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Home My WebLink Aboutbocc.packet.09102014 - GSS Properties LLC Staff MemoMEMORANDUM TO: Board of County Commissioners Regular Meeting — September 10, 2014 THRU: Cindy Houb'n mm pity Development Director FROM: Suzanne Wolff, Senior Planner RE: GSS Properties LLC 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. 070-2013. 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 from Woody Creek Road. The determination was originally scheduled to the BOCC on December 4, 2013, but the Applicant requested that the BOCC continue the hearing to provide time for the Applicant to prepare and submit an Activity Envelope/Site Plan Review application for an alternative access to the property through the adjacent Holloway property. This application was submitted on June 20, 2014 and was denied by the BOCC on August 27, 2014. A separate request for a takings determination based on the denial of the alternative driveway across the Holloway property 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 as 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 000001 Z 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. 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 were fully addressed in the staff memo to the BOCC dated June 12, 2013. The BOCC denied the application, pursuant to Resolution No. 070-2013, based on the following findings: The BOCC finds that the proposed driveway does 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. The BOCC further finds that the proposed driveway does not satisfy Condition 114a of Resolution No. 099-2011, as the visual impact of the retaining walls has not been reduced to an acceptable extent. SUMMARY OF RECOMMENDATION: Pursuant to Sec. 2-40-150 of the Code, the BOCC 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. 10/2/13 Letter from Applicant requesting takings determination 2. BOCC Resolution No. 070-2013 3. Maps 2 000002 AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law 60o E. Hopkins Avenue Suite 205 Aspen, Colorado 8i611 Frederick F. Peirce Thomas Fenton Smith Daniel J. Sullivan October 2, 2013 VIA HAND DELIVERY Board of County Commissioners of Pitkin County c/o Ms. Suzanne Wolff 130 S. Galena Street, 3rd Floor Aspen, Co 81611 Telephone: (97o) 925-260o Facsimile: (97o) 925-472o 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 Site Plan Review Application for a Driveway, Resolution No. 070-2013 (the "Resolution") Dear Commissioners: We represent GSS Properties, LLC, the owner ("Applicant") of the Property located on the north side of Woody Creek Road and fully described in Exhibit A attached hereto and by this reference incorporated herein (the "Property"). The Applicant submitted an application to the Board of County Commissioners (the "BOCC") to obtain Site Plan Review approval for a driveway, as required by Condition #4a of BOCC Resolution No. 099-2011. At its hearing of the referenced Site Plan Review application on September 11, 2013, the BOCC denied the Applicant's Site Plan Review for a driveway. 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 000003 AUSTIN, PEIRCE & SMITH, P.C. Attorneys at Law Board of County Commissioners of Pitkin County October 2, 2013 Page 2 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 a Driveway Activity Envelope 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 nineteen months exploring and developing various options for locating a driveway within the approved Driveway Activity Envelope that would meet the Site Plan Review criteria and Condition #4a of BOCC Resolution No. 099-2011. The Applicant submitted the Site Plan Review application for a driveway on March 25, 2013 that was the subject of the referenced Resolution and which was denied by the BOCC. As a result of the denial of the Site Plan Review application for the driveway, the Applicant is back to the same position in which it found itself when its Activity Envelope application was denied by Administrative Decision No. 27-2011; that a taking has occurred, because the Applicant is precluded from accessing its Property, and the Applicant requests a hearing on the matter as set forth in Section 2-40-150 of the Code. Pursuant to the Code, the BOCC is supposed to conduct a hearing within forty- five (45) working days of the receipt of the within request for a hearing that a takings has occurred. Because the Applicant is currently working with neighbors to acquire a mutually acceptable easement for access to the Property through the neighbor's property, the Applicant is willing to relax the 45 working day deadline, if that is acceptable to the BOCC. If an agreement is reached with the neighbor for access, then the request for a takings hearing becomes moot; if one cannot be finalized, then the BOCC can conduct the hearing thereafter. Please confirm whether it is possible for the BOCC to delay the hearing until the access easement issue with the neighbor is resolved one way or the other, or whether the BOCC will conduct the hearing within the 45 day period. 000004 F 1Files M-Z\Stranahan\GSS Properties, Sun Mesa Takings\GSS Takings Letter.doc AUSTIN, PEIRCE & SMITH, P.C. .Attorneys at Law Board of County Commissioners of Pitkin. County October 2, 2013 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. FFP/hs cc: James L. Curtis John M. Ely, Esq. 000005 Very truly yours, AUSTIN, PEIRCE &SMITH, P.C. By: Frederic , ' - ce F \Files M-Z\Stranahan\GSS Properties, Sun Mesa Takings\GSS Takings Letter.doc RECEPTION#: 603981, 09/24i2013 at 10:27:20 AM, 1 of 3, R $0.00 Doc Code RESOLUTION Janice K. Vos Caudill, Pitkin County, CO RESOLUTION'OF THE I3OARII OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, DENYING THE GSS PROPERTIES LLC SITE PLAN REVIEW FOR A DRIVEWAY Resolution No.d-2013 RECITALS 1, GSS Properties L1.0 ("Applicant") applied to the Board of County Commissioners ("BOCC") to obtain Site Plan Review approval for a driveway. 2. 'File 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. 27-201 1. The Director found that that the activity envelope for the residence complied with the Code. but that the driveway envelope 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 fund that a taking had occurred as a result of the denial, and remediated the taking by approving Activity Lnvclopes, pursuant to Resolution No. 099-2011. The Activity Envelope Plan was recorded in Plat Book 102 at Pages 55-57. The Protective Covenants restricting the property against further subdivision into smaller lots was concurrently recorded as Reception #597704. 6. The 13OCC found in Resolution No. 099-2011 that the approved driveway envelope was the most appropriate of the alternatives considered, since it avoided any impact on the wildlife movement corridor within the draw to the southeast; the visual impacts could be mitigated to the extent feasible; and the driveway envelope was sited to provide appropriate sight distances in both directions. 7. Condition #4a of Resolution No. 099-2011 requires the Applicant to submit an application for Site Plan Review for the driveway, prior to submission of any building permit applications, and states that the Site Plan application shall include. —A detailed plan and profile for the driveway, based on 2' contours, and a detailed revegelation and landscape plan I'or the area along the driveway. The Applicant shall reduce the visual impact of the retaining walls to the extent feasible through the use of tiered retaining walls designed to avoid large monolithic expanses of wall; planting areas between the tiers with adequate vegetation to break up the expanse of the walls; facing of the walls with stone or earth -colored materials; and undulation of the heights ot'the retaining walls to vary with the topography. The retaining walls required for the driveway may exceed the retaining wall guidelines in the Code — there may be more than two tiers and a retaining wail may exceed 7' in height." 8. The BOCC considered the Site plan Review application fur the driveway at duly noticed public hearings on June 12, July 10. August 14 and September 11. 2013. at which times evidence and testimony were presented with respect to the application. 9. The BOCC finds that the proposed driveway does not comply with the intent of the Scenic View Protection provisions in Sec. 7-20-120 of the Code, as follows: -Resolution IVo. 020-2013 Page 2 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 minimised to an acceptable extent. C. The driveway is inconsistent with and degrades the rural character of the Woody Creek area. 10. The BOCC further finds that the proposed driveway does not satisfy Condition #4a of Resolution No 099-2011, as the visual impact of the retaining walls has hot been reduced to an acceptable extent. NOW, THEREFORE, BE IT RESOLVED by the BOCC that it hereby denies the GSS Properties 1,1.0 Site Plan Review for a driveway. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 9th day of May, 2013. 5-cpfe r DENIED this tf?'t' day of J.u1=, 2013. S"I' Jeknn tte Jones. Clerk t the BOCC API'ROVE1) AS TO CONTENT: Cindy 1-iouben Community Development Director P032-13 P11) #2643151100021 BOARD OF COUNTY COMMISSIONERS, 1'ITK1N COUNTY, COI, RADO 13y r - George Ne% APPROVE[) AS "ro FORM: 000aa i, EXHIBIT "A" LEGAL DESCRIPTION A tract of land situated in Government Lots 1, 6, 7, $ and 14, Section 15, Township 9 South Range 85 West of the 6th P.M. Being a portion of the Stranahan Ranch as conveyed by Warranty Deeds recorded as Reception Nos. 106364, 110053 and 113671 (Barbier to Sandersen) of the Real Estate Records of Pitkin County, Colorado described as follows: Beginning at the East 1/4 comer of said Section 15; thence North along the Easterly lines of Government Lots 7, 6 and 1 to the Northeast comer of said Section 15 also being the Easterly comer of the Stranahan Wells Subdivision Exemption Map No. 2 recorded in Plat Book 26 at Page 86 of the Real Estate Records of Pitkin County; thence Southwesterly S 46°50'29"W along the Southeasterly boundary of said Stranahan-Wells Subdivision to a point which bears N. 53°03' W from the Northwest corner of that parcel described in said Reception No. 113671; thence S 53°03' E 875.6 feet more or less to the Northwest corner of said Reception No. 113671; thence Southwesterly and Easterly along said Reception No. 113671 S 63°10' W 466.8 feet; S 68°2T W 603.5 feet to the Northerly line of a County Road; S 41°43' E 302.1 feet along Northerly line of County Road; S 51°22' E 520.0 feet along Northerly line of County Road; S 62°09' E 608.7 feet along Northerly line of County Road; N 89°23' E 476.2 feet more or less to the Easterly line of said Lot 14; thence North along the Easterly line of said Lot 14 to the point of beginning. Excepting therefrom that certain tract of land described as beginning at a point 20 feet South of the Salvation Ditch and on the South line of said Lot 6, thence North 100 feet, thence East to the East line of said Lot 6, thence South 100 feet to the said South line and thence West along said South line to the place of beginning. uCNA GSS Properties, LLC Sun Mesa Property ancw.-cos. F...or.. 9004I9-0+12 300 EMann, Fv. 2M Nom Few,. CO 01011 o603o 0 No 100 t5E • • IOW aalfe eh i1..ueAdeOd VOT WV 'Too of 9cpa Ft... 1K 0 . u .la...h.nm. rm Wu... Oa. e. Yc.ue n W. 190' .40.ck 40 1ti 190. 4•10.00.00.1,0eem '000,e.0 w...aa s 1•nr.De nn with%ea.* eerwr.. F.... lµ p.., W. rwm w.Fr Nerd er ksduum.'0932011, Ladeen 91. I eC 0 2of3 -00 0010 • • M —MIo COMM" +ru rano N M r.nr Nem von.. 4101.1.tla ■ • Roadway Section C-C - Highest MO Condition .74.14 1E1.01211,101,0 WAS Typ cal Roadway Section B-B - a Turnoff Area of peeper Shelf .PR rp.. r.• - warn. c,:ce. PO. 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E41IGA11014 FOR skines. pie Tonao. .F•500 SF - AREA HELM 04J WALL PEAR START 194E861 GSS Properties, LLC Sun Mesa Property Jim Octft • CuLa Am:clots* SOO E limos Am 2nd Fsoot Mom CO 61611 370-313-0002 Om Fawn Ammoca Y.O. Rev R97, Snwww. CO 11654 676-927-06E1 12 Landscape Plan - Lower PortionN 7 to- toommor LSOI . cum. • 5I.C5.011t 5.5.1•11. • Y, 31. • SCE . 15 .5111,115,_. • o 5 , .1 }m...,a1•• 8 rr,a.aw..,,mpaturopo wa; PLANT SCHEDULE 0AIMLEI OWL ETC • PROTECT PIMP em.vrmn YEW P•Mal MK MSC. AilW a '63 OMM. save PM MN Ark ..10.11YE IaNM PER RAN RCENI M +tile.. . 000012 • mac-.,. GSS Properties, LLC Sun Mesa Property .MCut,- Ameba. 300E +y*-. F.. the ROW. WINO, C9 a 1611 010.104.1 [Pm Pan. ww w.n r.a lap eel. s.c....-.. C04,654 e7o-.z7ases 15 30 ..,q. mn.d.no.a,e.o�rr w.x rrlir Landscape Plan - Upper Portion oswc woo Pop 30 0 u ta w u con 0 z IC a r.I a u 9