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1 OF 8, R $0.00 Doc Code RESOLUTION
Janice K. Vos Caudill, Pitkin County, CO
RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, FINDING A TAKING AND REMEDIATING THE TAKING BY APPROVING THE
LYLE D. REEDER TRUST ACTIVITY ENVELOPE
Resolution No. 2014
RECITALS
1. The Lyle D. Reeder Trust ("Applicant') applied to the Community Development Director of Pitkin
County ("Director") to establish an Activity Envelope that would encompass the previously approved
Building, Access and Landscape Envelopes. In addition, a Geo -Hazard Mitigation Envelope is proposed
above the Building Envelope to accommodate rockfall hazard mitigation.
2. Neighbors Terry and Cynthia Taylor, Jay Kuhne and Michael Behrendt submitted an objection to the
application, due to the hazards on-site. Therefore, the application was continued to a public hearing before
the Hearing Officer, pursuant to Sec. 2-20-170(a)(4)(c) of the Land Use Code (`Code").
3. The property is located at 333 S. Second St., and is more specifically described as Tract A of Parcel
A of Government Lot 20 Subdivision Exemption, according the Plat thereof filed January 8, 1993 in Plat
Book 30 at Page 23.
4. The parcel contains 39,261 square feet and is a conforming size parcel in the R-15 zone district.
5. The Planning Commission granted 1041 Hazard Review approval, pursuant to Resolution No. PZ -91-
45. The 1041 hazard review site plan was recorded in Plat Book 27 at Page 72.
6. The Board of County Commissioners ("BOCC") approved Resolution No. 93-38, which granted
subdivision exemption approval to create separate parcels from Government Lot 20, which were sold and
given to the Pitkin County Open Space and Trails Board to develop a trail. The subdivision exemption
plat was recorded in Plat Book 30 at Page 23. The original property contained 61,249 square feet and
two separate parcels. A note on the plat specifies that "all development rights, including floor area ratio'
associated with the original Lot 20 are reserved for the benefit and use of Tract A.
7. The BOCC denied a request for an extension of vested rights pursuant to Resolution No. 98-198, since
the building envelope was located on slopes in excess of 30% and within rockfall hazard areas, where the
Code prohibits development. The Applicant requested a takings determination as a result of the denial, and
the BOCC subsequently found pursuant to Resolution No. 99-178 that the denial did not constitute a
taking.
8. The Hearing Officer granted 1041 hazard review, conceptual submission and special review approval
for a single family residence and caretaker dwelling unit, pursuant to Determination No. 32-2002. In the
decision, the Hearing Officer specifically found that the building envelope had limited exposure to potential
rockfall hazards. The 1041 hazard review site plan was recorded in Plat Book 65 at Page 16. The Hearing
Officer subsequently amended the approval, pursuant to Determination No. 1-2003, to specify the maximum
allowable Floor area (9,800 square feet, not including subgrade space and garage); and pursuant to
Determination No. 25-2003, to permit drilling of a well as an alternative to City water service.
Resolution No.ld1 -2014
Page 2
9. The BOCC granted an extension of the vested rights, pursuant to Resolution No. 006-2006. An
amended 1041 hazard review site plan was recorded in Plat Book 79 at Page 75. The vested rights expired
on February 8, 2009.
10. The Hearing Officer denied the Activity Envelope Review, pursuant to Determination No. 6-2014,
finding that the activity envelope is within a rockfall area, where development is prohibited by Sec. 7-20-
50(c) of the Code, and that portions of the envelope encroach on slopes in excess of 45% and 30%,
where development is prohibited by Secs. 7-20-20(b) and (c) of the Code.
11. The Applicant submitted a request for a takings determination pursuant to Sec. 2-40-150 of the Code
to determine whether the Hearing Officer's denial of the application constitutes a taking of private property
withoutjust compensation.
12. The BOCC considered the takings request at a regular meeting on November 5, 2014, at which time
further evidence and testimony were presented with respect to the taking.
13. The BOCC determined that a taking had occurred pursuant to Sec. 2-40-150(d) of the Code, based on
the following findings:
A. The entire property is within a rockfall hazard area and there is no hazard -free area on the
property on which development could occur.
B. The proposed Activity Envelope is the best possible location on the property for development.
C. The denial constitutes a taking of all reasonable use and economic return on the property.
14. The BOCC further finds that Sec. 7-20-50(c) of the Code provides for development within a rockfall
hazard area subject to mitigation, in order to grant relief in the event of a denial and subsequent taking
determination.
15. The BOCC further finds that the Activity Envelope complies with the following provisions of the
Code:
A. The Building Envelope primarily contains slopes of less than 30%, but does include some areas
of slopes in excess of 30% and 45%. These areas comply with Sec. 7-20-20(c)(3) of the Code,
Minor Slope Anomaly, which allows development on slopes in excess of 30% and 45% "when
the slope is due to the presence of a minor natural or man-made change in the gradient of a
continuous slope...."
B. The Access Envelope primarily contains slopes in excess of 45%. Approximately half of the
portion of the Landscape Envelope adjacent to the Midland Trail contains slopes of less than
30%, while the other half contains slopes in excess of 30% and 45%. The steep slopes in these
envelope are anomalies resulting from the construction of the railroad platform and now the
Midland Trail, and also comply with Sec. 7-20-20(c)(3) of the Code.
C. The wildfire hazard is rated as medium and can be mitigated, pursuant to the provisions of Sec.
7-20-60(c) of the Code.
16. The BOCC considered the remediation at a regular meeting on November 19, 2014, at which time the
conditions of approval for the remediation were accepted.
Resolution No.l&_-2014
Page 3
NOW, THEREFORE, BE IT RESOLVED by the BOCC that the denial of the Lyle D. Reeder
Trust Activity Envelope Review constitutes a taking pursuant to Sec. 2-40-150 of the Pitkin County Land
Use Code.
BE IT FURTHER RESOLVED by the BOCC that it does hereby remediate the taking by
granting approval, subject to the following conditions, which shall run with the land and be binding on all
successors in interest:
1. The Applicant shall adhere to all material representations made in the application or in public
meetings or hearings and shall consider those representations to be conditions of approval, unless
amended by other conditions.
2. Prior to submission of the Site Plan Review application, the Applicant shall be required to submit for
approval by the County Attorney and Community Development Director an Activity Envelope Plan
in accordance with Land Use Code Section 2-30-20(g) and Application Manual Section 2.1.1. The
above referenced approvals shall be a condition precedent to finalization and recordation. The
Activity Envelope Plan shall be amended as follows, prior to submission for recordation:
A. Eliminate the portion of the "Landscape Envelope" that extends onto slopes in excess of 45% to
the north of the "Building Envelope."
B. Add a note specifying that the "Geo-I-lazard Mitigation Envelope" may only be used to
accommodate a rockfall barrier above and separate from the residence, if that is determined to be
the appropriate mitigation, and to provide landscape screening around the rockfall barrier.
This Resolution repeals and replaces Resolution No. PZ -91-45; I-learing Officer Determination Nos.
32-2002, 1-2003 and 25-2003; and BOCC Resolution No. 006-2006.
4. Prior to submission of any building permit applications, the Applicant shall be required to submit for
approval an application for Site Plan Review, pursuant to Secs. 2-30-20 and 7-10-50 of the Code,
which application shall be reviewed by the Board of County Commissioners. In addition to all other
standard requirements, the Site Plan application shall include:
A. Site and structure -specific rockfall mitigation designed by a qualified professional engineer or
geologist licensed in the State of Colorado, which plan shall be referred to the Colorado
Geological Survey for review as part of the Site Plan Review process. The Applicant shall
address the timing for mitigation of the hazard to ensure the safety of the site during
construction.
B. Driveway plan and profile, which shall be referred to the City of Aspen Engineer to ensure
compliance with the City's requirements for access and development within the Second Street
right-of-way.
C. Plan for reconstruction of the Midland Trail in conjunction with construction of the driveway,
which plan shall be referred to the City of Aspen Parks Department and Pitkin County Open
Space and Trails for review.
D. An engineer or geologist licensed in the State of Colorado shall demonstrate that the site can
be engineered so that there is no hazard posed by the. location of development on slopes in
Resolution No.11--2014
Page 4
excess of 30% and 45%. The Site Plan shall demonstrate compliance with the engineer or
geologist's recommended mitigation measures, and shall show the area of disturbed slope,
any re -grading required and the exact size and location of all mitigation devices. The
mitigation measures must be determined by the Community Development Department to be
the least visually and ecologically obtrusive alternatives. To the extent possible, the
'development shall be designed so as to: avoid adding water to the site that would cause
decreased stability; avoid removing the toe of the slope without adequate mechanical
support; avoid increasing the weight load on top of the slope; re -contour disturbed slopes so
that they can be re -vegetated; avoid steepening of existing slopes.
E. A Phase I environmental site assessment to determine if any contaminated soils may be present.
F. An analysis from a qualified expert of potential subsidence on the property due to past mining
activities.
One or two single family residences may be built on the parcel, based on the 1992 contract with the
County and the note on the plat recorded in Plat Book 30 at Page 23. The maximum allowable floor
area shall be 9,800 square feet, based on the original lot size of 61,249 square feet. If two residences
are constructed, one residence shall contain no more than 1,343 square feet of floor area and the
second residence shall contain no more than 8,547 square feet of floor area. If one residence is
constructed, the residence shall contain no more than 9,800 square feet of floor area. 5,750 square
feet of gross floor area is exempt from growth management for each residence.
6. Concurrent with submission of a building permit for a single family residence, the Applicant shall:
A. Provide proof of an adequate water supply (in terns of quantity and availability) for domestic and
fire protection purposes, and for irrigation purposes, if applicable.
B. Demonstrate compliance with the requirements of the Aspen Consolidated Sanitation District.
C. Submit a drainage and erosion control plan for review and approval by the Planning Engineer. If
the total development disturbs one ( I ) acre or more, the Applicant shall apply for and obtain a State
Stormwater Permit. All historic and natural drainage patterns shall be maintained. The plan shall
be referred to the City of Aspen Engineer for review.
D. Submit a construction management plan for review and approval by the Planning Engineer. The
plan shall include provisions to ensure that the Midland Trail remains open and safe for
pedestrian and bicycle traffic during construction, which provisions shall be reviewed and
approved by the City of Aspen Parks Department.
E. Submit a detailed revegetation plan for disturbed areas with appropriate seed mixes.
F. Submit a tree mitigation plan if any trees with larger than 6" DBI -1 are to be removed.
G. Submit a lighting plan.
7. Prior to issuance of a building permit, the Applicant shall:
A. Pay the applicable road and housing impact fees.
B. Obtain a driveway/access permit, which shall be approved by the Planning Engineer and the Aspen
Fire Marshal. The driveway/access permit shall also be reviewed by the City Engineer to ensure
compliance with City Code requirements. The driveway must be located within the access
easement shown on the subdivision exemption plat recorded in Plat Book 30 at Page 23.
Resolulion No/,p -2014
Page 5
C. Obtain a City of Aspen right-of-way permit for the driveway cut and any other work or
development within the City right-of-way.
D. Obtain a fireplace/woodstove permit from the Community Development Department, if applicable.
8. Prior to commencement of any earthmoving or construction activity, the Applicant shall stake the
corners of the activity envelope and install construction fencing around the perimeter of the
envelope. The fencing shall remain in place until a Certificate of Occupancy is issued for the
residence.
9. No development, including grading, excavation, fill placement, landscaping, vegetation removal or
disturbance, well, and temporary or permanent parking areas shall occur outside of the approved
Activity Envelope, except for the driveway and as may be necessary to implement the wildfire
mitigation measures required elsewhere in this document. Utility and driveway extension and
maintenance shall occur within the approved activity envelopes.
10. The Applicant shall comply with the following wildfire mitigation standards:
A. Brush, debris, and non -ornamental vegetation shall be removed within a minimum 10 foot perimeter
around the structure.
B. Vegetation shall be reduced to break up the vertical and horizontal continuity of the fuels a
minimum of a 30 foot perimeter around the structure.
C. Spacing between clumps of brush and vegetation within the 30 foot perimeters shall be a minimum
of two times the height of the fuel. Maximum diameter of the clumps shall not exceed 10 feet. All
measurements shall be from the edges of the crowns of the fuel.
D. All branches from trees and brush within the 30 foot perimeter shall be pruned to a height of 10 feet
above the ground and ladder fuels from around trees and brush shall be removed.
E. Tree crown separation within the 30 foot perimeters shall have a minimum of 10 feet between the
edges of the crowns.
P. All branches which extend over the roof eaves shall be trimmed and all branches within 15 feet of
the chimneys shall be removed.
G. The density of fuels within a 100 foot perimeter of the structure shall be reduced.
H. All deadfall within the 100 foot perimeter shall be removed.
1. Low vegetation shall be maintained within a 10 foot perimeter around all structures.
J. The applicant shall be responsible for the continued maintenance of the defensible space vegetation
requirements.
11. The Applicant shall comply with the following additional wildfire mitigation standards:
A. Roofs shall be constructed with a Class A roof covering or a Class A assembly as defined in the
International Building Code (IBC) Section 1505.2. Wood shake/shingle roof coverings are
prohibited. Roofs with less than a 3:12 pitch are not permitted unless they comply with the
following:
1. All roof coverings shall be noncombustible materials and installed on a Class A roof assembly.
2. All roof coverings shall have a surface that shall facilitate the natural process of clearing the
roof.
Resolution No. 14 -2014
Page 6
3. All roof designs shall facilitate the natural process of clearing roof debris. Protrusions above
the roofline, such as parapets, shall be prohibited.
4. Roofs shall be installed as required by UBC 1997 Chapter 15 and shall have a minimum slope
of 1:48.
5. All roof designs, coverings, or equivalent assemblies shall be specifically approved by the Fire
Marshal prior to submittal of a building permit application.
B. Roof Venting
I. Soffit venting shall be located in the outer 1/3rd portion of the overhang.
2. Attic, soffit and other roof venting shall be of non -corrosive metal mesh with maximum '''A"
openings.
C. Projections at the Roofline, including Soffits, Rafters, Porch or Deck Roofs, Fascias, or Other:
1. Sheath with non-combustible materials, or
2. Combustible materials underlain with 5/8" Type X gypboard or equal, or
3. Minimum 4x6 rafters with 2x T&G decking.
D. Decks, Decking, Cantilevered Floors, or Other Projections Below the Roofline: Minimum 6x6
posts, 6xI0 beams, 3x8 joists, 3x decking, and 2x railings, or equivalent log construction.
E. Roofs and gutters shall be kept clear of debris.
F. Yards shall be kept clear of all litter, slash, and flammable debris.
G. All flammable materials shall be stored on a parallel contour a minimum of 15 feet away from any
structure.
H. Firewood/wood piles shall be stacked on a parallel contour a minimum of 15 feet away from the
structure.
1. Swimming pools or ponds shall be accessible to Fire Department vehicles.
J. Fences shall be kept clear of brush and debris.
K. Wood fences shall not connect to the structure.
L. Fuel tanks shall be installed underground with an approved container.
M. Propane tanks shall be installed according to NFPA 48 standards and on a contour away from the
structure with standard defensible space vegetation mitigation around any above -ground tank. Any
wood enclosure around the tank shall be constructed with materials approved for 2 hour fire -
resistive construction on the exterior side of the walls.
N. Each structure shall have a minimum of one 10 pound approved ABC fire extinguisher placed in a
visible and accessible location.
O. Addresses shall be clearly marked with 2 inch non-combustible letters and shall be visible and
installed on a non-combustible post.
P. New utilities shall be buried within the Activity Envelopes.
12. Exterior lighting shall comply with the County's lighting regulations in effect at the time of installation.
13. All areas disturbed by construction shall be revegetated with native shrubs and grasses within one
growing season of the project's completion.
Resolution No.#6 -2014
Page 7
14. The Applicant shall comply with the applicable codes and requirements of the Aspen Fire Protection
District, including but not limited to access, adequate area for turning around of fire equipment,
installation of an approved fire sprinkler system and provision of an adequate water supply for
firefighting.
15. The Applicant shall comply with the following measures to mitigate impacts to wildlife:
A. Native vegetation shall be maintained outside of the activity envelope.
B. Provide waste storage that complies with the County Code regarding bear -proof containers.
C. Avoid fruit -bearing trees and shrubs in any landscaping.
D. Construction workers shall be prohibited from bringing dogs on-site during construction.
F. All outside doors shall utilize only solid round handled door knobs unless another type is required
by the applicable building code for disabled accessibility purposes.
F. Bird feeders, including hummingbird feeders, shall be hung away from any deck or window, and
shall be at least 10' from the ground suspended between 2 trees or posts. All seed feeders shall
include a seed catchment pan to catch discarded seeds.
19. No development in excess of 30" above or below natural grade shall occur within the setbacks of the
lot, with the exception of driveways and associated retaining walls of up to 6' above or below natural
grade and fencing. Landscaping in the form of berms shall not exceed four feet from the most
restrictive grade. Any development located within setbacks mandated by County zoning regulations
that does not comply with these restrictions shall require a variance from the Board of Adjustment.
Approval of an activity envelope within such setbacks does not assure approval of a variance.
20. Failure to comply with the conditions of this approval may result in revocation of this approval, or
any subsequent permit(s) or approval(s) related to this property, or vested rights associated with this
property.
21. Statutory vested rights for the approval contained herein are granted pursuant to the Pitkin County
Land Use Code and Colorado Statutes, subject to the exceptions set forth in Pitkin County Land Use
Code, § 4-140 and C.R.S., § 24-68-105. The statutory vested rights granted herein shall expire on
November 19, 2017.
Resolution No.1U6 -2014
Page 8
A
APPROVED AND ADOPTED this 19th day of November, 2014.
PUBLISHED AFTER ADOPTION F02 VESTED REAL PROPERTY RIGHTS in the
Aspen Times Weekly on the nay of 2014.
Jones, Cler to the BOCC
✓ED AS TO FORM:
John Ely,
County ey
P027-14;PID#273512420001
BOARD OF COUNTY COMMISSIONERS
OF PIT�KIN /COUNTY; COLORADO
Robert A. Itmer, Chair
Date lL q t
APPROVED AS TO CONTENT:
CQA���
Cindy Flouben,
Community Development Director