDRs to increase the square footage of the residential structure is procedurally proper
and appropriate to raise in conjunction with the remanded issue of the Activity Envelope, thus vesting the
Hearing Officer with the authority to consider Celestial's new proposal as submitted."
6. Celestial submitted an amended application on October 1, 2013, requesting Activity Envelope, Site Plan
Review and Special Review approval for a Transferable Development Right receiver site to utilize two
additional TDRs for a total of 13,250 square feet of floor area to construct a single family residence and
attached caretaker dwelling unit. The Applicant also requested new activity envelopes in addition to the
OPP'
Resolution No. -2014
Page 12
previously appro ed building envelope to encompass all development, including the residence, debris flow
and avalanche mitigation Itructures, debris flow basin, driveway, ion -site wastewater treatment system,
well, landscaping and 'grading. Celestial provided extensive engineering and scientific evidence that the
proposed Activity Enveloiie could be fully mitigated in accordance with the Pitkin County Land Use Code,
and that the proposed size of the residence would not increase or measurably affect the amount of
mitigation required. Celestial also provided engineering peer review of all engineering undertaken in
regard to the Celestial project and written reports and testimony in regard thereto.
7. A new Hearing 0 ficer appointed by the County considered the application at an extensive duly -noticed
public hearing on May 2, 013, in which both sides as well as the public had ample opportunity to testify
and be heard. At duly -noticed follow-up hearing on May 23, 2013, the Hearing Officer issued
Determination No. 04-201 0, approving the application with certain enumerated conditions.
8. The Hearing Officer Determination responded fully to all mandates from the BOCC as detailed in Recital
#4 above, and conclusively determined that there was not a better alternative location on the property for
development. M reover, the Hearing Officer determined that granting Special Review for the use of TDRs
for additional flo r area would not affect the mitigation required for the Celestial project and could
reasonably be gr ted.
9. In their current ap
demonstrable erne
allegations:
A. Develops
B. Develops
C. Significa
D. Addition
E. The Hew
peal, the1Neighbors assert that the Hearing Officer's approval presented "a clear and
r, abuse of discretion and denial of procedural due process," based on the following
1
Went was allowed within the highest impact areas of the avalanche Blue Zone;
Went was not required to avoid debris flow hazards to the maximum extent possible;
nt site planning issues were deferred for resolution outside of public hearings;
al floor drea was approved on a 100% constrained development site; and •
ing Offi i er had a conflict of interest.
10. For the reasons st ted hereiin, the BOCC finds that the Neighbors have failed to demonstrate sufficient
grounds to justify the allegations stated above or their appeal of the Hearing Officer's Determination.
II. County Conununi Development staff provided an initial memorandum to the BOCC stating that the
Hearing Officer did not e i, abuse his discretion or deny due process to anyone in making his findings and
conclusions based on the administrative record before him. The Hearing Officer's participation in this
matter was specifically ev9luated by the County Attorney of Pitkin County prior to the Hearing Officer
rendering his Detrminati9n. The County Attorney determined that the Hearing Officer did not have a
conflict of interest and coulld proceed with his review of Celestial's amended application. When questioned
by this Board, the same acknowledgment was made by the County Attorney at the BOCC hearing on
December 20, 2013.
12. Celestial has prov ded to the County Community Development staff a written response addressing each of
the conditions of pproval Contained in Section E, Approval with Conditions, of Determination No. 04-
2013. Celestial's esponseIto the conditions of approval confirms the appropriateness and thoroughness
with which the Hearing Of leer's Determination was rendered and the basis on which the Celestial project
can readily meet Il applicable requirements of the Pitkin County Land Use Code.
13. Celestial's respon e to the Fonditions of approval is critical information in light of the deliberations
regarding the Neighbors' appeal and the assertions they have made regarding the purported clear and
Resolution No. -2014
Page 13
demonstrable error, abuse of discretion and denial of procedural due process. The detailed response is
attached, among other materials, in the Appendix to this Resolution.
14. Celestial has fully addressed the Hearing Officer's conditions of approval through the submission of
various materials. An appendix is made a part of this Resolution containing the full copies of these
documents. In brief, these documents include the following:
A. In accordance with the Pitkin County Water Courses and Drainage criteria, the Drainage Report
for Celestial Residence at Bulkley Drive, dated 31 October 2013, prepared by Tetra Tech, Inc.
provides a drainage analysis of the proposed Celestial Residence. The report includes a hydraulic
analysis and preliminary plan for the proposed drainage facilities, including a detention facility,
swales, storm sewers and culverts which will mitigate runoff and transport flows through and off
Celestial's property, The report shows that historical flow patterns and runoff amounts are
achieved and the natural character of the area is preserved. The report provides engineering
calculations, analyses, and designs which demonstrate that debris flow hazards can be mitigated
using conventional methods that have been used successfully in other locations in Pitkin County.
As with all prior engineering work undertaken in regard to the project, this additional work has
also been reviewed, evaluated, and approved through peer review by Wright Water Engineers
(Colorado -licensed engineers) in a well -documented written submittal provided in the Appendix to
this Resolution.
B. The Grading Plan Memorandum, dated 30 October 2013, prepared by Tetra Tech, Inc. updates
the report submitted in 2009 entitled the Eagles Nest Mud Flood and Mitigation Comprehensive
Report, also prepared by Tetra Tech. The Grading Plan Memorandum provides a review of mud
and debris flow hazards associated with development on an alluvial fan as well as the mitigation of
such hazards relative to the Celestial Residence. In this latest submission and in accordance with
the Hearing Officer's conditions of approval, Celestial has modified the site plan so that all mud
and debris flow mitigation, including the mud and debris flow trough, channel, site grading and
detention facility, are located outside of the red avalanche hazard zone, as identified by both Art
Mears and Trautner Geotech, LLC.
C. The Avalanche Hazard Analysis, dated 31 October 2013, prepared by Trautner Geotech LLC
provides an evaluation and detailed discussion of potential avalanche exposure relating to the
Celestial Residence. The analysis, which has utilized surface observations, dendrochronology,
avalanche dynamic modeling, and extensive professional experience working in the area, assesses
applicable avalanche hazards and validates avalanche design concepts which will form the basis of
final design level geotechnical engineering. In accordance with the Hearing Officer's conditions
of approval, Celestial has modified the site plan so that all avalanche mitigation, including an
avalanche deflecting berm/wall combination, has been located outside of the red avalanche hazard
zone (as depicted by both Mr. Mears and Trautner Geotech LLC) and, along with the proposed
Celestial residence, is located entirely within the blue avalanche zone. The report concludes that
Celestial's modified avalanche mitigation (which was modified principally to remove three
avalanche deflection mounds and a portion of the avalanche trough from the red zone) is sufficient
to fully mitigate the avalanche hazard risk affecting Celestial's proposed development. A final
maintenance plan will be submitted prior to the final building permit issuance which will ensure
that avalanche debris will be immediately cleared from the proposed berm/wall in the event of an
avalanche at the site.
D. The house, as depicted in the architectural plans entitled Celestial Residence, dated 22 October
2013, is approximately 13,070 SF, and will utilize two (2) TDRs to attain a maximum floor area of
13,250 SF. The home minimizes site disturbance and visual impacts through a compact, low
slung design, including a total underground area of 46% of the maximum potential floor area of
13,250, This exceeds the requirement imposed in Determination No. 04-2013 that 40% of the
000020
Resolution No. -2014
Page I 4
resident be loca ed underground. The residence fully complies with required height limits and
will be virtually invisible from Maroon Creek Road. As'1stated in Determination No. 04-2013, the
proposed resider* avoids increasing "the risk to the health, safety, and welfare posed by the
debris d avalanbhe hazards."
E. The encl sed Planting Plan, Grading Plan, and Illustrative Site Plan, dated 22 October 2013,
depicts a I topography, pertinent existing vegetation and other significant features of the existing
landscap . The Planting Plan also shows all vegetation, landforms, and other landscape features
intended to screen proposed structures. A plant list identifies through graphic convention and
labeling he number, species, and size of all plants to be installed. The Planting Plan confirms that
all proposed development is appropriately located within a previously delineated Activity
Envelope and/or defines new proposed activity envelopes which will contain all proposed
development. Al development has been located to avoid Constrained Areas to the greatest extent
possible, and it completely avoids areas of steep slopes and areas of red avalanche hazard.
F. Andrew Earles, Pki.D., P.E., D.WRE, CPESC of Wright Water Engineers, Inc. (WWE) has
prepared a Peer Review Report, dated 5 November 2013, which provides detailed observations
and co ents re lating to the work performed by Tetra Tech, Inc. regarding alluvial fan flooding
hazards d mitigation measures associated with the Celestial project. WWE was first engaged by
Celestial in 2010 to perform peer review of other work prepared by Tetra Tech and therefore has a
high level of undirstanding of the particular alluvial fan flooding hazards which impact the
neighbor cod. The latest observations submitted by Dr.'Earles focus on the modifications to the
grading d the Byte plan which directly respond to the conditions of approval imposed by the
Pitkin C unty Hearing Officer, particularly the condition that the no development occur in the
avalanche red zone. Dr. Earles has determined that the proposed mitigation developed by Tetra
Tech wit. protect ;the Celestial residence and will provide benefits to other residences located
lower down on the alluvial fan, including the Pritzker barn and caretaker residence. These
benefits hre made possible by the debris flow storage that has been proposed as well as the flow
attenuati n that will occur as a result of the mitigation efforts.
15. Celestial has iden ified additional benefits that have resulted from' its work in meeting the Conditions
imposed by Determination No. 04-2013. These benefits include without limitation the following:
A. The avalanche trench is reduced 219 feet to a total length of only 141 feet and is not visible from
Maroon Creek Road or neighboring residences;
B. Overall site disturbance is reduced by 25,000 square feet and is now only approximately 115,000
1
square feet; I
C. The debris/aval the protection wall is reduced by approximately 80 feet. It is now only 180 feet
long and is not visible from Maroon Creek Road or neighboring residences due to terrain. The
reduced wall had been replaced by a natural land form berm similar to that employed by the
abutting Pritzker residence at their pond, which now appears as a natural part of the landscape;
D. All interior spaces and exterior decks are protected from avalanche;
E. The proposed footprint of the residence is reduced as well, from a footprint of 6,600 square feet in
the prior submittal that was considered by the Hearing Officer and the County Planning Staff to a
current c lculatedi footprint of 5,852 square feet (this square footage may be adjusted slightly, but
in any ca e the fo btprint will be well under 6,000 square feet). This is a reduction of almost
twenty-s ven percent (27%) when compared to the 8,000 square foot footprint requested by the
first Heaiing Officer, Jim True;
F. In every easure presented to the Hearing Officer (footprint, footprint plus auto court, length), the
proposed house is still smaller than the neighborhood average;
G. The avalanche trench is virtually invisible from Maroon Creek Road, as shown in the site visual
simulation contained in the Appendix attached to this Resolution;
Resolution No. -2019
Page { 5
H. Revegetation will render all site grading completely non -visible from Maroon Creek Road; and
1. The view simulation of the current design confirms what has been shown in all prior design
iterations —that the house is barely visible from any public way.
16. The BOCC heard this matter at a duly noticed public hearing on February 26, 2014, at which time evidence
and testimony was presented with respect to the application. It has been determined that despite the
mandate in the Code and the clear protocol established for the hearing by the County Attorney and the
County Community Development staff, that the Neighbors introduced new information and evidence
through testimony and visuals at the hearing that were not contained in or part of the underlying record of
this matter. Therefore, all such information cannot and will not be utilized in rendering this Board's
decision.
17. Based on the review of the conditions of approval imposed by the Hearing Officer and considering
Celestial's effective response to the conditions of approval the BOCC finds that the Hearing Officer did not
err, abuse his discretion or deny procedural due process in his determination to approve the Celestial Land
Company Activity Envelope, Site Plan Review, Special Review and GMQS Exemption for TOR Receiver
Site.
NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby denies the Neighbors' appeal of
Hearing Officer Determination No. 04-2013, and upholds Hearing Officer Determination No. 04-2013, which
approved the Celestial Land Company Activity Envelope, Site Plan Review, Special Review and GMQS Exemption
for TOR Receiver Site.
DENIED on the 26th day of February 2014.
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By
ATTEST: George Newman, Chairman
Date
Jeanette Jones
Deputy County Clerk
APPROVED AS TO FORM: APPROVED AS TO CONTENT
John Ely,
County Attorney
000021
Cindy Houben,
Community Development Director
HOLLAND&HART. A
January 31, 2014
Board of County Commissioners, Pitkin County
c/o Suzanne Wolff AICP and John Ely, County
Attorney
530 E. Main Street
Aspen, CO 81611
Mark E. Hamilton
Phone (970) 925-3476
Fax (866) 784-7682
MEHamilton@hollandhart.com
05591.0004
VIA HAND DELIVERY
Re: In re Celestial Land Company; Appeal of Hearing Officer Determination No. 04-2013
Dear Suzanne and John:
Per Rachel Richards' direction at the last BOCC hearing on November 20, 2013, and the
ensuing motion that directed the drafting of a proposed resolution granting the Neighbors' appeal, we
are submitting the attached draft resolution that would grant the Neighbors' appeal on two grounds
that Rachel articulated in her motion: (1) that Determination No. 04-2013 is void due to the hearing
officer's conflict of interest; and (2) that no additional TDRs may be transferred to this site. We
would ask that a copy of this Ietter and the attached draft resolution be provided to the County
Commissioners prior to their next deliberations on this matter.
There have been several evidentiary hearings before two hearing officers and two public
hearings before the BOCC. It would seem to be in everyone's best interest to fully and finally resolve
as many issues as possible, and for there to be clear direction as to the scope of any further
proceedings.
Please give me a call should you have any questions about the content of this submittal.
Otherwise, we will look forward to attending the next BOCC meeting on this matter.
Sincerely,
Mark E. Hamilton
of Holland & Hart LLP
MEH:sb
Enclosures
cc: Neighbors (w/encl)
(all via email)
6637623_1
Holland & Hartur Attorneys at Law
K,orie (970) 925-3476 Fax (970) 925-9367 www.hollandharE.com
600 East Main Street, Suite 104 Aspen, Co 81611-1991
Aspen Bangs Boise Boulder Carson Oty Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake Crty Santa Fe Washington, D C
0U0022
RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN
COUNTY, COLORADO, GRANTING AN APPEAL BY ROARING FORK LAND &
CATTLE COMPANY/JM SKYWAYS/JAMES BULKLEY FAMILY TRUST AND
KATHERINE BULKLEY 2006 FAMILY RESIDENCE TRUST/BRUCE E. CARLSON
TRUST ND" -COMPANY ACTIVITY
E , AND REVERSING HEARING OFFICER
DETERMINATION NO. 04-2013
Resolution No. -2014
RECITALS
1. Roaring Fork Land & Cattle Company/JM Skyways/James Bulkley Family Trust and
Katherine Bulkley 2006 Family Residence Trust/Bruce E. Carlson Trust ("Neighbors")
have applied to the Board of County Commissioners of Pitkin County, Colorado
("BOCC") to appeal Hearing Officer Determination No. 04-2013, which approved the
Celestial Land Company Activity Envelope, Site Plan Review, Special Review and GMQS
Exemption for TDR Receiver Site.
2. The Celestial Land Company ("Celestial") parcel is located on Bulkley Drive off of
Maroon Creek Road, and is more specifically described in Exhibit A.
3. The Celestial parcel is zoned AR-10 and contains 35 acres.
4. In 2009, Celestial submitted an application for approval of Activity Envelopes, Site Plan
Review, Special Review and GMQS exemption to utilize three additional TDRs for a total
of 15,000 square feet of floor area to construct a single family residence.
5. On August 5, 2010, following a public hearing, the then -Hearing Officer, Mr. Jim True,
denied the Special Review and GMQS Exemption for a TDR receiver site, approved the
Activity Envelope, and continued the Site Plan Review pursuant to Determination No. 05-
2010.
6. Celestial and the Neighbors then cross -appealed Determination No. 05-2010. Celestial
sought to overturn the denial of its request to transfer additional TDRs. The Neighbors
sought reversal of the approval of the Activity Envelope.
7. On May 9, 2011, pursuant to Resolution Nos. 061-2011 and 062-2011, the BOCC denied
Celestial's appeal, upheld the Neighbors' appeal, and remanded the Activity Envelope to
the Hearing Officer with direction to develop additional facts to determine whether or not
a better alternative location for development is present on the property that would increase
safety for the use of the Celestial property as well as the surrounding properties. With
000023
Resolution No. -2014
Page 2 of 10
regard to denial of Celestial's appeal, the BOCC found in Resolution No. 061-2011 that
the Hearing Officer did not err when he denied the transfer of three additional TDRs
(which would have allowed a 15,000 square foot residence).
8. On June 8, 2011, Celestial filed a legal action in the Pitkin County District Court, Case No.
2011 CV 148, to challenge the BOCC's denial of its application to transfer additional
TDRs.
9. On February 7, 2012, Pitkin County entered into a Settlement Agreement with Celestial
that allowed Celestial "to introduce a new proposal to apply TDRs to increase the square
footage of the residential structure up to 15,000 square feet based on changed designs,
additional engineering and other modifications to the Site Plan that have occurred since the
Hearing Officer's review in May 2010" as part of the continued proceedings on the
Activity Envelope.
10. On October 1, 2012, Celestial submitted an amended application requesting Activity
Envelope, Site Plan Review and Special Review approval for a Transferable Development
Right receiver site to utilize two additional TDRs for a total of 13,250 square feet of floor
area to construct a single family residence and an attached caretaker dwelling unit.
Celestial also requested to establish new activity envelopes in addition to the previously
approved building envelope to encompass all development, including the residence, debris
flow and avalanche mitigation structures, debris flow basin, driveway, on -site wastewater
treatment system, well, landscaping and grading.
11. Jim True was hired as City Attorney for the City of Aspen in February, 2012. Pitkin
County subsequently selected Tom Smith to serve as the County's new Hearing Officer.
On November 6, 2012, Mr. Smith notified the parties by email that he would be serving as
the new Hearing Officer in these proceedings. On November 14, 2012, the Neighbors filed
a written motion requesting that Mr. Smith recuse himself from further proceedings, and
that an alternate hearing officer be appointed. This motion was filed because of Mr.
Smith's prior representation as a private land use attorney of Rick and Landon Deane,
Celestial's predecessors -in -interest, at the time that the Celestial parcel was created and
initial land use entitlements, including the use of two TDRs, were approved by the
County. Mr. Smith entered a written order denying the Neighbors' recusal request on
November 26, 2012.
12. Mr. Smith proceeded to receive further written submittals from Celestial and the
Neighbors and then conducted a public hearing on May 2, 2013. At that time, both
Celestial and the Neighbors presented additional expert testimony and argument to Mr.
Smith, in addition to the voluminous record of prior proceedings in this matter.
000024
Resolution No. -2014
Page 3 of 10
13. Although the Celestial property contains approximately 35 acres, development upon most
of this land is prohibited by the Land Use Code due to steep slopes. Only about three
acres is potentially developable. However, this three acre area is constrained by both
alluvial fan hazard (debris and mud flow) and avalanche hazard.
14. On May 23, 2013, Mr. Smith issued Determination No. 04-2013, which approved
Celestial's application with conditions. In particular, Mr. Smith approved the transfer of
two additional TDRs to permit development of a 13,250 square foot home. And,
Celestial's preferred building site was approved, despite being located in an area that is
closer to the source of the avalanche and debris flow hazards.
15. The Neighbors have appealed Mr. Smith's decision pursuant to Section 2-20-180 of the
July 2006 Pitkin County Land Use Code ("Land Use Code"). In particular, Section 2-20-
180(c) provides that "... a decision by any decision -making body (including the .. .
Hearing Officer) may be appealed to the Board of County Commissioners." The BOCC
finds that the Neighbors' appeal was timely and proper under this Section of the Land Use
Code.
16. The Land Use Code further provides in Section 2-20-180(c) for the BOCC to schedule and
hold a public meeting on the appeal at which the BOCC "shall review the record of the
decision and shall provide the appellant an opportunity to discuss the grounds for the
appeal and the basis of the alleged error in the decision. After the presentations from all
adversely affected persons, the Board may hear from any other person(s) it deems
appropriate."
17. The BOCC heard the Neighbors' appeal at a five hour long duly noticed public hearing on
November 20, 2013. As set forth below, the BOCC finds and determines that the
Neighbors' appeal should be granted, that Determination No. 04-2013 should be reversed.
18. In their appeal, the Neighbors assert that five grounds for appeal exist that warrant reversal
of Determination No. 04-2013:
(a) Development was improperly allowed within the highest impact areas of the
avalanche Blue Zone;
(b) Development was not required to avoid debris flow hazards to the maximum extent
possible;
(c) Significant site planning issues were deferred for resolution outside of public
hearings;
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(d) Two additional TDRs were allowed to be transferred in order to authorize
additional residential floor area on a 100% constrained development site; and
(e)
The Hearing Officer had an impermissible conflict of interest due to his prior work
as a private land use attorney for Celestial's predecessor -in -interest when the
Celestial parcel was originally created and in past proceedings before Pitkin
County for initial land use entitlements substantially similar to those now sought by
Celestial.
19. On November 20, 2013, after receiving written briefing from Celestial and the Neighbors
together with a staff report from the Community Development Department that included
many items from the record in this matter, in accordance with Section 2-20-180(c) of the
Land Use Code, the BOCC allowed both the Neighbors and Celestial to discuss the
grounds for the appeal. In particular, Mark Hamilton (attorney), Glenn Horn (land use
planner) and Art Mears (geologic hazard expert) presented on behalf of the Neighbors, and
John Fognani (attorney), Stan Clauson (land use planner), John Cottle (architect), and
Andrew Earles (geotechnical engineer) presented on behalf of Celestial. After hearing
from both sides as required by the Code, the BOCC also exercised its discretion to hear
from other interested parties as part of the noticed public meeting. In particular, comment
was taken from John Bennett, former Mayor of the City of Aspen, who stated that Mr.
Smith had an impermissible conflict of interest due to his prior representation of Rick and
Landon Deane with regard to the same property that is at issue in this proceeding. Leslie
Lamont, land use planner and former Pitkin County Commissioner, Alan Richman, a
private land use planner representing twelve other neighboring property owners, and
Suzanne Caskey, former chair of the Pitkin County Planning Commission, all spoke as to
how the Land Use Code prioritizes avoidance of natural hazards over engineered
mitigation, and that the permitting of a large new residence in a highly constrained area
would be contrary to the Code and longstanding Pitkin County land use planning policies
and regulations.
20. After receiving the parties' presentations and subsequent public comment on November
20, 2013, the BOCC closed the public hearing and began its deliberations. After some
discussion, the BOCC passed a motion 5-0 directing County staff to prepare a written
resolution upholding the Neighbors' appeal as to the conflict of interest issue and the
ineligibility of the Celestial property as a TDR receiver site. This matter was then
continued for further deliberations. On February 26, 2014 the BOCC reconvened at a
scheduled public meeting and proceeded to enter the following conclusions of law and
order in this matter.
CONCLUSIONS OF LAW
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Resolution No. _-2014
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21. The foregoing Recitals are incorporated as findings and conclusions in this matter as
though fully set forth herein.
The Standard of Review
22. Pursuant to Section 2-20-80(g) of the Land Use Code, the BOCC may "reverse, modify, or
remand a decision on appeal if it finds that there has been a clear and demonstrable error,
abuse of discretion or denial of procedural due process in the application of the facts in the
record to the standards of the Land Use Code." Pursuant to Section 2-20-80(h) of the Land
Use Code, "[b]ased on the testimony heard at the [BOCC appeal meeting] and the record,
the Board may affirm, modify or reverse the decision [of the Hearing Officer]."
Conflict of Interest
23. Although in a smaller town or rural area, the likelihood is somewhat higher that a decision -
maker will have had prior experience with persons or properties involved in any particular
application, the standards for conflicts of interest regarding county hearing officers are the
same as those applicable to judges in Colorado. Venard v. Dept. of Corrections, 72 P.3d.
446, 449 (Colo. App. 2003). Recusal is required "in any proceeding in which the judge's
impartiality might reasonably be questioned." Colo. Code of Judicial Conduct Rule
2.11(A); see People v. Gallegos, 251 P.3d 1056, 1063 (Colo. 2011) (holding that, though a
judge may be able to act impartially, disqualification is nonetheless appropriate where a
reasonable observer might have doubts about the judge's impartiality); Goebel v. Benton,
830 P.2d 995 (Colo. 1992); Leverett v. Town of Limon, 567 F.Supp. 471 (D. Colo. 1983).
24. Based upon submittals by the Neighbors, as well as the Hearing Officer's written order
denying the Neighbors' motion for recusal, the record is clear that Mr. Smith previously
advocated for development entitlements for the Celestial property when it was owned by
Rick and Landon Deane, including the use of two TDRs to allow potential future
development of an 8,250 square foot home within the very same activity envelope now
requested by Celestial. The BOCC finds that a reasonable observer would have doubts
about Mr. Smith's ability to impartially adjudicate to what extent and under what
additional conditions development should be allowed within the very same area where Mr.
Smith previously advocated for development entitlements. The BOCC therefore concludes
that Mr. Smith had an impermissible conflict of interest in this matter and that his failure
to grant the Neighbors' motion for recusal was clear and demonstrable error, an abuse of
discretion and a denial of procedural due process that requires the BOCC to grant the
Neighbors' appeal and to reverse Determination No. 04-2013 in its entirety.
25. Additionally, in its written submittals and argument to the BOCC concerning the
Neighbors' appeal, Celestial asserted that the Neighbors somehow either waited too long
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Resolution No. _-2014
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or failed to repeatedly raise this issue with the BOCC. To preserve an issue for appeal, all
that is needed is for a party to bring the issue to the attention of the decision -maker and
give him or her a chance to rule on it. Target Corp. v. Prestige Maintenance USA, Ltd., ---
P.3d---, 2013 WL 363324, *4 (Colo. App. 2013) (quoting Berra v. Springer & Steinberg,
P.C., 251 P.3d 567, 570 (Colo. App. 2010)). The BOCC finds no merit in Celestial's
argument. The Neighbors' motion for recusal was filed at the very early stages of the
proceedings before Mr. Smith, and Mr. Smith issued a written order denying the motion
for recusal before anything else occurred. There is no requirement that a party make
repeated requests as to the same issue. The BOCC therefore finds and determines that the
Neighbors' written motion for recusal was timely made and properly preserved for appeal.
Transfer of Additional TDRs
(Special Review and GMQS Exemption for TDR Receiver Site)
26. Although two TDRs were transferred to this property in the past, such occurred without
any evaluation of the avalanche hazard and without the extensive additional evaluation of
the debris flow hazard that has occurred here. Since Celestial's vested property rights had
expired previously, the current land use application must comply with the current Land
Use Code, which requires these hazards to be addressed in the public hearing process
rather than the building permit process.
27. Although lands within the Aspen Urban Growth Boundary (UGB) may utilize TDRs as a
matter of right, the approval of TDRs for lands within the Rural Area is subject to a
discretionary Special Review. The Special Review process recognizes that all sites in the
Rural Area have different characteristics; therefore, the Land Use Code requires a case -by -
case evaluation for compliance with the Special Review standards of the Code. The
process requires identification and analysis of all land use constraints, including geologic
hazards.
28. Pursuant to Section 6-10-10 of the Land Use Code, "the purpose of the Growth
Management Quota System (GMQS) is to manage the rate, type, location, quality, and
ultimate quantity of growth within the Rural and Urban Areas of unincorporated Pitkin
County to ensure:... (b) A type of growth in the Rural Area that is consistent with the
existing rural character of the area, and helps to maintain a distinction between the Rural
Area and the Urban Areas of Aspen, Basalt, Carbondale, and Snowmass;... (c) A means
of directing growth into appropriate locations that is containable and will not promote
sprawl; [and] ... (d) A quality and quantity of growth that preserves and is compatible
with the existing character of the Urban and Rural Areas; manages population growth,
including the number of permanent residents, visitors, and the total number of Pitkin
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Resolution No. -2014
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County jobs; encourages growth in appropriate locations within the Aspen Urban Growth
Boundary; and prevents incremental urbanization of the Rural Area." Additionally, TDR
transfers are always discretionary, not a use by right (see e.g. Land Use Code Section 6-
30-10 ("[t]he purpose of this section is to create a number of discretionary exemptions")).
29. The following Special Review standards set forth in Section 2-30-30(h) of the Land Use
Code are among various code requirements that further govern the eligibility of a
particular property to receive additional square footage through the transfer of TDRs:
(b) The special review use shall not conflict with any applicable
sections of the Pitkin County Land Use Code, including the County
Land Use Policies in Chapter 1.
(g)
The location, size, design and operating characteristics of the
proposed special review use must be in harmony with the
surrounding area and minimize adverse effects, including visual
impacts, impacts on pedestrian and vehicular circulation, traffic
generation, parking, trash, service delivery, air/water pollution or
other impacts on natural resources, noise, vibrations and odor on
surrounding properties.
30. The record further reflects that there is no material dispute as to the location or
extent of either of these geologic hazards. With regard to avalanche hazard, Mr.
Andy Gleason, an engineering geologist who testified as Celestial's avalanche
expert, confirmed that "the blue zone covers the entire building envelope." See
May 2, 2013 Hearing Transcript on p. 66, lines 19-21. Mr. Gleason also noted that
"the opponent's [Le. the Neighbors'] hazards [i.e. avalanche hazard mapping] ..."
is "very similar and well within the margin of error for these models." Id. at p. 70,
lines 2-5. (And, at the appeal meeting before the BOCC on November 20, 2013
(see below), Celestial's presentation to the BOCC incorporated and accepted the
Neighbors' avalanche mapping). Similarly, with regard to the debris flow hazard,
throughout these proceedings, no one has disputed that 100% of Celestial's
proposed activity envelope is constrained by debris flow hazard. See e.g. May 2,
2013 Memorandum to Tom Smith from Suzanne Wolff, Senior Planner at p. 8
("Staff agrees that all of the developable portion of the property is within an
alluvial fan, but disagrees with the premise that since the Code allows development
within an alluvial fan, subject to mitigation, then the range, size and intensity of
development are insignificant factors").
31. Additionally, with regard to both of these geologic hazards, Karen Berry, a
Colorado -registered professional geologist who is employed by the Colorado
Resolution No. -2014
Page 8of10
Geologic Survey and serves as the County's expert referral on geologic hazard
issues, confirmed in the hearing before Mr. Smith that "the disruptive energies
including the impact forces decrease as you go lower on the fan. This includes the
avalanche and debris flow and I think you've had plenty of testimony [in] that
regard." May 2, 2013 Hearing Transcript at p. 243, lines 8-12. Therefore, Ms.
Berry agreed with County staff that, with regard to both hazards, development
should be sited as far away from the source of the hazard as possible. Id.; see also
May 2, 2013 Memorandum to Tom Smith from Suzanne Wolff, Senior Planner, at
p. 8 ("Staff ... continues to recommend that the development should be sited as far
from the apex and toward the fringe of the alluvial fan ...").
32. Despite these constraints, Celestial's pending application would have the County
approve placement of a large new residence (13,250 square feet), a 300+ foot long
concrete deflection wall, a large detention basin (almost an acre in size), and a
large avalanche mitigation trough upon this site within these hazard zones. See
Celestial Land Company Supplemental Submission dated March 1, 2013—
"Revised Landscape and Activity Envelope Plan." This scale of development on
such a site with multiple geologic hazards is not consistent with the existing
character of the Rural Area. Furthermore, the Land Use Code requires and
prioritizes hazard avoidance over engineered mitigation. See generally Land Use
Code Sections 7-10-50 and 7-10-60. Likewise, Section 1-60-90 of the Land Use
Code states: "[i]t is the policy of the County that development be sited in locations
that avoid natural hazard areas, and where avoidance is not possible in locations
where mitigation is designed to minimize potential harm to life, safety, health and
property," In this instance, increasing the scope of development through the
discretionary transfer of additional TDRs is not in compliance with these sections
of the Land Use Code or the underlying purposes of the GMQS system.
33. This matter has been pending before Pitkin County since 2009. The resulting
record is voluminous. But, based upon the BOCC's review of the record and public
comment at the appeal meeting on November 20, 2013, it remains undisputed that
the Celestial site is highly constrained by two geologic hazards and that its
proposed development would include substantial engineered mitigation and
significant site disturbance. As such, no further fact-finding is necessary in order
for the BOCC to make a final determination regarding Celestial's application for
Special Review and GMQS exemption. Consistent with its prior ruling upholding
the prior hearing officer's determination on this issue pursuant to Resolution No.
061-2011, the BOCC finds and concludes that the Celestial property is not eligible
for the transfer of any additional TDRs.
Resolution No. -2014
• Page 9 of 10
Site Plan and Activity Envelope
34. In its May 2, 2013 staff report to the hearing officer (at p. 15), the Community
Development Department noted that Celestial had not avoided natural hazards to
the extent practicable and recommended denial of this application. This staff
recommendation was based upon a proposed site plan for a 13,250 square foot
home with attendant mitigation (including mitigation sited in the Avalanche Red
Zone, which is prohibited by Land Use Code Section 7-20-50(a)(3)(a)). Should
Celestial desire to pursue Site Plan and Activity Envelope approval for a reduced
size residence that does not include the transfer of any additional TDRs to this site,
it may proceed to submit a revised application as set forth below, provided that all
development on the site must be sited in accordance with Sections 7-10-50 and 7-
10-60 of the Land Use Code.
NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby reverses Hearing
Officer Determination No. 04-2013 and denies Celestial's application for Special Review and
GMQS exemption. Should Celestial desire to complete the Site Plan and Activity Envelope
Review Process as described above, it may submit a revised Site Plan showing all proposed
improvements, including any engineered mitigation, for further processing in accordance with the
above determination. Given the public controversy surrounding these proceedings, the numerous
parties who have participated to date, and that two prior hearings have already occurred before the
BOCC on this matter, if Celestial proceeds to submit a revised Site Plan, the Community
Development Director is hereby directed to refer said matter directly to the BOCC for further
consideration at a noticed public hearing in accord with Section 2-30-20(i) of the Land Use Code.
SO ORDERED on the day of
2014.
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By:
George Newman, Chairman
ATTEST:
Date:
Jeanette Jones
Deputy County Clerk
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Resolution No. -2014
Page 10 of 10
APPROVED AS TO FORM:
John Ely, County Attorney
APPROVED AS TO CONTENT:
Cindy Houben, Community Development
Director
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