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HomeMy WebLinkAboutbocc.packet.09102014 - GSS Properties LLC Holloway Staff MemoMEMORANDUM TO: Board of County Commissioners Regular Meeting - September 10, 2014 THRU: Cindy Ho FROM: Suzanne Wolff, Senior Planner RE: mmurn Development Director GSS Properties LLC/Holloway Site Plan Review for Driveway — Takings Determination SUMMARY OF REQUEST: The Applicant requested a hearing, pursuant to Section 2-40-130 of the Pitkin County Land Use Code, as a result of the BOCC's denial of the GSS Properties LLC Site Plan Review for a driveway, pursuant to Resolution No. -2014 (approved August 27, 2014). The Applicant contends the denial constitutes a taking and denies all reasonable use and economic return on the property by preventing access to the property. A separate request for a takings determination based on the prior denial of the original driveway off of Woody Creek Road (denied pursuant to BOCC Resolution No. 070-2013) will also be considered at this meeting. REPRESENTATIVE: Jim Curtis LOCATION: Woody Creek Road ZONING/LOT SIZE: RS-20/62.95 acres STAFF COMMENTS: The standard of review for a BOCC takings determination is identified in Sec. 2- 40-150(d) of the Land Use Code, and reads as follows: "The Board shall determine whether the property owner will be denied all reasonable use and economic return on the property as a result of the questioned determination. If the Board determines that a taking has or may occur, it shall take such action as it deems appropriate to remedy the situation. In making its decision the Board shall consider the value of the property cis a whole and shall not base its decision on the impact of the regulation on one portion of the ownership interest. In making its determination, the Board shall consider the beneficial uses which remain in the property notwithstanding the challenged determination and shall give due consideration to the reasonable investment -backed expectations of the landowner." Sec. 2-40-150(b) of the Code requires that the Applicant submit the request for a takings hearing within 15 working days of the decision and that the BOCC conduct a hearing within 45 working days of the request. The BOCC is required to render a decision regarding the request for a takings determination within 15 working days after the hearing. The Applicant submitted a request for the takings hearing within 15 days of the decision, and the hearing is scheduled within 45 working days of the decision. 000001 0 1?___ SUMMARY OF APPLICANT'S POSITION: The Applicant requests a takings determination pursuant to the Code as specified in the attached letter (Attachment A). The Applicant contends that the BOCC's denial of the application has denied use of the property by preventing access. Drawings of the proposed driveway are attached. ISSUES RELATED TO THE PROPOSED DRIVEWAY: Issues related to the proposed driveway on the Holloway property were fully addressed in the staff memo to the BOCC dated August 27, 2014. The BOCC denied the application based on the finding that the driveway envelope encroaches on slopes in excess of 45% and 30%, where development is prohibited by Secs. 7-20-20(b) and (c) of the Code. The Applicant has investigated alternative driveway envelopes, all of which encroach on slopes in excess of 45%. SUMMARY OF RECOMMENDATION: Pursuant to Sec. 2-40-150 of the Code, the I3OCC shall determine whether the property owner will be denied all reasonable use and economic return on the property as a result of the questioned determination. The BOCC shall direct staff to prepare a resolution of approval or denial based on their final ruling. ATTACHMENTS: 1. 8/28/14 Letter from Applicant requesting takings determination 2. BOCC Resolution No. -2014 (not recorded) 3. Maps 2 000002 AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law 600 E. Hopkins Avenue Suite 205 Aspen, Colorado 81611 Frederick F. Peirce Thomas Fenton Smith Daniel J. Sullivan August 28, 2014 VIA HAND DELIVERY Board of County Commissioners of Pitkin County c/o Ms. Suzanne Wolff 130 S. Galena Street, 3"a Floor Aspen, Co 81611 Telephone: (97o)925-2600 Facsimile: (970) 925-4720 Email Addresses: fpeirce@aps-pc.com tsmith@aps-pc.com dsullivan@aps-pc.com Re: Application for a Takings Resulting from Resolution of the Board of County Commissioners of Pitkin County, Colorado, Denying the GSS Properties LLC Activity Envelope and Site Plan Review for a Driveway across the Holloway Property; Special Review and GMQS Exemption for TDR and Site Plan Review for Residence; and Amendments to Resolution NO. 099-2011 Dear Commissioners: We represent GSS Properties, LLC, the owner ("Applicant") of the Property located on the north side of Woody Creek Road known as the Sun Mesa Property, which is the subject of the Application and BOCC Resolutions described below (the "Property"). The Applicant submitted an application to the Board of County Commissioners (the "BOCC") to obtain Activity Envelope and Site Plan Review for a Driveway across the Holloway Property; Special Review and GMQS Exemption for TDR and Site Plan Review for Residence; and Amendments to Resolution NO. 099-2011 (the "Application"). At its hearing on August 27, 2014, the BOCC denied the Application "due to the encroachment of the driveway on slopes in excess of 30% and 45%" (see BOCC Resolution No. -2014, a copy of which is attached hereto (the "Resolution"), which was approved by a unanimous 4-0 vote) 000003 AUSTIN, PEIRCE & SMITH, P.C. Attorneys at Law Board of County Commissioners of Pitkin County August 28, 2014 Page 2 It is the Applicant's position that the BOCC's decision stated in the referenced Resolution will deny the Applicant all reasonable use and economic return on the Property by preventing access to the Property from the Woody Creek Road and pursuant to Section 2-40-150 of the Pitkin County Land Use Code (the "Code"), requests a hearing that the Resolution constitutes a taking as described therein. By Administrative Decision No. 27-2011, the Community Development Director denied an Activity Envelope application because the driveway envelope contained slopes in excess of 45%. The BOCC subsequently found that a taking had occurred as a result of the denial and remediated the taking by approving Activity Envelopes pursuant to Resolution No. 099-2011. While Resolution 099-2011 approved the Activity Envelope containing the proposed driveway access, it contained a condition requiring the Applicant to submit an application for Site Plan Review for the driveway prior to submission of any building permit applications and contained details on the criteria to be addressed in the Site Plan Review application. The Applicant spent two years exploring and developing various options for locating a driveway within the approved Activity Envelope that would meet the Site Plan Review criteria and included the Community Development Department in those endeavors. Based upon input from the Community Development Department, the Applicant submitted a Site Plan Review application that was then denied by the BOCC pursuant to Resolution No. 070-2013. As a result of the denial of the Site Plan Review application, the Applicant found itself back in the same position in which it found itself when its Activity Envelope application was denied by Administrative Decision No. 27-2011; that a taking had occurred, because the Applicant was precluded from accessing its Property. Accordingly, the Applicant requested a takings hearing on the matter as set forth in Section 2-40-150 of the Code. Due to the intervening Application for access for a driveway access across the Holloway Property, that takings application has been tabled until September 24, 2014. Now, after another several months of working with the Holloways on preparing an application for an alternative driveway along the Applicant's access easement on the Holloway Property, the BOCC has once again denied the Application by virtue of the attached Resolution and has left the Applicant with no approved access to the Property. Accordingly, the Applicant requests a takings hearing on the matter as set forth in Section 2-40-150 of the Code. 0 0 41Fdes M-Z\Stranahan\GSS Properties, Sun Mesa Takings\BOCC Second Takings Determination Application doc AUSTIN, PEIRCE & SMITH, P.C. Attorneys at Law Board of County Commissioners of Pitkin County August 28, 2014 Page 3 If you have any questions or would like any additional information, please do not hesitate to give me a call. Thank you for your consideration. Very truly yours, N, ' EIRCE & SMITH, By: _ Frederi_ck�. Peirce FFP/hs Enclosure cc: James L. Curtis John M. Ely, Esq. U0O005 F \Files M-Z1Stranahan\GSS Properties, Sun Mesa Takings\BOCC Second Takings Determination Application doc RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKLN COUNTY, COLORADO, DENYING THE GSS PROPERTIES LLC ACTIVITY ENVELOPE AND SITE PLAN REVIEW FOR A DRIVEWAY ACROSS THE HOLLOWAY PROPERTY; SPECIAL REVIEW AND GMQS EXEMPTION FOR TDR AND SITE PLAN REVIEW FOR RESIDENCE; AND AMENDMENTS TO RESOLUTION NO. 099-2011 Resolution No. -2014 RECITALS 1. GSS Properties LLC ("Applicant") applied to the Board of County Commissioners (`BOCC") to obtain Activity Envelope and Site Plan Review approval for a driveway across the Holloway property; Special Review and GMQS Exemption to utilize one TDR and Site Plan Review approval to develop a residence of up to 8,250 square feet of floor area within the previously approved Activity Envelope; and to amend certain conditions of Resolution No. 099-2011. 2. The parcel is located on the north side of Woody Creek Road, and is more specifically described in Exhibit A. 3. The parcel is zoned RS-20 and contains 62.95 acres. 4. The Community Development Director ("Director") denied the Activity Envelope application, pursuant to Administrative Decision No. 27-2011. The Director found that that the Activity Envelope for the residence complied with the Code, but that the Driveway Envelope (for a driveway directly off of Woody Creek Road) contained slopes in excess of 45%, where development is prohibited by Sec. 7- 20-20(b) of the Land Use Code ("Code"). 5. The BOCC subsequently found that a taking had occurred as a result of the denial, and remediated the taking by approving an Activity Envelope and a Driveway Envelope, pursuant to Resolution No. 099-2011. The Activity Envelope Plan was recorded in Plat Book 102 at Pages 55-57. The Protective Covenant restricting the property against further subdivision into smaller lots was concurrently recorded as Reception #597704. 6. The BOCC denied the Site Plan Review for the driveway directly off of Woody Creek Road, pursuant to Resolution No. 070-2013, based on a finding that the driveway did not comply with the intent of the Scenic View Protection provisions in Sec. 7-20-120 of the Code, as follows: A. The driveway has not been designed and located to complement the natural landscape and the natural features within the public viewplane, and does not achieve an aesthetically pleasing, rural atmosphere. B. The visual impact of the driveway and the retaining walls when viewed from Woody Creek Road is substantial and has not been minimized to an acceptable extent. C. The driveway is inconsistent with and degrades the rural character of the Woody Creek area. 7. The BOCC finds that the Driveway Envelope for the driveway across the Holloway property contains slopes in excess of 45% and 30%, where development is prohibited by Secs. 7-20-20(b) and (c) of the Code. 000000 000009 Resolution No. -2014 Page 2 8.. The BOCC further finds that the Applicant has satisfied the standards of Sec. 7-20-120(d) and (e) of the Code, the Standards for Development Within Scenic View Protection Areas and the Rural Character Guidelines, as follows: A. Any development within the building and activity envelopes will be visible from certain points along Highway 82 and Woody Creek Road, but at a substantial distance. The residence has been placed near the top, or back, or the meadow and away from the edge of the escarpment, so it is not visible from Woody Creek Road as it passes by (and below) the mesa. B. The property sits in the visual backdrop in proximity to existing development and is not in the scenic foreground as viewed from these roads, and the development will not significantly alter the scenic quality or rural character of these corridors. C. The mass of the building is broken down into smaller forms with articulated facades and staggered roof lines and heights. D. The proposed residence will not penetrate a ridgeline or silhouette against the sky as viewed from Woody Creek Road or Highway 82. E. The residence will be located at the edge of a meadow. 9. The BOCC further finds that the use of one TDR to develop up to 8,250 square feet of floor area is appropriate, given the siting of the residence and the limited visual impacts, compatibility with the character of the surrounding development, and compliance with the other special review criteria in Sec. 2-30-30(h)(2) of the Code. NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby denies the GSS Properties LLC Activity Envelope and Site Plan Review for a driveway across the Holloway property; Special Review and GMQS Exemption for TDR and Site Plan Review for a residence of up to 8,250 square feet of floor area; and Amendments to Resolution No. 099-2011, due to the encroachment of the driveway on slopes in excess of 30% and 45%. 0 0 u 0 0 7 000010 Resolulian Na -2014 Page 3 NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 24th day of July, 2014. DENIED this 27th day of August, 2014. BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY, COLORADO By Robert A. Inner, Jr,, Chairman ATTEST: Jeanette Jones, Clerk to the BOCC APPROVED AS TO CONTENT: APPROVED AS TO FORM: W,llu.C�lr,.sZ C,. i dy Houben Community Development Director P055-I4 PID #264315100021 000003 000011 John Ely County Attorney 00000} to. ❑ so too gO 1. 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