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HomeMy WebLinkAboutbocc.min.spec.07162002 /TUESDAY,JULY 16,2002 V 11:00 SPECIAL MEETING Eubanks Appeal of Administrative Decision—T. Pregl (continued from June 25) ADJOURN SPECIAL MEETING 12:00 NOON WORKING LUNCH 1. Memos of Interest 2. Future Agendas/Agenda Requests Board Membership Reports RTA, Housing,NWCCOG & QQ, ACRA, CCI, RRR, RWPA Open Discussion 1:30 PM 3. Snowmass/Capitol Caucus Master Plan Update, Ellen Sassano 2:15 4. Landfill Tip Fee Adjustment and Contract Revision, Miles Stotts 4:00 JOINT MEETING WITH CITY COUNCIL—in Council Chambers Annexation, Chris Bendon, Ellen Sassano 5:00 PM ADJOURN 6:30 PM Crystal River Caucus Meeting Location: Redstone Church APPROVED AUGUST 28,2002 MINUTES PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS SPECIAL MEETING JULY 169 2002 CALL TO ORDER: Chairperson Clapper called the special meeting to order at 11:14 AM. COMMISSION MEMBERS PRESENT: Commissioners Patti Kay-Clapper, Mick Ireland, Shellie Roy, Dorothea Farris and Jack Hatfield COMMISSION MEMBERS ABSENT: None RESOLUTION DENYING THE APPEAL OF BONNIE AND BILLY R EUBANKS OF ADMINISTRATIVE DECISION—MOTION APPROVE Tamara Pregl—County Planner;Bonnie Eubanks and Billy R. Eubanks—Appellants; Herb Klein— Appellants' Representative; Mitch Haas—Private Planning Consultant John Ely,County Attorney,proceeded with his presentation on this matter. Mr. Ely explained that this appeal was a continuation of an appeal filed by the Eubanks. The appeal was initially heard by the board and was continued due to the fact that we were running out of time to conclude the matter. Mr. Ely passed out some Code sections. These Code sections, Mr. Ely stated, are basically for the boards' ease of reference. These sections have been talked about extensively by Mr. Klein during his presentation and referred to by Ms. Pregl in her staff memorandum regarding the appeal. Said Code sections are attached hereto and made a part of this record as EXHIBIT "A". Mr. Ely also submitted for the record the draft resolution of denial. Said draft resolution is attached hereto and made a part of this record as EXHIBIT "B". Mr. Ely went on to note, for the record, that the board received a letter dated July 09, 2002 from Wayne F. Forman and Mark J. Mathews of the law firm Brownstein, Hyatt, Farber. Attached to that letter is a July 15, 2002 letter from the same gentlemen noting an error in the sequence of exhibits in the July 09, 2002 letter. Herb Klein, appellants' attorney, said that he received the same July 09, 2002 letter yesterday and that he would like to object to its inclusion into the record as this is not a public hearing. He said that he doesn't think there is any basis to put extraneous materials from third parties into our record. BOARD OF COUNTY COMMISSIONERS 1 SPECIAL MEETING JULY 16,2002 Mark Barnes, attorney with Brownstein, Hyatt, Farber, addressed the board regarding Mr. Klein's objection. He said that he realizes this is not a public hearing and appreciates the board hearing him on this. He went on to say that his firm has not received formal notice of this. He said the firm had participated in previous hearings in court, even court cases. He said his firm represents Arapahoe Ridge who is the owner of the adjacent Lot 1. He said that it was the firm's understanding that this letter could be made part of the record and that they addressed the issues raised in the hearing. Mr. Barnes went on to say that if it is appropriate at the end of this meeting, he would like to highlight a few of the points he has made in that record and in the letter. But, he said, he thinks it is appropriate, at least, to make that letter a part of the record as his firm has participated in previous proceedings. Mr. Ely responded to Mr. Barnes' remarks. He said that the hearings are abbreviated, particularly in light of Colorado Rules of Evidence. But, he said,the board has traditionally accepted materials concerning matters that were not noticed and did not need to be noticed as public hearings even though the board has not opened that up to a wide public discussion or has entertained material in the past from affected parties. In this case,the neighbors to this affected property are presenting it. In fact, the other lot in this subdivision. Mr. Ely went on to say he doesn't see any particular problem with the board accepting this and hearing it and he would bring it back to the board to make that decision. Mr. Klein said that if this thing ends up in court certainly the neighbors could attempt to intervene in that case. And, general speaking he said, based on current experience the local courts are fairly generous in their willingness to allow the affected parties to intervene in litigation. It's not like, he said, their issues won't be heard. But for the delays we've had with this matter, this is dated July 9t', he said, and was just received yesterday and he said he believes it is really a kind of eleventh hour piece of work here. Mr. Klein said that he thinks it is inappropriate, under these circumstances, for the board to allow this into the record. He said he thinks it will create other issues, which he could not argue, which he's not given the opportunity to argue. He said that he doesn't think the board would be depriving them of any rights if they refuse to put it into the record, but they could be affecting his clients' rights if they do. Commissioner Farris said the point is to find as much information as the board can before they make a decision. So, she went on, to the point that more information is better and she has no problem with listening to it. Commissioner Ireland said that his view is, having read the letter that he doesn't see any arguments that probably won't be raised by our own counsel. With all due respect, he continued, maybe based more articulately or in a different manner. He said that the board, traditionally, has tried to have open proceedings and allow everybody to do this. And whether you want to look at this as a friend of the court brief or simply an argument from an adjacent landowner he said the board would be open to that. However, he said, he doesn't want to prejudice Mr. Klein's ability to respond to the arguments if he thinks they're novel or he hasn't had a chance to prepare for BOARD OF COUNTY COMMISSIONERS 2 SPECIAL MEETING JULY 16,2002 them. And, he said, if they really, really, really, want to continue this so they can prepare a response to what they see here, I'll give it to them. Commissioner Ireland went on to say that he doesn't want to continue this thing unnecessarily but he doesn't want to prejudice either side. He doesn't want to prejudice him by not letting him respond to the argument and I don't want to exclude what may be relevant argument from consideration from this board because we've always had this position of letting people be heard. If Mr. Klein wants an opportunity to respond to this and he simply can't do it without extending this hearing, then we extend the hearing. Commissioner Clapper said so let's move forward and we will accept this as part of the record and if Mr. Klein wants to respond to it we will continue again, if necessary. Said letter of July 09, 2002, with the one page July 15, 2002 explanatory letter, is attached hereto and made a part of this record as EXHIBIT "C". Mr. Ely stated that the other thing he wanted the board to be aware of is that this hearing has previously discussed the events that lead up to this particular hearing. In particular, the original application that was filed in February of 2000 by the Eubanks regarding their property, lot two (2). The BOCC minutes in the conduct of a taking determination requested by the Eubanks following a denial of that application by the County's Hearing Officer. The Board of County Commissioners' resolution found that a taking had not occurred by the action of the Hearing Officer. And, Hearing Officer resolution denying the development approval, which was initially sought, as well as the accompanying staff memos. He said that he didn't generate copies of all that material because, quite frankly,the board has seen it all. He said that he just brought that down and it's here to be included in the record because it's been previously discussed and also, if anybody wants to refresh their recollection and reread it they can take a look at that. Mr. Ely said that the Code sections he passed out, shown here as Exhibit "A", are the Code sections that have been discussed during this appeal. He said that the first section, 3-80-020, Exempt Development Activities. He said that this subsection is part of section 3-80 in the Land Use Code which deals with areas of interest which is the county 1041 review section of the Land Use Code. The pertinent language in this particular subsection is in the very first sentence, he said. It reads, "the development activities listed in this section may be exempted by the Planning Director from review under this section of the Code pursuant to the procedures in section 4-30 or 4-40". Particularly, he said, subsection C has been focused on by the Eubanks. Subsection C reads, "the specific development has received approval by the Board of County Commissioners, Planning and Zoning Commission or the Planning Director pursuant to these regulations". These regulations are again referring to the section in which this subsection appears in which is the 1041 review section of the Land Use Code. The next Code section that is copied for the board is Section 3-300, which is "Appeal of Development Order". Mr. Ely said that the Land Use Code actually contains two different appeal provisions. This is the first of them. In subsection 3-300-010 any development permit BOARD OF COUNTY COMMISSIONERS 3 SPECIAL MEETING JULY 16,2002 �/ applicant or other affected party, which Mr. Ely said means that it's open to not only an applicant for development permit or approval, but perhaps a neighbor or somebody in the vicinity of the property or even the Planning staff in the form of a Community Development Director, may appeal a decision, which is a conditional approval, or denial of a development application. So, said Mr. Ely, this appeal provision in the Land Use Code is tied to action taken in response to a development application. The next subsection was 3-300-020 and spells out the parameters for various appeals. Mr. Ely said the very first subsection A. refers to an appeal of an administrative decision. Mr. Klein, said Mr. Ely, referred to this particular subsection, in his letter to the board attempting to explain why an appeal is available to the Eubanks before the BOCC at this time. This section reads, "an appeal of an administrative decision made pursuant to section 4-30 (Building Permit Review), or section 4-40 (Administrative Review) shall be forwarded to the Board of Adjustment, Planning Commission or Board of County Commissioners at the discretion of the Planning Director". And, Mr. Ely continued, the sections which refer to the processing of this type of appeal is section 4-160 for procedures and section 520 for submission contents. Mr. Ely went on to say that all the subsections in this particular appeal provision refer to section 4-160 which is the other appeal provision in the Land Use Code. And,he said, as the board can see in subsection F, the appeal in this particular section of the Land Use Code is tied to a time lime of 15 days after the particular decision involved. The next section, he went on to say, was 4-30. It is a section that deals with the ability of a landowner or representative to come in for a building permit application. It provides for categories of building permit applications, which may be approved administratively, and how those approvals and granting of a building permit application can be conducted. 4-30 provides that building permit applications are reviewed for compliance with Code standards. Category One applications may be approved, with conditions, or denied by the Planning Director if it falls in with any of these subsections. Subsection B, said Mr. Ely, is the pertinent one for this particular property as it refers to any building constructed on a platted lot located in subdivision approved by the BOCC. The next section is 4-40. Mr. Ely said that it is concerned with the abbreviated administrative review procedures which, basically, were designed to allow people to come in, obtain the ability to construct improvements on their property without having to go through a full review process to the P&Z or the Board of County Commissioners or even the Hearing Officer. In some instances, administrative review approvals can be granted. Administrative review essentially means approvals that are granted with a sign off by the Community Development Director. 4-40-010 provides that development applications, which are enumerated in this particular section, are subject to the administrative review procedures of the Code. They include as subsection A,minor reviews of a development, which avoid areas of local or State interest/1041 environmental hazards. In other words, properties that are not implicated by such concerns as wildfire, wildlife, habitat, geologic constraints can be approved by a Community Development Director's sign off. The last section that Mr. Ely attached for the board is section 4-160, which is the other appeal provision in the Land Use Code. This appeal provision relates back to the first section, section BOARD OF COUNTY COMMISSIONERS 4 SPECIAL MEETING JULY 16,2002 5 3-300, and is, in fact, referred to in that section. It reads, in pertinent part, "any applicant for a development permit or other affected party may appeal its approval, conditional approval or denial of a development application no later than fifteen(15) working days of the decision". Mr. Ely said that given those particular sections of the Land Use Code, how do they apply to the matter that's in front of the board? He said that it's staff s opinion, and he agrees, that there is no appealable decision here for the board to act on. Bonnie Eubanks had been working with staff, he said, and looking at the correspondence with the Eubanks representative to staff, including Mr. Ely's office. He said that there was an attempt to refine the issues for the Eubanks. And, in fact, letters that are issued out of the Community Development office, particularly, as well as specific email that is used as a trigger for this appeal from Cindy Houben, go to relate what the Community Development office's position is on the Code's applicability to the Eubanks property. Mr. Ely went on to say however,those particular expressions were intended to be used with a new application that would be filed by the Eubanks in an effort for the Eubanks to try and make their position clearer to either the BOCC or some other reviewing body or a court as to what the county's position is on the applicability of 1041 review sections of the Land Use Code to their property. In this particular case though, he said, after the Community Development office delivered the administrative opinions, no additional application was made. If you look at both the appeal provisions within the Land Use Code, he continued, 3-80 and 4-30 and 3-300 and 4- 160 as those sections are all interwoven, an appeal may be made only within fifteen (15) days of a decision upon an application for a development permit or building permit. In this case,the Eubanks had only made one development application. And, they have never made an application for a building permit. The development application which was made by the Eubanks was made February 14, 2000. It was decided by the Hearing Officer on May 16, 2000. The Eubanks did take another step. They requested a taking determination from the BOCC. An appeal was not made at that time but rather a request for a taking determination. That taking determination proceeded to the BOCC and was resolved by the BOCC on November 15, 2000. And, in fact, during the course of that proceeding the board may recall, cited Mr. Ely, that an inquiry was made of the Eubanks representative at that time as to why they were requesting a takings determination as opposed to a straight out deal because it appeared that their objection was not so much a loss of all economic value to their property but rather the application of the Code standards to their property. The explanation received by the board, verbally and later in writing with a letter dated September 19, 2000 by Eubanks representatives at the time, explained that they felt that the appropriate avenue for relief was a taking determination. At any rate, he continued, following that takings determination by the board with the board finding that there was no takings affected by the Hearing Officer ruling, the Eubanks then filed a lawsuit against the county to assert their position. The Pitkin County District Court heard that suit and did not afford the Eubanks any relief. Time lapsed and now there is this appeal. However, he said, by application of the Land Use Code sections dealing with appeals, particularly 4-160 and 3-300, without a development application and a decision on that development application and an appeal within fifteen (15) days of that decision, there is no timely request for appeal. BOARD OF COUNTY COMMISSIONERS 5 SPECIAL MEETING JULY 16,2002 / Therefore, Mr. Ely stated that there is no ability for the board to act today on this particular request other than deny it based on the language of the Land Use Code. He said that he thinks it is important to realize that assistance from the staff to try to frame an appealable issue for the Eubanks later in conjunction with some future application, or the discretion that accompanies the Community Development Director in the performance of her duties, as that discretion is contained in Land Use Code, is broad and is written that way to afford some relief to people coming through the county land use process so that simpler requests are handled more expeditiously than more complicated requests. Until that discretion does not amount to an appealable act, until there is a decision on an application for development an appeal trigger is not met. As part of the presentation that the Eubanks have made was discussion of the formation of their lot. Lot 2 of the Hefner Subdivision was formed pursuant to a court order. The court order was issued by the Pitkin County District Court pursuant to a stipulation entered in between the parties. The parties to that stipulation were the county and the prior owner, Mr. Hefner, who owned at that time one contiguous piece of property that was being subdivided. The stipulation and the court order allowed the subdivision of that property to occur in the creation of two lots. As part of that stipulation and court order, a subdivision plat was recorded. This property is part of a board approved and accepted and recorded subdivision. As part of the exhibits given to the board by the Eubanks, Exhibit 3 contains that court order as a result of the stipulation. Paragraph 3A of that stipulation provides at least the pertinent part that a plat shall be recorded and a location and access utility easement shall be shown. And, that the parcels of the subdivision shall be depicted and that designated building envelopes on each parcel consistent with the building envelopes shown on the Hefner Subdivision application will be recorded. The application being so long ago, Mr. Ely continued, is not maintained in the Community Development department's records. However, the subdivision plat recorded as a consequence of this order and stipulation is recorded and, in fact, maintained in the Clerk's office. Mr. Ely showed the board a copy of the recorded plat of Hefner Subdivision at this time. Mr. Ely asked the board to note that the property, as originally owned by Mr. Hefner and subdivided into two lots known as lot one (1) and lot two (2). Lot one (1), Mr. Ely said, depicts a building envelope, which is consistent with the stipulation and court order. Lot two (2) he pointed out does not depict a building envelope but it does show an existing house by depiction of an existing footprint. Given that this is a recorded document as a consequence of that stipulation and order, and given that the order requires building envelopes to be shown, this existing footprint constitutes the building envelope for this property, lot two (2). So, lot two's (2) 1041 building envelope has already been established through the court order and stipulation. The request that the Eubanks had made way back in February 2000, Mr. Ely continued, was essentially for a new 1041 envelope to allow for the construction of a new house on the property. The first section that he talked about with the board, 3-80-020, described the exemptions from 1041 review. There is no exemption within the Land Use Code that would apply to this property to allow for the establishment of a new envelope without 1041 review or for the construction of a BOARD OF COUNTY COMMISSIONERS 6 SPECIAL MEETING JULY 16,2002 /� new house, new structure without a 1041 review. Particularly 3-80-020, subsection C provides that an exception for specific development that has received approval by the BOCC, or the Planning and Zoning Commission, or the Planning Director pursuant to these regulations. This property, he said, never received a 1041 review or approval pursuant to these regulations. Therefore, an exemption does not exist. Mr. Ely continued by saying that the Eubanks pointed out numerous examples where 1041 regulations have not been applied to other lots in county approved platted subdivisions. However, he said, there has been no distinguishing analysis to relate those properties to this particular property,particularly in light of the effect of a court order or stipulation which is present in this case. In light of whether or not properties within the subdivision are improved or are vacant and whether or not they're a simple error done in the omission of the application of 1041 regulations in the past. If there was a simple error, he said, the error in the past does not necessitate duplication of the same error in the future. Regardless of any action taken by staff in the past, staff simply cannot administratively legislate provisions of the Land Use Code. That's the province of the BOCC only. And this is the only time, to Mr. Ely's knowledge, that the BOCC has had the chance to review, in particular, section 3-80-020, subsection C of the Land Use Code. It reads clearly that no exemption exists for this particular property, lot 2. And, he went on the board has the ability to adhere to the language of its Code or to legislate a change to its Code if the board feels it appropriate. Mr. Ely stated that the language as currently provided in the Code, as reflected in all of these sections, that it's staff s opinion that an appeal cannot be granted. He concluded his presentation by saying that he has attached a proposed resolution for the board to consider. Said proposed resolution is attached as Exhibit`B". It consists of recommendation for denial of this application tracking the grounds that he has just gone through. Commissioner Hatfield stated that the board is dealing in this issue before them clearly with the elements of the Code relative to exemptions, development activities, and the appeal ability or non-appeal ability of the issue. He said that the board is not dealing with a good part of the presentation by the appellant concerning the siting. He reminded the board that they had a presentation on the actual site,he guesses, in the previous 1041 application that dealt with the relocation of the envelope. He asked Mr. Ely if he were correct that now the board was only dealing with Code compliance? Mr. Ely responded that yes, he was correct. He did add, however, that an explanation from the Eubanks and their representatives of the status of the property,what their intents are and that sort of thing is all legitimate information to be considered by the board. Mr. Klein responded to Mr. Ely's comments, not necessarily in the order they were presented. He started with Mr. Ely's assertion that the building footprint shown for the existing residence on the plat is the equivalent of a building envelope and that he referred to the provisions of the stipulation to support that. Mr. Klein asked the board to keep in mind that the stipulation dealt with two properties, two different ownership's. They were the Hefner ownership and the Vought ownership. And, he said, both of them were handled identically. He said that in the applications that were submitted there were no building envelopes shown on either the Hefner parcel, which BOARD OF COUNTY COMMISSIONERS 7 SPECIAL MEETING JULY 16,2002 has an existing house,nor the Vought parcel, which had an existing house. The only envelopes that were shown on those two applications were for the vacant lots. The stipulation says designated building envelopes for each parcel, continued Mr. Klein. He would assert that that means the Hefner parcel and the Vought parcel, consistent with the building envelopes shown in the Hefner Subdivision application referred to above and consistent with the area designated as potential building area referred to on a geologic map accompanying the Vought application for subdivision referred to above. So, said Mr. Klein, those are the two envelopes. And, on those two maps, he said, you will see building envelopes only on the vacant parcels. There was no requirement to establish a building envelope for the parcels that had houses on them. So, he said he totally disagrees with Mr. Ely's assertion that the existing footprint of the house shown on that map is the building envelope that was required to be shown by the stipulation. He thinks that is not the case. He said that the building envelope was clearly labeled building envelope on Hefner and it was clearly labeled potential building area on the Vought plat and the stipulation tracked with that. Furthermore, Mr. Klein said, as was demonstrated in his initial presentation, the Vought property, which did not have the designated building envelope, was exempt from 1041 because of the stipulation. He said that he hopes he doesn't have to refresh everyone on that as he thought it was real clear about that. Mr. Klein went on to say that with respect to whether or not we have a ripe or cognizable appeal, it really is surprising and almost shocking to him. First of all, he said, we have the Planning Director whose decision is being appealed. He reads an excerpt at this time from his May 29`h letter that was submitted for the record. He said there is a quote from Cindy Houben's email to Bonnie Eubanks dated February 22, 2002 which is included in his exhibit packet as Exhibit"2". It says, in part, "you may use the February 12, 2002 letter from Tamara Pregl of my office as a continued basis for this determination. Thus, an appeal must be submitted no later than February 27, 2002. I apologize for any confusion surrounding your ability to appeal based on the February 12 letter". So, said Mr. Klein, we've got the Planning Director who has authority to make decisions saying that her decision is an appealable decision and even tells us by when we've got to file that appeal. Mr. Klein continued by saying that Mr. Ely's interpretation of the Code provisions is applicable to this and something that Mr. Klein disagrees with. Code subsection 3-300-010, which is the general appeal statement, reads that any development permit applicant, and Mr. Klein guesses that under Mr. Ely's theory the Eubanks are not permit applicants and Mr. Klein wouldn't necessarily disagree with that, goes on to say or other affected party to which Mr. Klein said the Eubanks are clearly an affected party. It goes on to read ...may appeal a decision comma. Mr. Klein said we've got that. He said that they are appealing a decision. According to Mr. Klein, the Planning Director made a decision that she said, in her email,that this is my decision and this is an appealable decision. So, Mr. Klein said the Eubanks are an affected party and that they are appealing a decision. The subsection continues on to read ...conditional approval, or denial of a development application. Mr. Klein said those are all different categories of things that may be appealed. So, he said, we are an affected party appealing a decision. So clearly to him, they have standing, they have ripeness. He said they have had a decision. He thinks it's a decision, the Planning Director thinks it's a decision and the Code says the decision is appealable, states Mr. Klein. BOARD OF COUNTY COMMISSIONERS 8 SPECIAL MEETING JULY 16,2002 /' When you get to subsection 3-300-020, Mr. Klein continued the standards do not exclude the appeal of the decision. They are saying in particular, he went on, that if you've got a decision made under building permit review or under administrative review he thinks they have an appeal of a decision, which may or may not be under administrative review or building permit review. He said he doesn't think we have to even get to that point of arguing it. He said he could argue it by saying that the Eubanks went into the Planning Office and asked if they could get a building permit. They asked if they were exempt from 1041 and, Mr. Klein says that they were told they were not exempt and that was the decision they are appealing. Arguably Mr. Klein said, that question could come under either building permit review or administrative review. But, he also suggested that the third way it could come to the board was simply an appeal of a decision by an affected party. So, he said he doesn't think that there's any question that you've got jurisdiction to handle this appeal. He said that Mr. Ely was the only staff person at this point and he is raising this issue for the first time. Mr. Klein did preface his last remark by saying that Mr. Ely did tell him about it at an earlier meeting, so he's not sandbagging. Mr. Klein said that he's been proceeding based upon the Planning Director's determination and her statement that there is an appeal and on his interpretation of the Code, which he said he thinks is real clear. So, he said he disagrees with Mr. Ely on that issue. Mr. Klein said that Mr. Ely's comment on the third issue was that the appellants were simply not exempt because they were not approved under these regulations. Mr. Klein said that was the thrust of his initial presentation. That the county has a steadfast consistently applied policy. On one level we have a policy, he said, that is uniformly applied in every single case except this one. He said that we are here in a board approved subdivision regardless of whether it was before 1041 was adopted or after 1041 was adopted and regardless of whether it was approved through a court order or not. Every single time there's a lot in a subdivision that bears the Board of County Commissioners' signature, it's exempt from 1041 or it has 1041 requirements stated in the approval. One or the other states Mr. Klein. He said we are a board-approved subdivision with no 1041 requirements stated in the approval. We are a board-approved subdivision, he said, we are exempt from 1041. Mr. Klein said that Mr. Ely's default position is that maybe it's a simple error and you shouldn't go back and compound the error. Mr. Klein said he guesses that you could say that just about anytime you don't follow your own Codes and your own policies, well we made a mistake. This time we're going to change it. Mr. Klein said that he thinks that if you were going to try and change it this time you'd have to legislate something different in the Code to change at this point. Not only would you have to legislate to exempt us, Mr. Klein pointed out, but also you would have to legislate to include us. He said there is a very clear Code section that he said he thinks codifies the policy that he demonstrated you followed. And a codification of that policy is 4-30- 020 B. which is a category one building permit application that says, "any building construction on a platted lot located in a subdivision approved by the Board of County Commissioners and recorded with the Pitkin County Clerk and Recorder". He said that's what we've got. And that was the basis for the question being asked of Cindy (Houben) in the first place, he said. So, that's his response to what Mr. Ely has said. BOARD OF COUNTY COMMISSIONERS 9 SPECIAL MEETING JULY 16,2002 n f Commissioner Roy asked if the Hefner house was ever noted on the City's desired list of historic structures. Chairperson Clapper said that the board already went through that. Commissioner Farris said that he asked for it to be historic the first time because they wanted to save it. The first time he wanted to destroy it, the second time he wanted to save it. So we've had both arguments. Bonnie Eubanks responded to Commissioner Roy's question. She said that Suzanne Reid put a letter in the file that it was a prime example of Swiss chalet. She added that it was not 50 years old. She went on to say that the board said that that was the footprint of the house and we bought a new house and then tear that down and mitigate within that 4000 square foot footprint and build a new house which would give us a house that would be about 1000 square feet. Mitch Haas,private planning consultant, stated that the City's proposed inventory list that they went through last year did not extend beyond the boundaries of the City of Aspen. Commissioner Ireland said that he has to agree with Mr. Ely's interpretation of the Code. He went on to say that both he and Francis Krizmanich were there when the Code was created and it was clear that the appeal was something that we granted to land use applicants and affected parties. It wasn't an open-ended appeal of a decision in the abstract. He said suppose he came in here and he did a land use application for 200 affordable housing units down valley and he was denied. On his application they would say he was exempt from GMQS and the board denies his application. Can he call a year later and ask the Development Director whether or not that really was exempt property? And then the Community Development Director says no, but you can appeal that. The Community Development Director was wrong. The Community Development Director does not have the right to create an appeal process for its opinion. And that is what they were asked for. It wasn't an application. Here is a letter. We are exempt. And then the Community Development Director erroneously says you can appeal that decision. That means, he said, that what you're going to get into is appeals of hypothetical applications. So asked Commissioner Ireland, can she as the Community Development Director then grant an appeal that goes to the board so that person who has not submitted an application or prior submitted an application that was denied, can then come to this board and make new laws, as it were, by appealing a decision. That is his problem, he says. That's what this does. You fought the battle and then you lost and then you call somebody up and say what a minute, I was right all along. And then they say okay you can appeal it. Commissioner Ireland said that Cindy Houben did not have the ability to grant an appeal process to this board. Now, he continued, if they wanted to do another land use application they could have done that. And then they would have had the right to come in and hash this out again. Under our Code you can file as many land use applications as you want as long as you wait six months before denials. Commissioner Ireland said that Mr. Klein's argument, which is a good argument, is that other affected parties means somebody affected by decision. But clearly, he said, other affected parties modified development permit applicants and was intended to protect the right of not only BOARD OF COUNTY COMMISSIONERS 10 SPECIAL MEETING DULY 16,2002 f ! r the permit applicant to appeal an adverse decision, but a neighbor or affected party could do so. He doesn't want to create a process that bootstraps a Community Development decision into a land use appeal process. The Commissioners then asked questions that were answered to their satisfaction by staff and by appellants' representative. Mr. Ely said that what's really going on is that the Eubanks are trying to put another house on the property and from the course of their efforts to do so, it doesn't appear that they had a real vested interest or were concerned as to what happened to the existing house or whether it is taken down or remains in some other function. What they are trying to do, said Mr. Ely, is get another house built on that property. The like the property, they don't particularly like the house, and they want another house. The 1041 regulations of the county,particularly those concerning geologic constraints, prohibit that kind of development. So,there's an effort by the Eubanks to get around the Code. And, continued Mr. Ely, the first argument that surfaced, so to speak, was that the Code was illegal and that it was in contravention of the State Statutes. That argument didn't work, he said, so now the argument, in effect, is that you shouldn't apply the Code provision that now has been determined legal. You shouldn't apply this Code provision to our property to deny the request to see another house built on the property. Commissioner Hatfield is deeply troubled by the fact that our Planning Director straightforwardly and in plain language said they could appeal. He said Mr. Ely's answer to that was you've made a mistake once, don't do it again. He asked Mr. Ely if basically that is what he was saying? Mr. Ely said that the letter and the email say whatever they say. He said that his opinion on that, given the dialogue that was going on,was that there was an attempt on the part of staff and everybody to work with the Eubanks to help them clarify their position as to whether or not those Code sections should apply to their property. In that clarification and in anticipation of a development application, which could be the same application all over again and which would produce perhaps,the record that the Eubanks were looking for. The legal point that he is raising, he said, is that nobody in this county has the right to legislate other than the board. And the boards' legislation of the Code is what it is. And, a policy statement for history of applications or anything else can't change what the board legislatively adopts. Only the board can change that. Commissioner Hatfield asked if there have been any other cases in our land use history where the board applied 1041 to existing subdivisions and how did the board handle those cases? He said he clearly would support the Code but also wants to be fair to the applicant. Lance Clarke responded by saying that staff has not done any research on that so he could not give an answer to Commissioner Hatfield on other cases where 1041 was applied. Discussion ensued on Commissioner Hatfield's questions. BOARD OF COUNTY COMMISSIONERS 11 SPECIAL MEETING JULY 16,2002 I Mr. Ely stated that what he would refer the Commissioner to was simply the Code section on exemptions from 1041. He said there is no exemption in there for board approved platted subdivisions. There is only an exemption in there for a remodeling, expansion or reconstruction of an existing structure of certain construction that has a minimum value and for development activity that has received a 1041 approval already. He went on to say that this particular lot was created pursuant to a court ordered stipulation of settlement of litigation, which created the subdivision. It is certainly a board-approved subdivision. The board approved it as they agreed to the stipulation. The application is just not around to refer to as so much time has gone by. But,the stipulation is as a recorded document. And, the stipulation says that designated building envelopes,plural, on each parcel consistent with the building envelope shown in the Hefner Subdivision application. So, the only available information to the board now is that here is the language of the order, here is the recorded plat of subdivision. The order required that plat to be consistent with the application. Therefore, he continued, without any evidence to show otherwise the assumption that Mr. Ely makes is that the recorded plat is consistent with that application. And, that application showed integration of an additional lot and a building envelope on that new lot. No building envelope was particularly depicted on lot two (2). It would have to be the Eubanks' lot that they own now that was already approved and there was no, then, desire to improve it any further. But, at any rate, given the requirement of the order that a building envelope be depicted and the only thing that is depicted is the footprint of the structure, he would say that the one equals the other. Commissioner Hatfield said he would agree with Mr. Ely's conclusion, but that Mr. Klein has introduced other information here saying that he has something from the old application that literally does not depict anything. He asked if he heard this correctly? Mr. Klein responded by saying that yes, that was right. He wanted to take a few minutes to run back to his office and get those maps and return to the meeting with them. Chairperson Clapper said she hated to do this but had to remind Mr. Klein that the board has an agenda before them that they must follow. Commissioner Ireland said even assuming the applicant didn't show building envelopes, what the board is being asked to do is basically interpret the events as creating an open ended ability to have what you have and then have something else later at your sole discretion. And, he said that he doesn't think that they would do that as a board. He said he doesn't think a land use applicant in a platted subdivision would be able to say well, I want to locate in a rock fall area because it's worth more money and it's already been platted so you can't stop me. He said that the whole point of this argument seems to be that somehow we relied on something Cindy (Houben) said. But,they didn't, he stated. They didn't go out and build, they didn't go out and develop, they didn't take actions to their detriment. They just relied on it to create an appeal process. They had the opportunity to file an application and raise that issue again if they want. But, Commissioner Ireland said he doesn't agree that the Director's opinion about law creates an appeal process. Directors can be wrong. BOARD OF COUNTY COMMISSIONERS 12 SPECIAL MEETING JULY 16,2002 / Commissioner Roy commented that the board opened this with assertion as to the openness of this board to allow as much information to be introduced so that we could get to the truth and not be hung up on our processes. She said that she thinks what Commissioner Ireland and Mr. Ely have interpreted as far as the appeal is correct. She said that she shares though with Commissioner Hatfield concern that the Planning Director led the people that there was an appeal process. For that reason, she said, she has stayed with this long debate. She also said that she believes there is room for the applicant to come forward with an application. She said that she thinks an interpretation of a house as being a building envelope actually was in direct contradiction with our own Code. She said that it's very specific that the building envelope is the disturbance area. And, that the driveway and the shed are always designated as separate places. That would not be in conformity with the Code, she said. Therefore, she said that she thinks there is room to question that that was, in fact, the stipulated development envelope under the court hearing. Bonnie Eubanks wanted to give the board a little more background. She said that a letter was sent to Mr. Ely's office in August 2001 from Bart Johnson. She said it was almost six months later that Mr. Ely sent an email to Mr. Johnson saying that there was a misunderstanding and that he would get everything set up for the appeal. And,that's when it went to Cindy's (Houben) department and then Ms. Houben issued her letter on February 12. On April of this year, she continued to say, she went to Community Development, met with(unknown), was pulling all the necessary things I needed to apply for a building permit. She said that Lance Clarke came out and told her that she couldn't do that as she did not have a building envelope and that she had already been denied a 1041. She said that there she was trying to get a building application and was told she couldn't do it because she didn't have a building envelope. She said that they haven't tried to get around anything except to have a safe house for their family. And, she wants to be treated like the other people in Pitkin County have been treated that are in BOCC approved subdivisions. She said that prior to purchasing the property she was told by Community Development staff person, Rick Magill that no, they only needed to meet setbacks. She said that they are not trying to have two houses, they are not trying to do anything other than provide for their family. Mitch Haas commented that the original application submitted did include a two or three page section explaining that we do not believe we are subject to 1041. It was then stated at the hearings. That issue was never really a decision made on that. Instead, he went on to say, we will just try to go after the 1041 process and hope that we get an envelope approved and that everybody is happy. That didn't work, but we always reserve the right in the application to then bring that issue back up and make it an issue. He said that twice the Eubanks applied for a 1041 exemption as an administrative determination. That is the procedure for 1041 exemption. Once, after the 1041 was denied, he submitted a letter requesting an administrative determination of a 1041 exemption. The letter got ignored. He never got a response in writing or otherwise. Later, he continued Bart Johnson submitted an application for the same thing requesting a 1041 exemption as an administrative determination. That's what lead to six months later finally getting an email from Cindy (Houben) giving them a determination that they were not exempt. That's what is being appealed. So,that is an application made twice, finally responded to and finally a decision made. The decision is being appealed. BOARD OF COUNTY COMMISSIONERS 13 SPECIAL MEETING JULY 16,2002 %4 Mr. Haas said that he wanted to address the notion that the building footprint shown on the plat was a building envelope. He said that he would submit that the same subdivision application had an existing house on one of the Vought lots. The Planning Department and the Board of County Commissioners not showing a building footprint for that lot approved the Vought plat. Not showing anything. That stands to prove to him that this building footprint was not a building envelope, he stated, because one showed a footprint and the other didn't. Commissioner Ireland said that the board needs to know from Mr. Klein whether or not he wants to respond to the July 09, 2002 letter. Mr. Klein said the first question is whether the board is going to allow this into the record? Commissioner Ireland said that it's pretty clear that the board is going to allow it into the record. But, the board will not deprive Mr. Klein the opportunity to prepare a response. Mr. Klein said that he doesn't think they want to continue this any more than they need to and he did get a chance to review this so he asked the board to give him a couple of minutes in order to respond. Chairperson Clapper said that they have already gone past the time allowed for this hearing and need to move forward. Attorney Mark Barnes took a few minutes to address the board based upon his July 09, 2002 letter, attached to this record. He said that he agrees with Commissioner Ireland about the fact that just a Planning Director reopening a whole process is a very valid point. He said what the board can't lose sight of is that this whole decision focuses on whether or not the Eubanks are subject to 1041 regulations. That issue had been presented to the board. This board flatly rejected those arguments. Mr. Barnes also agrees with County staff that the County Code does not support the request. The exemption to be obtained under 3-80-020 is discretionary. There was very good reason that the Planning Director chose not to extend that discretion. Lot 2, he continued, did not receive scrutiny under the initial board's approval of this subdivision. The very purpose of that lot split was to create lot 1. Due to the fact that lot 2 had existing development on it, the county didn't even consider development issues with respect to that. So, he said he thinks the Eubanks would like to have it both ways. Say we're exempt because we're somehow part of a subdivision, but then also say we don't have to comply, really, with having board scrutiny of development on our lot. Mr. Barnes said he appreciated the board giving him this opportunity to address them. He said that he does agree with County staff and the County Attorney and would just direct the board to the attachments in the July 9 letter that clarify what was going on in the court provision. Commissioner Hatfield asked Mr. Klein for some feedback on the last paragraph on page 5 of the July 9 letter that begins with"further, the county's 50% density lot split process, under which BOARD OF COUNTY COMMISSIONERS 14 SPECIAL MEETING JULY 16,2002 lot 1 was severed from the Eubanks' parcel, was only available if there was "one (1) legal single- family house on the property (or if the property otherwise qualified for a growth management exemption)". Mr. Klein responded to that paragraph by saying that it is correct that the lot split process requires an existing residence, a legally existing residence to qualify for the lot split process. He said he really doesn't understand where the attorney is going with that. Mr. Klein read the remainder of that paragraph that states, "therefore, the existence of the Eubanks' current dwelling was a pre-condition to the lot split". Mr. Klein said that is correct. He read the last sentence of that paragraph which stated, "there is nothing in that provision that allows the relocation or redevelopment of that residence free from the County Code's requirements". Mr. Klein said that he also thinks that is correct. He said that he thinks the attorney is trying to create some inference. He said that he doesn't think he can get to where he thinks that attorney is trying to go. Discussion ensued on this issue. Francis Krizmanich said that when he worked at the Planning Office he would tell people that he wasn't making them go through 1041 but he would tell them to get a soil test done for areas that were known to have bad soil as there was a chance they could encounter foundation problems. He said he told people about wildfire hazards and others. He said that if the board is going to apply it this way, first they should let the county know that they are making a change of policy and that they're going to start looking at individual lots. He said there are lots in his subdivision that are a threat to the life,health and safety of the other residents. Other people in the county need to know if the board is going to start applying this randomly or- - . Chairperson Clapper said that is the decision the board is trying to make. Mr. Krizmanich said that's great because he doesn't think that the board should let the people in his subdivision go if the board isn't going to let"these guys" go. Chairperson Clapper said that she doesn't think that the decision of Mr. Krizmanich's neighborhood has anything to do with what's going on here today before the board. Mr. Klein wanted to ask Mr. Krizmanich a few questions at this time. KLEIN: Francis, you were in the Planning Office at the time the Two Moon application came through, is that right? KRIZMANICH: Yeah, I started it. Or, it was started with me as a County Planner. KLEIN: Okay. So, you worked on it? KRIZMANICH: That's correct. BOARD OF COUNTY COMMISSIONERS 15 SPECIAL MEETING JULY 16,2002 /� KLEIN: Did the applicant of that subdivision express an intention or desire to seek development approvals for the lot that had an existing residence but did not have a building envelope? KRIZMANICH: Well, it was a lot split. And I brought up that issue because, of course, we knew it was a problem because we had many lot splits in the county and that's the way the county used to do it. They just never made the owner of the existing property - - if he had a house they didn't require him to build a building envelope. We realized it created a future problem because then you have a situation of a subdivision that might have hazards that we didn't exclude from his development area. So, in the Two Moon Subdivision we discussed with Mr. Rayburn that issue for the first time. I brought it up. He didn't bring it up. I said, look you don't have a building envelope around here and if you want to sell it off and develop it you've got to have one. I'm not really ready to do all that stuff yet. We said well, then to resolve this problem we have with pre-existing subdivisions in the county let's do this. Let's put a note in the approval that he agrees to go through 1041 and create a building envelope in the future. And, that's - - because we knew these subdivisions were a problem but we felt, at that time,that we had issue permits to develop, whether they had building envelopes or not,just like any other subdivision. Chairperson Clapper said so you thought at that time that's what you had to do? Mr. Krizmanich said that is what we did not just what we thought, but that's exactly what we did. Commissioner Farris said that she doesn't think we're talking about a lot split here. We're talking about a court-stipulated decision. Having heard what we've heard over the past few months she is ready to make a motion. Commissioner Farris moved to approve the resolution to deny the appeal. Chairperson Clapper seconded the motion for further discussion. Mr. Klein wanted to finish his response to Mr. Barnes' remarks. Commissioner Farris apologized as she thought Mr. Klein was done with his response. Mr. Klein has a copy of the court order on summary judgment disposing of the Eubanks' claims. He said that he doesn't have to submit it for the record because he thinks the court will take judicial notice of it but it is Case No. OOCV342 called Order On Plaintiffs Motion For Summary Judgment. And he said he is responding to Mr. Barnes' assertion that the court dealt with the issues that are before the board today. On page four of the order Mr. Klein reads what the court said. It said, "the precise issue before the court is whether section 3-80 can be applied to the plaintiff s land which was zoned prior to the effective date of HB 1041, May 17, 1974". All this thing talks about, continued Mr. Klein, is the applicability of the State Statute statutory exemption relative to the County Land Use Code. And, he thinks Mr. Barnes' other arguments were pretty much those that Mr. Ely made. He said he had no further comments. BOARD OF COUNTY COMMISSIONERS 16 SPECIAL MEETING JULY 16,2002 / Chairperson Clapper asked Mr. Ely that if this appeal were denied, since there's technically no land use application sitting before us, the Eubanks would not have to wait six months to come in with a land use application? Mr. Ely said, that's correct. Commissioner Hatfield asked what the result would be if the appeal were granted? Mr. Ely said that the result would be that the board has determined that an exemption should be afforded to this particular property as it's situated, given the language of our Land Use Code. And, therefore, 1041 regulations would not apply to lot two (2). In the absence of that, the Eubanks or their successors would have to apply to whatever others regulations would be out there applicable to the property, excluding 1041, prior to their being able to develop it. Whether that is limited only to an adequate building permit or an application and whether that also implicates an application for scenic review I can't tell you. Chairperson Clapper called the question to deny the appeal. Motion passed four to one with Commissioner Roy voting nay. Commissioner Hatfield said this was very hard for him because of Cindy's (Houben) statements. He said that he thinks his understanding of the application of the Code is clear enough to allow me the decision to deny the appellants' request. On the other hand,there are some unclear things that he is uncomfortable with. Most of all about Cindy (Houben) saying the appeal was applicable and some comments by Mitch(Haas). For him, he said, he could have gone either way on this and he said that he feels the Code is clear enough that he could nudge himself to get here. Chairperson Clapper wanted to clarify her previous remarks. Now the Eubanks can come forward with an application based on the decision they want to make on this property. Is that correct? Mr. Ely responded by saying that there is a provision in the Code that prevents somebody from bringing an application in until the passage of six months time following a denial of an application. That does not relate to events such as this. So, yes, if they wanted to file an application tomorrow it would not be barred. Mr. Klein asked what was the basis for the denial or is the board basically adopting the denial resolution submitted by Mr. Ely? Chairperson Clapper said that the board just adopted the denial resolution. Commissioner Ireland said that he thinks Mr. Krizmanich is right that the board has to tell people that they are not going to - -just because you're in a board approved subdivision you're not exempt from 1041. BOARD OF COUNTY COMMISSIONERS 17 SPECIAL MEETING JULY 16,2002 / Commissioner Farris agreed. Chairperson Clapper said that was a decision made by Mr. Krizmanich in the Community Development Department at that time and she thinks that things with new boards, as we know, are sought differently. ADJOURNMENT: Commissioner Ireland moved to adjourn the special meeting at 1:50 PM. Commissioner Hatfield seconded the motion. Motion passed unanimously. BOARD OF COUNTY COMMISSIONERS 18 SPECIAL MEETING JULY 16,2002 1 C Respectfully submitted, yn e R. Dean Cler,ky to the Board Of�County _Commissioners Patti Kay-Clapper Chairperson of the Board of County Commissioners ww/g/minute/2002/07162002 BOARD OF COUNTY COMMISSIONERS 19 SPECIAL MEETING JULY 16,2002 3-80-020 Exempt Development Activities The development activities listed in this section may be exempted by the Planning Director from review under this section of the Code pursuant to the procedures in Section 4-30 or 4-40. A. Remodeling, expansion or reconstruction of single family and duplex structures provided there is no construction or expansion of a structure that would create additional 1041 hazard impacts. B. Construction of less than five thousand dollars ($5,000.00) in value, if the Planning Director determines that any 1041 hazard impacts are avoided or adequately mitigated. C. The specific development has received approval by the Board of County Commissioners, Planning and Zoning Commission or the Planning Director pursuant to these regulations. (Prior code § 3-802) EXHIBIT 9'� Section 3-300 APPEAL OF DEVELOPMENT ORDER Subsections: 3-300-010 General 3-300-020 Standards 3-300-010 General Any development permit applicant or other affected party, including the Community Development Director, may appeal a decision, conditional approval, or denial of a development application. (Ord. 98-53 (part)) 3-300-020 Standards A. An appeal of an administrative decision made pursuant to Section 4-30 (Building Permit Review), or Section 4-40 (Administrative Review) shall be forwarded to the Board of Adjustment, Planning Commission or Board of County Commissioners at the discretion of the Planning Director. Refer to Section 4-160 for procedures and to Section 5-210 for submission contents. B. Final decisions made by the Planning Commission may be appealed directly to the Board of County Commissioners. Refer to Section 4-160 for procedures and Section 5-50 for.submission contents. C. Final decisions made by the Board of Adjustment may be appealed to the Board of County Commissioners. Refer to Section 4-160 for procedures and Section 5-220 for submission contents. D. Final decisions made by the Hearing Officer may be appealed to the Board of County Commissioners. Refer to Section 4-160 for procedures and Section 5-50 for submission requirements. E. Final decisions made by the Redstone Historic Preservation Commission may be appealed to the Board of County Commissioners. Refer to Section 4-160 for procedures and Section 5-50 for submission requirements. F. Any applicant for a development permit or other affected parry may appeal a decision; however, the appeal must be filed no later than fifteen (15) business days of the decision. (Ord. 99-6 (part)) 333 (Pi&in Co.Land Use Code 11/01) Section 4-30 BUILDING PERMIT REVIEW (PC 4-3) Subsections: 4-30-010 General 4-30-020 Category 1 Applications 4-30-030 Category 2 Applications 4-30-010 General Building permit applications are reviewed for compliance with the Code Standards according to the procedures in this section. (Prior code §4-301) 4-30-020 Category 1 Applications Building permit applications may be approved, approved with conditions, or denied by the Planning Director. Refer to Section 5-230 for submission contents. The following types of building activities are eligible for Category 1 approvals: A. Any building construction requiring a building permit with a value less than five thousand dollars ($5,000); B. Any building construction on a platted lot located in a subdivision approved by the Board of County Commissioners and recorded with the Pitkin County Clerk and Recorder; and C. Proposed development activity which has previously received approval by the County and has an established vested right pursuant to Land Use Code procedures. (Prior code §4-302) �13 Section 4-40 ADMINISTRATIVE REVIEW PROCEDURES (PC 4-4) Subsections: 4-40-010 General 4-40-020 Administrative Review Procedure 4-40-030 Special Platting and Mapping Procedures 4-40-040 FIGURE 4-2 4-40-010 General The development applications listed in this section are subject to the administrative review procedures of the Code. The development applications listed in this section must comply with the identified policies in Article 2 and the standards in Article 3 of the Code. Figure 4-2 is a guide to the procedures, submission contents and review standards for administrative reviews. A. Minor review of a development which avoids areas of local or State interest/1041 environmental hazards (refer to Section 5-70 for submission contents and Section 3-80 for review standards); B. Subdivision exemptions identified as follows: 1. Survey error(refer to Section 5-60 for submission contents and Subsection 3-190-020 for review standards); 2. Lot line adjustments (refer to Section 5-60 for submission contents and Subsection 3-190-030 for review standards); and 3. Minor plat amendments (refer to Section 5-60 for submission contents and Subsection 3-190-080 for review standards). C. Exemption from commercial growth management quota system for developments with a negligible growth impact (refer to Section 5-50 for submission contents and Subsection 3-150-150 for review standards); D. Growth management quota system exemption for a change in use (refer to Section 5-50 for submission contents and Subsection 3-150-150 for review standards); E. One satellite reception device not exempt under Subsection 3-200- 050(A) (refer to Section 5-50 for submission contents and Subsection 3-200-050 for review standards); F. Highway vendors (refer to Section 5-50 for submission contents and Subsection 3-200-040 for review standards); G. Demolition extensions (refer to Section 5-50 for submission contents and Subsection 3-200-060 for review standards); H. Minor amendment to a development permit (refer to Section 5-50 for submission contents and Subsection 3-200-080 for review standards); 1. Signs (refer to Section 5-240 for submission contents and Subsection 3- 110-130 for review standards); J. Caretaker dwelling unit(Refer to Subsection 3-150-130 for review standards and Section 5-50 for submission contents); and K. Review of development within the scenic overlay (refer to Subsection 3- 60-040 for review standards and Section 5-90 for submission contents). L. Temporary commercial uses/special events (refer to Subsection 3-200- 030 for review standards and Section 5-50 for submission contents). (Ord. 99-6 (part)) q Section 4-160 APPEAL OF DEVELOPMENT ORDER (PC 4-16) Subsections: 4-160-010 General 4-160-020 Time Frame for Appeal 4-160-030 Applicability 4-160-040 FIGURE 4-7 4-160-010 General Any applicant for a development permit or other affected party may appeal an approval, conditional approval or denial of a development application no later than fifteen (15) working days of the decision. (Prior code§ 4-1601) 4-160-020 Time Frame for Appeal Within fifteen (15) days of the receipt of a written request for a hearing pursuant to this section, an appeal hearing before the appropriate review body will be scheduled by the Planning Director. (Prior code §4-1602) 4-160-030 Applicability Appeals to the standards of this Code shall not be considered within this section. Only those decisions which are discretionary or where the applicant alleges that an error has occurred shall be considered. (Prior code § 4-1603) f�/ EXHIBIT A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO DENIAL OF EUBANKS APPEAL RESOLUTION# -2002 Recitals 1. Bill and Bonnie Eubanks have brought this appeal regarding the disposition of a development permit application for Lot 2 of the Hefner Subdivision, located on Shadow Mountain in unincorporated Pitkin County. 2. The Hefner Subdivision is a Board-approved subdivision as a result of a Court ordered stipulated settlement of litigation involving Pitkin County. See Exhibit 3. 3. At the time of the Court ordered settlement, Lot 2 was improved with a residential structure of 5,738 square feet which remains on the property today. 4. The current owners of Lot 2, the Eubanks, sought to improve this property with a second residence located higher up the face of Shadow Mountain. For this contemplated improvement, the Eubanks were required to file a 1041 Hazard Review and Scenic Review General Submission Application for a development permit. This application, dated February 14, 2000, was heard by the County hearing officer and denied due to the presence of geologic hazards as defined in the Pitkin County Land Use Code Section 3-80-050. 5. The Eubanks filed a request for a takings determination with the Board of County Commissioners which was denied by the BOCC on November 15, 2002 for the reasons stated in the Board's denial resolution. 6. The Eubanks filed a lawsuit contesting the validity of the County's 1041 Hazard Review section of the Land Use Code as applied to their property. They have been denied relief in this litigation by the Pitkin County District Court. 7. The Eubanks have now filed this appeal pursuant to Section 4-160 of the Land Use Code, contesting the application of the County's 1041 hazard review regulations to their property. 8. No applications for development approvals or permits or applications for building permits have been filed by the Eubanks since their application of February 14, 2000. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Pitkin County, Colorado, that the Eubanks appeal is denied for the following: RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS -2002 PAGE 2 1. The Eubanks have not timely filed their request for an appeal following the denial of their development permit application under either Section 4-160 or Section 3-300 of the Pitkin County Land Use Code. 2. The terms of the 1983 Stipulation and Order concerning Lot 2 of the Hefner Subdivision required that building envelopes for both lots created in this subdivision be depicted on plats prepared for the subdivision. No separately identified building envelope is shown on Lot 2. The building footprint depicted for Lot 2 must therefore be coterminous with the building envelope for that lot. Therefore, the Eubanks request is for the establishment of a new building envelope on Lot 2. 3. The creation of the proposed new building envelope requested by the Eubanks is in violation of Section 3-80 of the Land Use Code as previously determined by the Pitkin County hearing officer. No exemption exists in the Land Use Code that would allow the Eubanks request to proceed without compliance with the requirements of Section 3-80. APPROVED AND ADOPTED ON THE DAY OF 2002. PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE DAY OF 2002. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jeanette Jones Patti Kay-Clapper, Chair Deputy Clerk Date: APPROVED AS TO FORM: John M. Ely Cindy Houben County Attorney Director of Community Development 2 Jul-15-02 11:41am From-BROWNSTEIN HYATT UARBER,,,,,,,,,,,,, T-674 P.02 F-828 Brownstein I Hyatt I Farber 410 5eventeentn Street Twenty-Secono Floor: Denver, Colorado 80202-4437 oni-iaw.com July 15, 2002 Wayne F.Forman Attorney at law T 303.223,1120 F 303 223 1111 wforman®Dnf-law.com Marc J.Matnews Anomey at Law T 303.223.1179 F 303 223 1111 mrnamewsGonf-law.com VIA FEDERAL EXPRESS PitKin County Board of County Commissioners 530 E. Main Street, 3m Floor Aspen, CO 81611 Re: Arapahoe Ridge, LLC: July 9, 2002 letter regarding Eubanks Application Dear Commissioners: With respect to our July 9, 2002 letter to you regarding the Eubankses' pending request, we noted an error in the sequencing of the exhibits accompanying the letter. For clarification, we are resubmitting the letter with the exhibits correctly identified. We sincerely apologize for any confusion this may have caused. Very truly yours, Wayne F. F6rmarf� 'L Mark J. Mathews WFF.rpp Enclosures cc: Tamara Pregl John Ely, Esq. Alex Furlotti Herb Klein, Esq. 7944%1%717426.1 ^// [ 8ro,.natain a Farber, P.C. Denver,Cororado T303.223.1100 F303.223.1111 wasn,ngion,D.C. T 202.296.7353 F 202.295.7009 AspenrVad. Colorado T 970.945.5302 F 970 354 2360 Jul-15-02 11:41am From-BROWNSTEIN HYATT VARBER. ... T-674 P.03 F-828 Brownstein I Hyatt I Farber 410 Seventeen Sirert Twenty-Sccond F100' Denver,Cour,ao 80202-c43S ant-law corn July 9, 2002 Wayne F.Forman Anorney at Law T 303 223 1120 F 303.223,1111 wforman@onf-law corn Mark J.Mathews Attorney at Law T 303.223 1179 F 303 223 1111 mmatnews(c3onblaw com VIA FEDERAL EXPRESS Pitkln County Board of County Commissioners 530 E. Main Street, 3f° Floor Aspen, CO 81611 Re: Arapahoe Ridge, LLC: Objection to Eubankses'Application for Redevelopment of Lot 2, Hefner Subdivision Dear Commissioners: This law firm represents Arapahoe Ridge, LLC which owns Lot 1 In the Hefner Subdivision. Lot 1 adjoins Lot 2 which, as we understand, is the subject of a request by Billy Ray and Bonnie Eubanks for permission to build a second home on the site without the need to comply with the County's 1041 Regulations Arapahoe Ridge received no formal notice of these proceedings, although it is the adjacent landowner and will be directly and adversely affected by the Eubankses' proposal Indeed, we were quite surprised to learn of this proceeding. Two years ago, Arapahoe Ridge opposed the Eubankses' previous request to build a new house and to convert their existing residence into a reindeer barn. See November 7, 2000 letterfrom Wayne Forman and Mark Mathews to BOCC. The Eubankses' current request is for identical relief. Significantly, the County Staff has concluded that the Eubankses' lot is not exempt from the County's 1041 requirements. The Board reached the same conclusion In the 2000 Eubanks proceedings. Arapahoe Ridge agrees with the County Staffs and Board's previous decisions and opposes the Eubankses' plan to redevelop the site in a manner inconsistent with the original subdivision plat for the Hefner Subdivision, Arapahoe Ridge urges the Commissioners to concur with County Staffs recommendation to deny the Eubankses' request Brownstein Hyatt & Farber, P.C. Denva,.Cowaao T 303.223.11U0 F 303 223 1111 wasnmgion, DC T202 296 73d3 F 202.296.7009 A,pon/vue. Co,orado T9709455302 F970.384.2360 Jul-15-02 11:41am From-BROWNSTEIN HYATT UARBER,,,,. T-674 P.04 F-828 Pitkin County Board of County Commissioners July 9, 2002 Page 2 Section I: Brief Overview For the following reasons, the Board should assent to the County Staffs recommendations The Board is precluded from reconsidering the Eubankses' request because the Commissioners and the District Court already have made final determinations on this matter. Administrative res judicata thus operates to preclude the board from reconsidering the matter. Section 3-80-020.0 of the County's 1041 requirements affords the Planning Director discretionary power to exempt some development activities from 1041 review, and the Planning Director appropriately chose not to exercise his discretion to create an exemption in the Eubankses' case. • The Eubankses' request is inconsistent with the Hefner subdivision plat because this subdivision plat does not sanction the building of a new residence on the site. • The examples cited by the Eubankses in their request are distinguishable unlike the Hefner subdivision, the subdivisions in most of the examples cited by the Eubankses were approved prior to the year the 1041 statute was passed. Moreover, most of the Eubankses' examples involve land that (unlike the Eubanks' land) was not previously developed. Section II: Discussion 1. The Commissioners and the District Court nave previously decided this matter. The Eubankses' current request is identical to the arguments that they presented to this Board during the hearings held on July 12 and September 13. 2000, in connection with their appeal of the Hearing Officer's decision denying their 1041 hazard review. In a February 2000 application submitted by Haas Land Planning, LLC, the Eubankses argued that they were exempt from the County's 1041 requirements because Lot 2 is part of a platted subdivision. Pages 3 through 5 of that submittal are attached as Exhibit 1. I Specifically, the Eubankses, while submitting to the 1041 process, argued two years ago that: 1) the County has exempted all lots within any subdivision approved by the Board from 1041 review, including the Starwood and Red Mountain subdivisions; and 2) Lot 2 is part of the Hefner Subdivision Plat and therefore should be treated by the County as being exempt from 1041 review. Indeed, the Eubankses' planning consultant, Mitch Haas, and their then-attorney, Leonard Oates, tried to convince the Board at the July 12, 2000 and September 13, 2000 hearings that Lot 2 is exempt from 1041 regulations, as reflected in page 6, line 18 through page 14, line 18 of the transcript of the July 12, 2000 hearing, attached as 7y"M7134572 y '� Jul-IS-02 11:41am From-BROWNSTEIN HYATT &FARBER............. T-674 P.05/51 F-028 Pitkin County Board of County Commissioners July 9, 2002 Page 3 Exhibit 2, and page 16, line 7 through page 17, line 2 of the transcript of the September 13, 2000 nearing, attached as Exhibit 3 (Mr. Oates stating the Eubankses' intent to obtain final decision from County on exemption issue). By Resolution No. 230-2002, adopted on November 15, 2000, the Board flatly rejected the Eubankses' arguments that Lot 2 was exempt from 1041 review, finding that"[tjhe property was subject to 1041 Environmental Hazard Review regulations at the time the Eubankses acquired their interest in the property." Resol. 230-2002, 1.D.iv, attached as Exhibit 4. The Eubankses then sued the County in Case No. 2000CV342, the appeal of which f is currently pending. In their Complaint, the Eubankses challenged the Board's application of 1041 regulations to Lot 2 under the County's Land Use Code and policies: 32. The County has consistently, and at all times, interpreted and explained the above-quoted language of subparagraph C of Section 3-80-020 of the 1041 Regulations to mean that all lots within any subdivision approved by the Board pursuant to a platted and recorded subdivision are exempt from the 1041 Regulations. This has been the case even with respect to existing lots that are Known to be exposed to hazards of the type addressed by the 1041 Regulations Examples include the Starwood subdivision, the Brush Creek Village subdivision, the Gateway to Snowmass subdivision and various subdivisions within the Red Mountain area of the County. Complaint, Case No. OOCV342, Division 1, Pitkin County District Court, page 5, paragraph 32, attached as Exhibit 5. The Eubankses' Complaint, at page 7, asked the Court to find that their lot was exempt from 1041 review. By joint motion of the County and the Eubankses dated February 28. 2002, and the resulting March 21, 2002 Court order, attached at Exhibit 6, the Court entered final judgment against the Eubankses' claims that state law exempted their lot from 1041 scrutiny, and dismissed the balance of the case, including their claim that the County improperly subjected their Lot to 1041 scrutiny under the County Code. Thus, the issue of whether Lot 2, Hefner Subdivision is exempt from the Counry's 1041 review has been argued, briefed, decided by the Board, and appealed to and resolved by the Court. The Eubankses cannot avoid the Board's and Court's decision simply by asking the County Development Director for a new decision and then appealing the reaffirmation of the staffs position first articulated two years ago. The Commission should not, and under Colorado law cannot, reconsider the issue. The Eubankses are not relying on any events or information subsequent to the 2000 7944\1\7 13457.2 ^h\ Jul-15-02 11:42am From-BROWNSTEIN HYATT 6FARBER,,,,,, ,,,,,, T-674 P.06/51 F-828 Pitkin County Board of County Commissioners July 9, 2002 Page 4 proceedings. Everything presented by Mr. Klein at the May 22, 2002 hearing was, or could have been, presented by the Eubankses' consultants in the 2000 proceedings. it appears that the Eubankses are simply trying to Improve the state of their record evidence for yet another court challenge to the Board. That is not a legitimate reason to waste the Board's time with the same arguments considered j and resolved two years ago. Colorado law precludes the Board from reconsidering this matter on two bases. First, the doctrine of administrative res judicata bars local governments from redeciding adjudicatory matters that have already been resolved. See Steamboat Springs Rental & Leasing Inc v City and County of Denver, 22 P.3d 543 (Colo. App. 2000) (request for tax refund barred by prior challenge to tax assessment that was dismissed pursuant to court-approved stipulation). Because the identical issues pending before the Board have already been decided, the Board cannot and should not rehear this matter. The Board's initial decision was sound and may not k be revisited. Arapahoe Ridge requests that the record of the Eubankses' prior County proceedings regarding their requests for 1041 exemption and riazard approval, and of the subsequent judicial proceedings, be made part of the record of this proceeding. Moreover, upon an appeal from a final decision by a governmental entity, the municipality loses jurisdiction to redecide the matter; instead,jurisdiction is lodged with the courts. See Colorado State Board of Medical Examiners v. Lopez- Samavoa. M.D., 887 P.2d S. 14 (Colo. 1994) (agency loses jurisdiction upon appeal from final decision). The Colorado Court of Appeals, not the Board, now has jurisdiction to resolve the application of the County's 1041 regulations to Lot 2. 2. The Pltkln County Code does not support the EubanKses' request During the May 22, 2002 proceedings, the Eubankses relied on sections 3-80-020 C and 4-30-020 of the Pitkin County Code to support their request to be exempt from the County's 1041 requirements. Arapahoe Ridge concurs with the County Staffs determination that neither of these statutes support the Eubankses' request. Section 3-80-020.0 states as follows: The development activities listed in this section may be exempted by the Planning Director from review under this section of the code pursuant to the procedures in section 4-30 or 4-40. C. The specific development has received approval by the Board of County Commissioners, Planning and 7944\I\713457 2 3 � Jul-15-02 11:42am From-BROWNSTEIN HYATT UARBER..... ,,,,,,, T-674 P.07/51 F-828 Pitkin County Board of County Commissioners July 9. 2002 Page 5 Zoning Commission or the Planning Director pursuant to These regulations (prior code § 3-802). [emphasis added.) As an initial matter,the exemption to be obtained under 3-80-020 is entirely discretionary. In the present case, the Planning Director chose not to extend the exemption because the Eubankses' lot, even if technically part of the Hefner Subdivision Plat, did not receive any scrutiny In the Board's approval of that Plat. This was because the sole focus of the Plat, and the court case from which it resulted, was the creation of Lot 1 Due to the fact that Lot 2 had existing development on it, the County did not consider in any way the prospects of the redevelopment of Lot 2. These are sound reasons for the exercise of the Planning Directors discretion not to exempt Lot 2 from 1041 review. Moreover, as the Board previously determined in Resolution No. 230-2000, the Eubankses' proposed redevelopment does not meet the requirements of subsection C because the "specific development" proposed by the Eubankses i.e., the establishment of a new residence on Lot 2) has not received prior County approval. The County approved Lot 2 in its current condition only. Accordingly, as the Board ruled two years ago, Section 3-80-020.0 provides no basis for the County to exempt the redevelopment of Lot 2 from 1041 review. The Eubankses also misread Section 4-30-020 as compelling the issuance of a building permit for any building constructed on a platted lot. That section provides that such construction is only "eligible' for Category 1 approvals. The preceding Section 4-30-010 makes clear trial"[b)uilding permit applications are reviewed for compliance with the Code Standards according to the procedures in this section." Therefore, Section 4-30-020 is procedural only, and does not impose substantive standards. Those standards are contained elsewhere in the Code, and include the 1041 regulations in Section 3-80. 3. The Hefner Subdivision Plat is inconsistent with the Eubankses' re nest. The Eubankses also argue (as they did on July 12, 2000) that because no building envelope was established for Lot 2, they are free to redevelop the site as they wish Nothing in the Hefner Subdivision Plat envisions that a new residence Is permitted or contemplated. Rather, a more reasonable interpretation is that the depiction of the existing house on Lot 2 reflected the allowable building area on that lot, similar to the building envelope depicted on Lot 1_ Again, the reason no building envelope was established is because Keith Hefner sought no approval to redevelop Lot 2 in the 1980s proceedings, and neither the Court nor the County granted Such approval. Certainly the Hefner Subdivision Plat itself provided no,reasonable expectation that the Eubankses could construct a second residence on the lot. Further, the County's 50% density lot split process, under which Lot 1 was severed from the Eubankses' parcel, was only available if there was "one (1) legal single- family house" on the property (or if the property otherwise qualified for a growth 7944\IM307 2 �� Jul-15-02 11:42am From-BROWNSTEIN HYATT UARBER.....11111.P1 T-674 P.O8/51 F-828 Pitkin County Board of County Commissioners EXHIBIT July 9, 2002 Page 6 management exemption), Prior Code §4-4.6(b)(5). Therefore, the existence of the Eubankses' current dwelling was a pre-condition to the lot split. There is nothing in that provision that allows the relocation or redevelopment of that residence free from the County Code's requirements. 4. The examples cited by the Eubankses are distinguishable. At the May 22. 2002 hearing, the Eubankses cited a number of examples establishing, they claim, a long-standing County policy that redevelopment of structures on platted lots are exempt from 1041 review. The examples — most of which were addressed in the 2000 proceedings —do not support such a claim. Virtually all of the examples mentioned by the Eubankses fail to support their claim for two reasons Most of the examples involved subdivisions approved prior to 1974 —the year the 1041 statute was passed —and, additionally, the majority of the examples involve lots which, unlike the Eubankses' lot, did not have pre-existing development. Mr. Krizmanich, the Eubankses' planning consultant, conceded that the Red Mountain Ranch, Pitkin Green, Mountain Valley and Brush Creek subdivisions all pre-dated 1041 authority and review. In contrast, the Hefner Subdivision was established in the early 1980s, well after the County's 1041 authority and resultant regulations were established. Mr Krizmanich also cited the Two Moon Subdivision which contained existing structures when it was approved. Mr. Krizmanich claims that the Two Moon plat required 1041 review for redevelopment of the developed lot, proving that if the County wants redevelopment to go through the 1041 process, it historically has placed the requirement on the plat. The key distinction between the Two Moon and Hefner Subdivisions is that the owner of Two Moon, Mr. Rayburn, explicitly raised the prospect of redevelopment with the County.' In contrast, Mr. Hefner never sought the right to redevelop Lot 2 of the Hefner Subdivision. It would be ironic and unfair if Mr. Rayburn, by raising the prospect of redevelopment, became subject to the County's 1041 review, but Mr. Hefner, by not raising the matter at all, obtained the right to redevelop Lot 2 free from 1041 scrutiny. In fact, the lesson of the Two Moon example is that after 1974, the County would not intentionally allow redevelopment of pre-existing structures free from 1041 review. Section 11, Conclusion Arapahoe Ridge appreciates the Board's consideration of these comments and the opportunity to address issues that will have a substantial impact on Arapahoe Ridge's use and enjoyment of Lot 1. Arapahoe Ridge agrees with the County Staffs opinion that the Eubankses' lot is not exempt ' This information was prowaeo by the former County planner who was the planning consultant for the Two Moon Swt4vision. 7944\l\7134572 3 �1/./ Jul-15-02 11:43am From-BROWNSTEIN HYATT VARBER,,,,,,,,, ,„ T-ST4 P.09/51 F-B28 Pitkin County Board of County Commissioners July 9, 2002 Page 7 from the County's 1041 requirements. There is no basis for the Board to reconsider its prior denial of the Eubankses' exemption request. Very truly yours, ayne F. Forman Mark J. Mathews WFF:rpp cc- Tamara Pregl John Ely, Esq. Alex Furlotti Herb Klein, Esq. 7944\I\713457 2 Jul-15-02 11:43am From-BROWNSTEIN HYATT PARBER,,,,,,,,,,,,, T-674 P.10/51 F-828 EXHIBIT 1 3� Jul-15-02 I1:43am From-BROWNSTEIN HYATT &FARBER..... 7-674 P.11/51 F-626 ;k AN APPLICATION FOR APPROVAL OF I 1041 ENVIRONMENTAL HAZARDS REVIEW FOR LOT 2 OF THE HEFNER SUBDIVISION l P Submitted by: i i Dr. and Mrs. Billy Ray and Bonnie Jean Eubanks , Suite 4250, 700 Louisiana Street Houston, TX 77002 I E '. i I Prepared by: HAAS LAND PLANNING, LLC Planning Consultants 201 North Mill Street, Suite 108 Aspen, CO 81611 (970) 925-7819 fax: (970) 925-7395 mhaas@gateway.net Jul-15-02 11:43am From-BROWNSTEIN HYATT UARBER......,,,,,„ T-674 P.12/51 F-828 B. Background The Eubanks' attorney, Mr. Lenny Oates, Esq., confirmed with the Pitkin County Attorney, John Ely, that as a court-ordered subdivision with a plat signed and approved by the Board of Countv Commissioners and recorded with the County Clerk and Recorder, the subject property and this application are fully exempt from the six-month emergency moratorium (see letter signed by John Ely, Exhibit #7). The Eubanks recently (July 15, 1999) made inquiry of the Pitkin County Community Development Department in connection with their desire to redevelop their property. As previously explained, they wish to construct a new home in the southwesterly corner of Lot 2, as a replacement for the existing home. The existing residence is proposed to be converted to a barn/storage facility not occupied for residential purposes. Per the attached Pre-Application Conference Summary (see Exhibit #l), the Eubanks were advised by the Community Development Department, who first conferred with the Assistant County Attorney, that they would have to go through 1041 Environmental Hazard Review. Ms. Eubanks had earlier discussed issues relating to the Hefner Subdivision with Assistant Countv Attornev, Marcella Larson, who told Ms. Eubanks that 1041 Review would be required. In a letter dated January 25, 1999, Ms. Larson stated that the reason for the 1041 Review requirement was that the approval of the Hefner Subdivision did not affect the "fathering parcel," which Ms. Larson stated was the parcel now owned by the Eubanks. We believe this to be incorrect because the fathering parcel would have been the entire property from which Lots 1 and 2 were created, and Lots 1 and 2 would be the resultant parcels from the subdivision of the property. Clearly the Plat of the Hefner Subdivision approves two lots. It is also clear that the Eubanks do not own both lots and, therefore, do not own the -fathering parcel." Wlule the Eubanks have consented to submitting this application and genuinely seeking 1041 Review approval, they still take exception to the County's position which holds that 1041 Review is required. Section 3-80-020 of the Pitkin Countv Land Use Code (the Code) provides: The development activates listed to this section may be exempted by the Planning Director from review under this section of the Code pursuant to the procedures in Section -1-30 or 4-40. Eubanks 1041 Environmental Hazards Review Application Page 3 3g Jul-15-02 11:43am From-BROWNSTEIN HYATT UARBER........... T-674 P.13/51 F-828 A. Remodeling, expansion or reconstruction of single family and duplex structures provided there is no construction ur expansion of a structure that would create additional !041 hazard impacts. . . C. The specific development has received approval by the Board of Counry Commissioners, Planning and Zoning Commission or the Planning Director pursuant to these regulations. Even assuming existence of 1041 issues affecting Lot 2, subparagraph A of 30-80-020 should apply given that those same 1041 hazard impacts fact,ts `o lwe ld believe, have been applicable to the existing house on the subject property• In the impact in the present location to be even more significant than at the location which the Eubanks desire to constrict their new home. There is nothing in subparagraph A which would suggest that the location of a new, replacement residential structure has to be where the former one was. The Community Development Department has consistently, and at all times, interpreted and explained the language of subparagraph C of 3-80-020 to mean that all lots within anv subdivision approved by the BOCC pursuant to a are exempt from the applicability of 1041 platted and recorded subdivisionstanding the known or suspected existence Review. This has been true, notwith of 1041 concerns affecting such approved subdivisions. Examples are numerous properties in the Starwood Subdivision and various subdivisions on Red Mountain. Although the circumstances surrounding the approval of the Hefner Subdivision are somewhat unusual, the fact remains it is a BOCC approved and platted subdivision of two lots. In purchasing Lot 2, the Eubanks indeed relied upon the recorded Plat of the Hefner Subdivision. There is nothing on the face of the Plat which would caution them as to the necessity for additional reviews in order to redevelop their sin family residence thereon to replace the property by relocating a new s contained on the Plat that would indicate anv existing one. The only provision limitation applicable to Lot 2 is a covenant against further subdivision. That was and remains acceptable to the Eubanks as they do not wish to subdivide their lot (While the Eubanks do not own the "fathering parcel," the aforementioned covenanting provision of the Subdivision Plat certainly affects their property) The Eubanks assumed, with no reason not to, that because the Hefner Subdivision Plat did/does not designate a building envelope dictating the area in which Lot 2 improvements must be confined to, that any area within Lot 2 would be acceptable for purposes of placement of a building, so long as such Eubanks 1041 Environmental Hazards Review Application Page 4 3� iu1-15-02 11:44am From-BROWNSTEIN HYATT UARBER.....1111.„1 T-674 P.14/51 F-626 Improvements complied with the setback requirements of the applicable zoning regulations. This, again, is consistent with many Countv approved plats such as Starwood and various subdivisions located on Red Mountain, which received approval of the BOCC without designated building envelopes. The existence of a designated building envelope, or lack thereof, for a lot within a County approved subdivision, has never been the determining factor for the requirement that a property go through 1041 Review. If the County had wanted to require 1041 Review of Lot 2 in the future, it should have insisted on a provision in the Stipulation and Order addressing it, and more importantly, required language on the face of the recorded Plat for the Hefner Subdivision Stating so. Otherwise, the County should have insisted that the lots of the Hefner Subdivision be subject to 1041 Review for purposes of designating building envelopes on the Subdivision Plat before it was approved and recorded. The Eubanks do not in any wav concede by submission of this application to the applicability of 1041 Review. Nevertheless, while this application will demonstrate consistency with the review criteria for 1041 Review approval and, accordingly, should be approved, suppose for argument sake, the Eubanks were to be denied approval by virtue of the existence of one or more hazards. Then suppose they were to take appeal on the basis of a takings and the BOCC were to deny them any relief based upon the fact that there is an existing dwelling unit on Lot 2. If the terms of this supposition were to become a reality, it would be as if to say that because there is an existing dwelling unit, the Eubanks must live with it and can never modifv or relocate that dwelling unit on the property. This would be patently unfair given that Lot 2 dces exist within an approved subdivision to which the provisions of Section 3-80-020(C) apply. To conclude otherwise would be as if to say, well we agree to the subdivision, but we did not really agree to anything because of our ability to impose development requirements after the fact. Representatives of the Eubanks have discussed the intention of the Stipulation and Order and have been told that it was entered into as a means of resolving a dispute over Mr. Hefner's rights in which the County's poor legal position made sertlement advisable to it. Further, thev have been told that there never was any discussion regarding the necessity for further reviews by the County. While not meant in any way as a threat it must be made clear that the Eubanks have a very large investment in Lot 2 and, should this 1041 Review application for some reason be denied, they intend to press this matter to a just conclusion. The Eubanks do understand, and have always understood, that Eubanks 1041 Environmental Hazards Review Application Page 5 lO �i Jul-15-02 11:44am From-BROWNSTEIN NYATT &fARBER„,„.,,,,,,, T-5T4 P.15/51 F-828 4 I EXHIBIT 2 �r Jul-15-82 11:45am From-BROWNSTEIN HYATT &FARBER..... ,,,,,,, T-874 P.16/51 F-828 1 STATE OF COLORADO 2 PITKIN COUNTY COMMISSIONERS REGULAR MEETING 3 July 12 , 2000 4 Re: EOSANKS 1041 HAZARD REVIEW 5 6 TRANSCRIPT OF TAPE RECORDED PROCEEDINGS 8 Meeting had before the Pickin County Commissioners ac 9 530 East Main Street, Aspen, Colorado 81611 for Eubanks 1041 10 Hazard Review and Conceptual Submission-cakings Determination. 11 12 CONXISSIONER ATTENDANCE 13 SHELLIE ROY-HARPER, Madam Chairman 14 COMMISSIONER LESLIE LAMONT 15 COMMISSIONER DOROTHEA FARRIS 16 COMMISSIONER MICK IRELAND 17 COUNTY OFFICIALS 18 TAMARA PREGL, Pickin County Planner 19 JOHN ELY, County Attorney 20 SPEAKING TO THE APPLICATION 21 MITCH HAAS, representing Dr. Billy Ray Eubanks and Bonnie 22 Jean Eubanks . 23 LEONARD OATS, Esq. , representing Billy and Bonnie 24 Eubanks. 25 26 • L-RAC TRANSCRIBERS 000) 799-0]90 DiCKinm< CO®.EuDUYce 7/12/00 , y� Jul-15-02 11:45am From-BROWNSTEIN HYATT PARSER......,, ,,,, T-674 P.17/51 F-820 1 MS . PREGL: Mm-hmm_ 2 MR. ELY: They never would have gotten - - what gc: :..e .. 3 to this stage was, they came in for a new building envelope, n 4 1041 review, encumbered by rock fall, denied by :he hearing S officer. 6 COMMISSIONER LAMONT: Okay. But to cake an existing 7 structure, existing home, Locally tear it down, rebuild it wirtzn B the same footprint , they could do that , exempt from 1041? 9 MR. ELY: Right . If they expanded the footprint, we 10 would say by expanding the footprint, you are subject to lo4i 11 review, because you are increasing the 1041 hazards . 12 COMMISSIONER LAMONT: Mm-hmm. Buz we could also consider 13 expansion of the existing building -- footprint as minimal impact , 14 when we talk about remediation, in the takings 15 MALE VOICE : That' s not being proposed. 16 COMMISSIONER LAMONT: I know chat' s not being proposed. 17 I just wanted to (inaudible) -- is MADAM CHAIRMAN: This might cover the ground -- the 19 ground (inaudible) -- Mitch, did you have a presentation? Okay. 20 MR. HAAS : Oh, let' s see. 21 MADAM CHAIRMAN: With Lenny backing you up, okay? 22 MR. HAAS: Yes . That' s right . The goal for the 23 property, for Bill and Bonnie Eubanks is to keep the existing 24 house, but not as a residence. 25 They would like to remove all the existing residential L-,IA[ :wwa6�Se YAa .]o]� 'ra•o no PICYSRC[y.COa4.YnGiK��/12/00 y3 Jul-15-02 11:45am From-BROWNSTEIN HYATT VARBER..... ,,,,,,, T-674 P.18/51 F-828 1 floor area, and things that make it a dwelling unit, and use it 2 more for storage and a barn facility, and keep a few animals in 3 there . And build a new house as a replacement . 4 So the existing shell of the house would remain, but 5 would not be used for residential purposes anymore . 6 The existing house does not have any mitigation in place, 7 and is subject to all the same hazards as the rest of the property; 6 avalanche and rockfall . You know, and it wasn' t (inaudible) - - 9 until the question came up. 10 But, you know, obviously they could tear it down and 11 replace the house without 1041 review. And they could do it, 12 again, without mitigating any of the hazards. 13 Our proposal would be a replacement house, with 14 mitigation, in -- consistent with the recommendations of both 15 Dr. Bruce Gordon and Art Mears, for avalanche hazard, rock fall 16 hazards, and all the other hazards that would also -- it would 17 also include the recommendations of Jonathan Leisge and Kevin 18 Wright, of wildlife mitigation and hazard -- habitat -- as well as 19 intervene about wildfire concerns. 20 And so I think the proposal is far better than what could 21 otherwise take place. I don' t know that that' s a standard, buc 22 that' s something to consider. 23 Another question about well, would we be here? Well, 24 that' s a question that we've been pondering since the beginning of 25 starting to think about this application, or about this goal of L-11AC 11LW54LSBBBB l7 p]1 ]99•p7Bp ➢actancty Co® BunWt��/17/pp Nq Jul-15-02 11:4Eam from-BROWNSTEIN HYATT VARBER.. T-674 P.19/51 F-6211 l Bill and Bonnie to build a new house . 2 We' ve been asked many questions from the beg:nn:n; 3 we' ve gotten some responses , but I still think that this board I 4 should calk about it, and I, you know, personally haven' t felt :_k= s the responses have been thorough enough that I tee'_ like the :ss"e 6 should be laid to the side . I 7 And that issue is, we are in a board-approved and platted 8 subdivision, yet we' ve been made to go through :041 review. As = 9 understand ic, ic' s noc required anywhere else in the county . 10 I sat through the Soifer zaking discussions, and 11 Co=nissioner (inaudible - coughing) made the point that if you 12 were over here in Redstone (inaudible) subdivision, you wouldn' t 13 be subject to it . And I sat there thinking, well, isn' t chat 14 our situation? {!� . is The fact, you know, we know hazards do exist, 1041 16 hazards do exist on Red Mountain. We know for that -- we know cney 17 exist in Scarwood, we know they exist in Redstone areas , yet chose 18 areas are not required to go through 1041 , i 19 We have hazards, also, we are not denying chat . But k 20 we' ve gone and sought out the advice of qualified experts . We' re 21 prepared to do a mitigation, but still don' t feel like we should 22 have been in this process in the first place . 23 Maybe the situation that created the subdivision is a 24 little unusual . It was a court-ordered subdivision. Buc Pitkin 2s County was part of that settlement . Pitkin County reviewed ic, L•MC ZRANB G�ZBBR9 UO71 ]yH•G]BO BaCeanCry,Caa BuWfY��]/li/00 Jul-15-02 11:45am From-BROWNSTEIN HYATT PARBER,,,,,. u n T-674 P.20/51 F-828 1 and as they' re saying, what the terms of the settlement were, d2.d 2 not require that 1041 be included in the settlement . 3 There were other court settlements that we reviewed, tha-_ 4 the county did take that position, and say 1041 is a (inaudible - 5 sneezing) requirement . 6 You know, the county did say no further subdivisions , and '€ 7 put that on the plat , and made that a requirement , and sure, that ' s i S fine, we don' t have an issue with chat . 9 But it' s just an example that certain conditions of the 10 settlement were required, and 1041 was not one of those, not in the 11 settlement on the recorded plat . And that plat was indeed signed 12 by the chair of the county commissioners at chat time . 13 COMMISSIONER LAMONT: We' ll sign anything. 14 MR. HAAS : Oh, yeah. I could go through all -- 15 MADAM CHAIRMAN: When was this? 16 MR. HAAS: -- the 1041 issues, but I -- 17 MALE VOICE: (Inaudible - overspeak) is MADAM CHAIRMAN: (Inaudible - overspeak) at the time . 19 MR, HAAS: I mean, I'd like to Cross that hurdle before I 20 go through all the 1041 discussion, ' cause I -- 21 (Opening a map. Rattling. ] 22 MALE VOICE: (Inaudible) 23 MR. HAAS : An envelope was put on lot 1, and you know, 24 the court order said the plat shall be prepared consistent with the 25 Hefner subdivision application that was filed before the court L_XXC TRWSCRISRRS (000) 729.032D pj"k nCcy Co® R�+C• •�/li °° 95-02 11:46am from-BROWNSTEIN NYATT iFARBER,,,. .„.„.„ T-64 P.21/51 F-828 1 order occurred. 2 And this plat is identical to that request . We had a 3 copy of the application. The only thing it doesn' t show is the 4 topography, but shows everything else that was required by the 5 court-ordered subdivision. , 6 So what is left to assume of this case? You know, 7 maybe -- maybe the county takes the position, you' re left to assume 8 that your development (inaudible) the existing footprint. I don' t 9 know. But that' s not the only way you can look at it . 10 And certainly someone looking at a plat and doing their 11 due diligence wouldn' t come up with that as a conclusion. But I 12 look at it and say, I'm left to conclude that the developable 13 areas, everything, was in the setbacks, because there is no 14 building envelope, which is the same case as other subdivisions 15 chat don' t have building envelopes designated. 16 So you know, I could go through the 1041 issues in 17 response to the review but I, you know, want to cross the bridge 18 of why are we in 1041 first . 19 COMMISSIONER IRELAND: (Inaudible) -- a good suggestion. 20 We have a response to she proposition that this is exempt of 1041 21 by virtue of (inaudible) subdivision? 22 MR- HAAS : No. 23 COMMISSIONER IRELAND: It is not? 24 MR. CHAIRMAN: Why? 25 MR. ELY: The court ordered settlement as a result of our L-NL[ SSW�SCRIHHRS t30]) '/9i.",o Bac.17CCy Camp 6y .Kn7/12/00 Jul-15-02 11:46am From-BROWNSTEIN HYATT UARBER...... T-674 P.22/51 F-828 1 original application to Subdivide the property t:^.at was i 2 the county, and what started the litigation. 3 The litigation continued through - - it contir.•.:ed awhile 4 forget the exact duration of it now, but it was quite awnile . 5 And it started when Sandy Stollen was county attorney, and 6 persisted until Don Smith was in the office. 7 The settlement that was arrived at was arrived at, at a 8 time when the regulations in the county were less stringent than 9 they are today. 10 The language of the settlement was clear what can be, and 11 what was required to be done, before development, and what can be 12 developed on the property. It is silent as to whether or not this 13 property is exempt from 1041, and was not considered at the time E 14 the settlement was reached and agreed to by all the parties . And F 15 as such, that (inaudible) was no expression within the settlement I 16 chat the property is exempt from 1041 review. 17 There' s a -- pursuant cc the settlement, there was 18 one building (inaudible) identified, and that was on a vacant 19 lot . I would assume that was because the current lot was already 20 developed, and there was no question about the use of that 21 property. 22 At the time of the settlement there was no prohibition on 23 development on the remainder of the property, on this particular 24 lot . Lot 2 , of the prohibition in the Land Use Code did not exist 25 concerning rock falls . It did exist at the time this property was I_R� �SgtIBBY6 UD]1 79••0]9D 9�CkSnCCYCeo.YuoaNc�7/1:/OD 11:46am From-BROWNSTEIN HYATT UARBER..... ... .... 7-6T4 P.23/51 F-328 1 purchased by the current owner. 2 The lack of speclfic provision in the settlement as -=�= • t from 1041 review, does not translate into 3 the property was exemp a 4 de facto assumption that it is exempt, because it' s not called o t , 5 that you must go through it . 6 Neither is it called out that you must go through 7 compliance with building code regulations, or wildfire regulations. 8 or any other type of regulations that are in place now. Without 9 1t, you specifically eliminate it, and take the position chat 1t is 10 encumbered by that aspect of the use . have a 11 AN COMMISSIONER IRELD: I'm sure Lenny might 12 different point of view. 13 MR. ELY: I'm sure he does . 14 COMMISSION IRELAND: Would you respond cc the 15 (inaudible) -- position. I'd like to hear it . 16 MR. GATES : Well, I mean, I don' t -- I mean, this has 17 been pretty tortured from our standpoint - We started out trying 18 to move a pro3ect forward, conceptually, and were told by the 19 assistant county attorney that we had to go through the 1041 20 process , We then -- I then, wrote a letter which outlined, 21 22 essentially our position, that we really didn' t think the 1041 was 23 applicable to approved subdivisions, and that -- subdivisions 24 approved by the Board of County commissioners . 25 Again, I think chat position was rejected, which led us �_Mc gpatt$OtIH10t+ Uo]1 ]9•-CL0 Yscm¢nccy II Jul-15-02 11:46am From-BROWNSTEIN HYATT VARBER,,,,,,, ,,,, ,, T-674 P.24/51 F-828 1 to going through the 1041 process, co get to the point where we are 2 now, understanding that the hearing officer really had no choice, 3 and the administrative officer, and the hearing officer, and the 4 appeals process . 5 But the simple fact of the matter is , is just simply a 6 form of logic. There' s no way that it was intended that when this 7 ten acre piece was carved into a 9 . 9, and the other one, which is a 8 one-acre parcel, that was intended to be frozen in time . 9 And you know, that' s -- that' s -- things have changed 10 since 1984 when this was done. Maybe at the time that it was done, 11 is was intended that -- you know, maybe nobody visualized that the 12 existing house would ever be torn down. 13 It' s kind of curious that -- I think the councy should 14 share some of the blame in this, in that the order which was 15 entered by the court, in connection with the subdivision, has some 16 very specific language in terms of the plat that you' re looking at, 17 and I've highlighted it for everybody. 18 I'm sorry, we only have three copies, ' cause we were cold 19 that only three commissioners would be here today. 20 what happened here was that , apparently, a building 21 envelope was supposed to have been shown for each one of the 22 lots . And it obviously wasn' t, for whatever reason, and we 23 don' t know historically on the lot that belongs to the Eubanks . 24 At the bottom -- you know, at the end of the day, whether 25 or not the 1041 applies, we've gone through the entire process . L-Mp SLYIDCAIDEM 1303, 799-0390 9lt"n"y Cn 5„o.+u47/11/00. R Lam/1 L V Jul-15-02 11:46am From-BROWNSTEIN HYATT PARBER„„. T-674 P.25/51 F-028 1 And we have expended an enormous amount of money in ConnectionW!.__n 2 the research necessary to mitigate. All we want to do is get 3 somebody to designate a building envelope, which probably should 4 have been done by the county in 1984, and we' re standing here doing 5 it in the year 2000 . 6 Now, that may not directly respond to your question- 1 7 think that I had written a letter earlier, and I don' t know wnether 8 you had seen it, Mick, or not, to John, on the application of the 9 1041 . I would be happy to give you a copy. John, obviously, 10 disagrees with that . 11 COMMISSIONER IRELAND: So your position is that the 1041 12 should not apply. Is it your position that the applicant therefore 13 has the right to build anywhere within the setbacks , as Mitch has 14 said? 15 MR. OATES : Yes . Although, I mean, obviously -- 16 MADAM CHAIRMAN: The attorneys are -- 17 MR. OATES : -- you know, we' re here . Yes . That would be 18 our position. 19 MR. HAAS : But for our position, I think we' re willing 20 to go with the proposed envelope, which we found to be the best 21 possible site on the property. 22 COMMISSIONER IRELAND: Let me ask about that . Just try 23 to help me with this, because I didn' t get here in time to read the 24 material before the meeting was held. ( Inaudible) down a little 25 safer, from a hazard point of view, than the existing building. f.-mAC SRARSCRIBRRS U m) 099-0080 VICKInCcy Coen 91J-4 K07/1I/00 Jul-15-02 11:47am From-BROWNSTEIN HYATT VARBER........ T-674 P.26/51 F-828 C E R T I F I C A T E STATE OF COLORADO ) ) ss COUNTY OF ARAPAHOE ) I, Laura M. Machen, an independent transcriber and notary public within and for the State of Colorado, certify - the foregoing transcript of the tape recorded proceedings, In Rai Pitkin County Commissioners, Eubanks 1041 Hazard Review and Conceptual Submission-takings determination, July 12, 2000, ono r.r lurcher sec forth on page one, is reduced to printed form by computer transcription, and dependent upon recording clarity, is crue and accurate, with special exceptions of precise idencificacion of any or all speakers and/or correct spelling of any given or spoken proper name or acronym. Dated this 27th day of October, 2000 . My commission expires May 23 , 2004 . A041—ORIGINAL [ ] CERTIFIED COPY OF ORIGINAL L-RAC 3RAMCRIDW 303 720-0330 71 Ju1-15-02 11:47am From-BROWNSTEIN HYATT VARBER..... T-874 P.27/51 F-828 i i I EXHIBIT 3 I i S3 Jul-15-82 11:47am From-BROWNSTEIN HYATT 6FARBER,,,,,,,,,,,,, T-674 P.28/51 F-828 1 STATE OF COLORADO 2 PITKIN COUNTY COMMISSIONERS REGULAR MEETING 3 September 13 , 2000 4 Re: EUSANKS 1041 HAZARD REVIEW 5 6 TRANSCRIPT OF TAPE RECORDED PROCEEDINGS 7 8 Meeting had before the Pitkin County Commissioners at 9 530 East Main Street, Aspen, Colorado .81611 for Eubanks 1041 10 Hazard Review and Conceptual Submission-takings Determination. 11 12 CONKISSIONER ATTENDANCE 13 SHELLIE ROY-HARPER, Madam Chairman 14 COMMISSIONER LESLIE LAMONT 15 COMMISSIONER DOROTHEA FARRIS 16 COMMISSIONER MICK IRELAND 17 COUNTY OFFICIALS is TAMARA PREGL, Pitkin County Planner 19 JOHN ELY, County Attorney 20 SPEAKING TO TUE APPLICATION 21 MITCH HAAS, representing Dr. Billy Ray Eubanks and Bonnie 22 Jean Eubanks . 23 LEONARD OATES, Esq. , representing Billy and Bonnie 24 Eubanks . 25 26 /`I Ju1-15-02 11:47am From-BROWNSTEIN HYATT &FARBER.... . T-674 P.29/51 F-626 I 16 [� I 1 people on the property. 2 COMMISSIONER IRELAND: The residence. 3 MR. HAAS: Yeah. That' s their choice to live with that, E 4 I suppose, if it' s approved. 5 MADAM CHAIRMAN: Any questions of the applicants? Did 6 you have any other portion of a presentation. 7 MR. OATES: Well, I would like to, if I could -- I had 8 written John Ely a letter very early on, before we ever filed the 9 1041 application, in connection with why we did not think that the 10 1041 hazard review provisions were applicable, because the property i 11 is within an approved subdivision, citing it' s code section. 12 Mitch paraphrased that, when he filed the 1041 13 application. But I would like to enter into the record, if we 14 could, that original letter, and I can give you each a copy of it . 15 Give one to Jeannette just for record purposes . 16 MR. HAAS : Well, we hope we don' t have to get back into 17 that whole discussion, though. 18 FEMALE vOicE: The settlement. We kind of really went 19 through that (inaudible) didn' t we? 20 MR. OATES : Well, we did and we didn' t . And we've just 21 been working since, roughly, Eubanks, prior to October 25th, when I 22 wrote this letter, for some time, we've just been trying to get to 23 this point today, in effect, to try and get our administrative 24 remedies exhausted, with the hope that at some point along the way, 25 we could get this thing figured out, and sorted cut, and hopefully Jul-15-02 11:47am From-BROWNSTEIN HYATT UARBER. ....,,,,,,,, T-674 P.30/51 F-828 17 1 reach settlement, so that we don' t have to go back and get some 2 interpretation on the court-ordered subdivision. 3 I think the legal mechanism is there for us to do it, 4 as John mentioned, if we could have a meeting of the minds 5 substantively, in connection with this . As Mitch says -- I 6 mean, it' s not over if you designate this building envelope . 7 At that point in time, the Eubanks have to take a 8 substantial risk, in terms of architecture, schematics, probably 9 models , and spend a great deal more money than they already have, 10 and they've spent a substantial amount at getting to chis point in 11 time, and still not knowing that you guys, or whoever reviews it, 12 is going to give the approval . 13 MALE VOICE: Lenny, I have a question. 14 MADAM CHAIRMAN: Please (inaudible) 15 MALE VOICE: On page 3 of your letter it says, if we deny 16 the 1041, and then we found that there was no takings, you say that 17 would be a (inaudible) to say that because there' s an existing 18 dwelling there, we Eubanks (inaudible) modify it, or relocate the 19 dwelling on their property. 20 But Mitch says they don' t need a 1041 to modify that 21 unit, and to develop or expand it on a non-hazardous portion of 22 the lot . 23 FEMALE VOICE: Historic site . 24 MALE VOICE: Well, this is -- which of you -- 25 MR. OATES : I think that the Community Development has -G Jul-15-02 11 :48am From-BROWNSTEIN HYATT PARBER.. T-674 P.31/51 F-828 C E R T I F I C A T E STATE OF COLORADO ) ) as COUNTY OF ARAPAHOE ) I, Laura M. Machen, an independent transcriber and notary public within and for the State of Colorado, certify the foregoing transcript of the tape recorded proceedings, In Re: discussion/action on Eubanks 1041 Hazard Review and Conceptual Submission-Takings Determination, September 13, 2000, and as further set forth on page one, is reduced to printed form by computer transcription, and dependent upon recording clarity, is true and accurate, with special exceptions of precise identification of any or all speakers and/or correct spelling of any given or spoken proper name or acronym. Dated this 3r6 day of November, 2000 . My commission expires May 23 , 2004 . I ] ORIGINAL ] CERTIFIED COPY OF ORIGINAL T-674 P.32/51 F-828 Ju1-15-02 11:48am From-BROWNSTEIN HYATT PARBER........ i EXHIBIT 4 i I �g Jul-15-02 11:48am From-BROWNSTEIN HYATT VARBER.. . T-M P.33/51 F-828 lull IIIII gill I1112114101q 111111 M11111 II1)1111 i a1 2 R 1.66 O 0.00 N 0.00 FITKIN WIORf CO RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF FrrM COUNTY, COLORADO,DETERMINATION OF NO TAKINGS FOR THE EUBANKS 1041 HAZARD REVIEW AND CONCEMVAL SUV41SSION Raoladoo Nuq?30-2000 RECITAL I 1, The Board of County Commissioners("BOCC")of Pekin County,Colorado makes site following findings: A. Dr,Billy Ray and Bonnie Jean Eubanks("Applicant")are the owners of Lei 2,Hefner Subdivision,according to the Plat Thereof recorded April 1S, 1985 in Plat Book 11 at Pager 11. ' 11. On May 16,2000.by Dow=14atlon No. 19-2000,the Phkm County Hearing Officer denied the Eubanks 1041 Hazard Review and Conceptual Submission due to rocXfoll harard which k encumbers the entire property as determined by two certified professional geologists. i C. The Applicant applied to the BOCC for a takings determination pursuant to sectimr 4150 of The j Code. The Applicant contended that the Eubanks Land Use application denial constitured a taking of private property without jua compensation. D. At regularly scheduled meetings on September )A andNavember 15,2000,the BOCC considered The evidence and testimony presented by the County Attorney's OMM the Cwnntuniiy Development Department and the Applicam on the issue of whether the land use application denial constituted a compensabletaking of private property,and determined the following: i The denial by the Hearing Officer does not deny all reasonable beneficial use or economic return forthe property. it The property is improved with an existing residential strucrure,a pool.and a shed, iii The property is subjecT to 1041 Environmental Hazard Review since the Stipulation and Order of the District Court,County of Pitkin County, State of Colorado,Civil Action Nos. 82CV3,82CV I52 and 22CV216(Book 449 at Pages 649-653)do not affect tlu fathering parcel and there was no building envelope created for Lot 2 by virtue of the settlement. In addition,the Pitkin County Land Use Code("Code")states that 1041 Environmental Hazard Review does apply to Lot 2 since the proposed building envelope does not qualify for an exemption from 1041 Hazard review as"It]the specific development has(never]received approval by the Board of County Commissiomrs...pursuant to[1041 regulations]." §3-80-020(C), iv The property was subject to 1041 EAvironmental Hazard Review regulations at the time the Rubanka acquired their inwrest in the property- I Jul-15-02 11:46am From-BROWNSTEIN HYATT &FARBER,,,,,,,,, T-674 P.34/51 F-626 Resolution No�3 0 _2000 i I 1'32'fill LF N1111111111111111111 fill 11EII'I vz Paget 2 of Z R 0,00 0 0.00 R 0.00 PIMN COW} co v The property is subject to Scenic Overlay Review pursuant to section 3-60-040 of tho Code and the County adopted Scenic Overly MAPS. However,the BOCC s fulding of no talings was not based on Seenk Oveday conams. NOW TfUMX61POR11,BE IT RESOLVED by the Board Of COMP Commissioners ofPitkin County,State of Colorado,based upon ft foregoing,the Board determines that there itas been no taking occasioned by 111e Hearing OfBccr's action ccAceming the Fubank's Property. TAKINGS DETERMINATION RENDERED ON THE IS=DAY OF NOVEMBER 2000. ADOPTED ON TIfE ISTR DAY O.F NOVEM BER 2000. A7MST: BOARD OF COUNTY J RS OF PITKIN COUNTY,CODO C LY�pec R.Dean Cleric to rite Beard Shelha y, Chair A Dan: APPROVED AS TO FORM: APPROVED AS TO CONTENT: oo A"-��_�//_' John Ci Houbcn, C my Avomey Community Development Director Caswp woo 273$1230500Z 60 Ju1-15-02 11;48am From-BROWNSTEIN HYATT VARBER,,,,,,,,,,,,, T-674 P.35/51 F-828 EXHIBIT 5 Ju1-15-02 11:42am From-BROWNSTEIN HYATT VARBER..... ,,,,,,, T-674 P.36/51 F-816 'IAN-16-2001 16:10 oritksn Combined Courts • 970 525 6349 F.01/M r FI rCONQ) 00,0,- ��0 T COO 7DISTRICrT,PITKJNCOUNTYCOLORADO61-Main St.,Suite:Epen,CO 81611 ' DR. BILLY RAY EUBANKS Defendant: BOARD OF COUNTY COMMISSIONERS OP PITKIN A COURT USE ONLY A COUNTY, COL.ORADO Case Number. QOC Division .,Zf Attorneys for Plaintiffs: I.Bart Johnson(Rog.No.26116) Otteo,Johnson,Robinson,Neff&Ragonetri,P.C. 132 North 1"Street,Suite C Aspen,Colorado 81611 Telephone: (970)544-4637 Facsimile: (970)544-4632 E-mail: ban@oj=.com COMPLAINT Plaintiff, by and 113MU211 his undersigned counsel, stares the following as his Complaint against the Defendant: G 99,A�TONS 1. This case involves a challenge by Plaintiff Dr. BMy Ray Eubanks ("Dr.Eubanks") to actions by Pitkin County, Colorado (the .-Counrn concerning a parcel of real property owned by Dr.Eubanks, Specifically, Dr.Eubanks is challe I&S the County,s decision to treat his plats for development of a single-family residence on his property as being subject to review under Section 3-80. Areas of Locsl and State Interest/1041 Environmental Hazard Arg_4s,of the Pitkin County Land Use Code(the-1041 RegNatiousl�. 2. The property owned by Dr.Eubanks is legally described as Lot 2,Hefner Subdivision, pursuant to the Final Plat thereof approved by the Board of County Commissioners of the County (Elie 'Board'? on April 10, 1985 and recorded April 15, 3985 in Plat Book 17, at Page 11. in the real property records of the County (the "property"). The Property is located to .u,wu„wao, ,v,sm x.o,y, Jul-15-02 11:49am From-BROWNSTEIN HYATT &FARBER........ 1.„, T-674 P.37/51 F-828 JRN 10-200r 16=r0 �itkin Combined Courts • 7rrr 7o W�zp r•.ekieb the southwest of the City of Aspen at the foot of Shadow Mountain in The unincorporated area of the County. The property contains approximately 939 aces. 3. Venue in this Court is proper pursuant w C.R•C.P. 98(a) and 98(b)because the Proprny is )ocatod ia, and the County's action was taken 'A, pitkin County, Colorado(the"County')- 4. This Court has jurisdiction over this Case pursuant to C.R.B. $ 24-b5.1-502 (2000), which provides that '%t]bo denial 'of a 11041 review] perruh by a loral government agency shall be subject to judicial review in the district court for the judicial district in which dre major development or activity is to occur:' 5- The majority of the Property is currently located within the AFR-I0 zone district pursuant to the pi*in County 1-and Use Code (the —Code),though a small portion of the nonhwestern portion of the Property is located within the R-15 zone district pntsuaut to the Code. Pursuant to the regulations within the Code regulating land use within these zone districts, development of a single-family residence on the Property is currently permitted on the Propam as a use by right. 6. The subdivision plat by whicb the property was IegaAy subdivided as a lot (the -Fla,") was approved by the Board as part of the settlement of Civil Action Nos. 82CV3, 82CV 152 and 82CV216 filed in this Court. A copy of the Plat is attached to this Complaint as F 'bit A copy of the Stipulation and Order by which the Court d a to the roval of the Plat is anachM to this Complaint as Exhibit B (the "Stipulation and Ordgel. 7. Prior to the recording of the Plat, the Property was not a subdivided lot and existed as pan of larger parcel containing approximately 10.42 acres described by metes and bounds. By operation of the Plat, this larger parcel was subdivided into two lots. The Property became Lot2, Hefner Subdivision, and the remaining 1-03-acre parcel became 1-ot 1, Hefner Subdivision("Lot 1"). 8. Lot 1 'contains a presatbed "Building F-nvelope" that is graphically depicted on the Plat The Plat does not prescribe a Building Envelope for the ptnperty. 9. A tbree-story single-family residence that was constructed prior to approval of the Plat currently exists an the Property. 10. The County promulgated its 1041 Regulations puusuant to Board Resolution No. 75-68 adopted on October 6, 1975. A copy of this Resolution is attached to this Complaint-& x 'bi 11, The County obtained its authority to promulgate the 1041 Regulations pursuant to a delegation of authority made by the Colorado General Assembly n Ale o se Bill 1041, Laws 1974, which is .codified at C.R-S. $1 24-65.1-101 er. M_ 041 $tatYtt"). 4VJWL1 MOM iJ,.. Y14pY . 2 b3 Jul-15-02 11:49am From-BROWNSTEIN HYATT UARBER,,,,,,,,,,,,, T-6T4 P.38/51 F-828 Jpv-16 2001 16 11 •PI-Ek+n Corroined Cowres . 972 " 6349 P•M/08 12. Section 24-65.1-10'J of the 1041 Statute cxempra certain types of development from the regulatory authority delegated to local governments by the 1041 Stamtc. In relevant pan this section provides that "Whis article shall not apply to any development in an area of state interest or any activity of state interest . . . [M the development or activity is to be on land . . . [wlWcb [as of May 17, 1974] has be=zoned by the appropriate local government for the use contemplated by such development." A copy of C.R.S. § 24-65.1-107 is attached to this Complaint as Exhibit 13. The County does not have the artbority to.apply its 1041 Regulations to development ibat is specifrcally'caemptcd from such review pursuant to Section 24-65.1-107 of the 1041 Statute. 14_ pursuant to Sheet 14 of the official County Zoning Map dated March 25, 1974 (attached hereto as Fahi it , and Board Resolution No. 74-16 dated March 25, 1974 (atraclled as Exhibit , the Property was included within the AF-1 zone district of the County as of May 17, 1974. 15. As indicated on the table included as pan of the Board resolution attached hereto as Exhibit F. pursuant to the County zoning regulations in effect as of May 17, 1974. single family dwellings were permitted within the AP-1 zone district as a'we allowed by right." 16. Thus, as of May 17, 1974, the Property was zoned for development of a single-family residence. 17. pursuant to the express terms of Section 24-65.1-107 of the 1041 Statute, development of a single-family residence on the Property is exempt from the County's 3041 Regulations. IS. In early 1999, Dr.Eubanks and his wife began exploring pians for replacing the existing single-family residence on the Property with a new residence. At this time, Dr.Eubanks' wife made an informal inquiry to the County Anorney s office as to whether review under the County's lo41 Regulations would be required for cpnsvltcdon of this new -residence. 19. In response to her request, Mrs. Eubanks received a lever from an Assistant County Anomey dated January 25, 1999, opining that "1041 environmental hazard review would be required if you desired to build a house on your site as the litigation did riot affect the fathering parcel (i.e., the parcel you now own.)" This reasoning diraxly contradicted the Stipulation and Order approving the establishment of the Property as Lot of the Hefner Subdivision: 20. On or about July 15, 1999. Dr.Eubanks met with a staff planner from the Piddn Comity Community Development Depatmmnt in a pre-application conference to discuss his plans to construtt a new single-family residence on the property. At this pre-application «,wal m,oiw wuw_..orr 3 Jul-15-02 11:49am From-BROWNSTEIN NYATT VARBER,,,.... T-674 P.39/51 F-828 • JFN-ld-2NE71 1b 11 �t-I%x1n t.orminea courts t orp vo or.v r.oy�po 1 conference, the staff planner told Dr.Eubanks that ft would be necessary for him to obtain approval under the County's 1041 Regulations before such development could oecos. 21. On October 25, 1999, Leonard M. Oates, an auorney representing Dr.Eubanks, sent the County Attorney a letter objecting to the application of the I041 Regulations io the property. Specifically, Mr. Oates informed the County Attorney that "(tlhe Eubanks wish to take exception to the County's position that they process their application Through 1041 Review." 22. Mr. Oates did not receive a written response to his letter to the County Artornty. Mr.Oatcs did receive a telephone call by which the County Attorney informed Mr. Oates that the County Attorney believed review of Dr.Eubanks' proposal was required under the County's 1041 ReguTations. 23. In February 2000, Haas Land Planning, 1]..C, submitted an application with respect to the Property for review under the County's 1041 Regulations(tbc-Applica4ce). Tbe'Applicarion expressly provided that it was being made under protest and that Dr.Euba iks and his wife "still take exception w the County s position which holds that 1041 Review is required." 24, On May 16, 2D00, the County Hearing Officer (the "Hearing Officer") conducted a public hearing concerning the Application pursuant to the procedures in the Code for development subject to the County's 1043 Regulations. At this bearing, reprasentatives of Dr. Eubanks informed the Hearing Officer that Dr. Eubanks, as s threshold matter, objected to application of the 1041 Rog"ons to rbe Property. 25. At the conclusion of the bearing on May i6, 2000, the Hearing Officer denied the Application on the grounds that the Property is within a roclaall arse and Section 3-80-050(D)of the Couniy's 1041 Regulations probi'bits development within such areas. 26. On May 31, 2000, Dr.Eubanks, through his agent Haas Land Planning, LLC, sent a wrinen request to the Board requesting a bearing before the Board to review the 'decision of the Hearing Officer pursuant to the takings determination provisions of the Code. This written request reasserted that"the Eubanks should never have been made to apply for 1041 Environmental Hazards Review in the first place." 27. On July 12, 2000, the Board convened a hearing for the purpose of considering Dr.Eubanks' appeal of the decision by The Hearing Officer denying the Application. At this hearing, representatives of Dr. Eubanks informed the Board that Dr. Eubanks continued to object to'application'of the 1041 Regulations to the Property. This hearing was continued until .August 21, ?000, and then until September 13, 2000, and iben again until November 15, 2000. 28. On November 15, 20D0, the Board mode a final determination refusing to override the decision of the Hearing Officer denying the Application. The decision of the ".Sal nrnm ,sotto:.ors 4 -r— lam From-BROWNSTEIN HYATT VARBER„ T-674 P.40/51 F-828 01 16i11 �Pitkin Combined Covrts 970 925 6349 P.tBSzoe searing Officer denying the Appbcation and the subsequent decision by the Board to uphold this ecision are collectively referred to as the"Denial." 29. Pursuant To the express limitations on the CouuWs authority under ;ectiori 24-65.1-107 of the 1041 Statute, the County did not bave the authority to apply its 1041 regulations to Dr.Eubanks' proposed development of a single-family residence on The Property. 30. In addition,under the tetras of the County's 1041 Regulations, the County ;bould have exempted The Property from review. Section 3-80-020 of the Cotmty's 1041 tegularions lists several acriviries that are exempt from the 1041 Regulations Included among best exemptions are exemptions for the following i -A. Remodeling. expansion or reconstruction of single family and duplex structures provided there is no construction or expansion of a structure that would create additional 1041 hazard impacts. C. The specific development has received approval by The Board of County Commissioners, Planning and Zoning Commission or the Planning Director pursuant to these regulations." 31. By proposing to replace the existing borne on the Property, albeit in a different location, Dr. Eubanks' proposal satisfied the mquiremcnis of subparagraph A of Section 3-SO-020 of the County's 1041 Regulations. 32. The County has consistently, and at all Times, interpreted and explained the above-quoted language of subparagraph C of Section 3-80-020 of the 1041 Regulations w mean than all lots within any subdivision approved by The Board pursu m; t0 a platted and recorded subdivision are exempt from the 1041 Regulations. This has been the case even with respect to existing lots That are known To be exposed to hazards of The type addressed by the 1041 Regulations. Examples include the Starwood Subdivision,The Brnshcreck Village Subdivision, the Gateway io Snowmass Subdivision and various subdivisions within the Red Mountain area of the County. 33. Dr.Eubanks and his consultants demonstrated to the County that the Property satisfied the exemptions listed in Section 3-80-020 of the County's 1041 Regulations. 34. Dr.Eubanks, tbrough his consultants, mquesied in writing that the Property be-exempt from the County's 1041 Regulations pursuant to Section 3-80-020 on no less Than three occasions: (1)The lour of October25, 1999, from Leonard M. Critics to the County Anomey; (2)the Application of February 2000; and (3)The May 31,2000,letter from Hass Land Planning, L LC, requesting The Board to review the decision by the Hearing Officer denying The Application. Jul-15-02 11:50am From-BROWNSTEIN HYATT UARBER............. T-674 P.41/51 F-828 J IYY-lb-CG191 VIPlD•1C •r3LR 331 �UIMIIIUW Ww •o i I • f I 35. In addition, Dr.Eubanks, Through his consultants. Mack two verbal requests that the property be czempT front The Counry's 1041 Regulations, once to the hearing Officer on May 16,2000,and once To the Board on July 12.2000. �c e-r r,r air vi 1'OR RLLffiF , (Certiorari Review Under C.R.C.P. 106(ax4)) . 36. Paragraphs 1 through 35 are incorporated herein by reference. Pursuant to the cxcmplon provisions 37. i of Section 3-g0.020 of the Code, the I County has no autboriTy to require Dr.Eubanks to obtain approval uadu the Counry's 1041 Regulations before constructing a new single-family residence on The Property. 38. Pursuant to the 1041 Statute, the County's 1041 Rcgula ores County.do apply to the property and are invalid to the cxTent they were applied to the Property by 39. In requiring Dr.Eubanks To apply for approval under the 1041 Regulations and issuing the Denial,the County abused its discretion and/or exceeded its jurisdiction. 40. Pursuant To C.R.C.P. 106(a)(4),Dr.Eubanks is enTitl.,d to cerUorwi review of the Denial and an order invalidating The Denial. SECOND gA_� Q RELIEF (Mandamus Under C RC.P. 106(a)(2)) 41. Paragraphs 1 Through 40 are incorporated herein by reference, 42. Dr. Eubanks has a clear right under the 1041 Statute to have the Propary exempted from the County's 1041 Regulations with regard to his plan to develop a single-family residence on the Property. 43. The County has a clear obligation tinder the 1041 Statute to exempt the Property from The County's 1041 Regulations with regard to Dr. Eubanks plan to develop a single-family residence on the Property. result of the efusal to 44. Dr. Eubanks has suffered damages as oes include,but�are not rlrmited to, exempt the Propeay from the 1041 Regulations. Tbese datttaE consulting ferns paid by Dr. Eubanks to process the Application and rite cost of delaying construction of The planned residence. 45. Pursuant to C.R.C.P. 106(a)(2).The court should issne a writ of mandamus directing the County d op wcspneie� dman1ardol etion$ with reard to D Eubanks' p1-anstot ail famlresice and wt D.r. Eubanks such,damages as be proves be has su stained. 6 nii.dl fYJ3Mn 3113Y�D 7"C 1/i. C�1 Jul-15-02 11:50am From-BROWNSTEIN HYATT PARBER,,,,,,,,,,,,, T-674 P.42/51 F-828 JRwi6-2M1 16:16 Pickln Combined Cour[s • / 970 925 153g5 P.&VIUS THIRD CAM FOR RELIEF (Declaratory7udgmeut Under MC-P.57) 46. paragraphs 1 through 45 are incorporated herein by reference. 47. An actual controversy exists as to whether the County's 1041 Regulations satisfy the requirements of the 1041 Statute. 48. Dr.Eubanks is etttitled to a declaratory judgment finding that the 1041 Regulations are void on their face as inconsistent with the 1041 Stature and void as applied to the Properly. WHEREFORE.Dr.Eubanks prays that this Coutr. 49. Enter an order finding that the County abused its discretion by requiring Dr.Eubanks to seek approval from the County under the 1041 Regulations for his proposed residential development of the Property; 50. Enter as order finding that the County exceeded its jurisdiction by requiring Dr.Eubanks to seek approval from the County under the 1041 Regulations for his proposed resideotial development of the Property; - 51. Enter an order finding that the 1041 Regu lmicus do not apply to Dr.Eubanks' proposed residential development of the Property and invalidating the Denial; 52. Enter an order funding that the 1041 Regulations am void on their face because they do not comply with the 1041 Statute; 53. Issue a writ of mandamus directing the County to declass that the property is exenps from the 1041 Regulations with regard to Dr. Eubattka' plans to construct a single- family residence and awarding to Dr.Eubanks such damages as be proves he has sustained; and 54. Grant Dr.Eubanks such other relief as the Court deems just and proper. .e,ac,m,orsv 1vum:wo qe 7 T-5T4 P.43/51 F-1129 5-02 11:51am From-BROWNSTEIN HYATT UARBER........ ..... VM 925 6349 P.08�08 FYJ-10-2601 16;17 • Pttkln Combined Courts . l Respectfully aubMined this 15th day of Dm=ber,2000. 077E d,J013NSON,ROBINSON, NEB&RAGONEM P.0 B a. 116 7.Bart]o ATUKMeV far Plaint'ff plaintiff's Address: c/o Probe Resollrces 4250 Natioa0m*Cenw 700 Louisiana St. 1iouStp11, 17C 77002 h I i915 W 1 fl10t91 ILtYpO='p ro TOTRL P.08 Jul-15-02 11:51am From-BROWNSTEIN HYATT VARBER,,,,,,,,,,,,, T-674 P.44/51 F-828 EXHIBIT 6 10 Jul-15-02 11:51am From-BROWNSTEIN HYATT PARBER....,,,,,, T-674 P.45151 F-828 Q*S.'I y. FIt.E� 02 FEB 23 Fh 2: 31 DisTRICT COURT,PITK N COUNTY, COLORADO AS?-%• COLORA90 Court address:506 E.Main Sc., Suite E i�iw 45a- Aspen, CO 81611 Plaintiff: tCa%;Number: 01DR. 13TLLY RAY EUBANKS Defendant: COURT USE ONLY A BOARD OF COUNTY COMMISSIONERS OF PITKINCOUNTY, COLORADO OOCV342 Attorneys for Plaintiff: Division 1 J.Bart Johnson (Reg.No. 26116) RTIFICATE OF MAILING Omen, Johnson.Robinson,Neff&Ragonetri, P.C. I certify that a co of 112 North 1"Street, Suite C oregoing was malod to a l Counae) of Ord Aspen, Colorado 81611 Thi art?day of �1 4u41 2 2�,3 Telephone: (970)544-4637 art. Facsimile: (970) 544-4632 "9 L-mail: bart@gjmr.com JOINT MOTION FOR ENTRY OF FINAL JUDGMENT ON PLAINTIFF'S FIRST AND THIRD CLAIMS FOR RFLIEF Plaintiff Dr. Billy Ray Eubanks (•'Plaintiff") and Defendant Board of County Commissioners of Pitkin County ("Defendant"), by and through their undersigned counsel, respectfully submit this joint Motion (or Entry of Final Judgment on Plaintiff's First ant Third Claims for Relief. 1. This ease involves a challenge by Plaintiff to actionb taken by Defendant concerning a parcel of property owned by Plaintiff iu Firkin County. Specilic;,Uy, Plaintiff has cltallcngcJ the Defendant's decision to treat his plans for development of a single-family residence on his property us being subject to review under Section 3-S0,Areas of Ideal and State Tnterest8/IU41 Environmental Hazard Areas, of the Piikin County Land Use Code (the "1041 Regulations"). 2. Plaintiff filed his Complaint in this matter on December 14, 2000. In his First Claim for Relief,Plaintiff sought rertiorari review under C.R.C.P. 106(a)(4). In his Second Claim for Relief, Plaintiff requested a writ of mandamus dirccung the County to declare that his v.».x., slaw mnua rmm 1 I I Jul-15-02 11:512m From-BROWNSTEIN HYATT &FARBER,,,,,,,,,,,,, T-674 P.46/51 F-828 UV/z4/4UUr Mull ptroperry is exempt from the 1041 Regulations. And in his Third Claim for Relief, Plaintiff requested a declaratory Judgment Pursuant to C,R.0 P. 57 that the 1041 Regulations are void because [hey are incansisent with requirements of the Colorado Revised Statutes, in particular C.R.S. §§ 24-65.1-101 51 I M(the"1041 Staturo'7. related to Plaintiff s claims for relief are set 3. The relevant undisputed facts forth on Exhibit A attached hereto. 4, On March 16, 2001, Plaintiff filed a Motion for Summary Judgment pursuant to C.R.C.P. 56 on his Third Claim for Relief, arguing that the 1041 Regulations arc invalid because they do not comply with the mandates of the 1041 Statute. 5, Defendant filed a Response in Opposition to Motion for Summary Judgment opposing Plaintiff Motion for Summary Judgment, but Defendant did not file a cross- motion for summary Judgment. 6, On September 13, 2001.the Court entered an Order on Plaintiffs Motion for Summary Judgment in which the Courtdenied Plaintiff's Motion. In support of its Order,the Court concluded drat the 1041 Regulations do not conflict with the 1041 Statute and arc not invalid. Because ute law of this case announced by the Coun in such Order is dispositive of Plaintiffs First and Third Claims for Relief, Plaintiff and Defendant request that the Court enter final judgment against Plaintiff and in favor of Defendant on Plaintiffs Fust and Third Claims for Relief. In addition, Plaintiff and Defendatnds that request that The Court irst and Third Claims fotiff s rRelief Claim for Relief with prejudice l the S f;ram eer v CrowLev, 660 P.2d 1279, 1281 (Colo- provide un adequate remedy at Saw, Sce available if there is no other available remedy); see also 1983) (a writ of mandamus is only 'S afar.i. p fbmmn., 763 P.2d 292, 295-96 (Colo. 1988) I a V. City of Colorado Sarin (holding that a mandamus action [s not approPriate if cerriorari review under C_R.C.P. 106(a)(4) is available). 7. Given the undisputed facts of this case recited in )xJ)b"' Plunuff stipulates that the merits of his First Claim for Relief[urn on whether Defendant and the County misapplied the 1U41 Statute as it applies to Plaintiff property. The law of this misconsuued or case announced i the Coun 041 of September 13, 2001, denying Plaintiffs Motion for Summary Judgment on his Third Claim for Relief is diapositive of this issue. Thuefore, it would be a waste of judicial resources for the p.'uties to file briefs on Plaintiffs First Claim for Relief as normally required under C.R.C.P. 106(a)(4). Plaintiff further stipulates that if Defendant's 1041 Regulations are ulumately found to be valid as consistent with the 1041 Statute, then, on the record made in this case, Defendant's decision (through the Hearing Officer) to deny Plaintiffs application was not an ubuse of discretion or an exceeding of jurisdiction- S. With regard to Plaintiffs Thud Claim for Relief, there are no outstanding factual or legal issues in light of the court's Order of September 13. 2U01. Therefore, it is appropriate for the Court to enter u final judgment against Plaintiff and in favor of Defendant on Plaintiff Third Claim for Relief. saws, » �Im►M 2 Jul-15-02 11 :52am From-BROWNSTEIN HYATT VARBER..... T-674 P.47/51 F-628 9. By joining in this Motion, Plaintiff is not waiving any rehts or remedies, including any appellate rights with respect to Plaintiffs First and Third Claims for Relicf. ptatnaff is simply acknowledging that the law of this ease precludes recovery by Plaintiff on his First and Third Claims for Relief and that continuing to prosecute those claims ar this juncture would be futile, Plaintiff intends to appeal the Court's Order of September 13, 2001, and in Lite event he is sacceskNl OR appital,he intends to prosecute his First and Third Claims for Relief. 1u. The procedure sought by the patties in this Motion is recognized and accepted by the Colorado Appellate Courts. _SM ,Bolter v Moore & Company, 681 P.2d 962, %6 (Colo. App. 1984); she so �tiae v. Cyr r 167 Colo. 554, 449 P.2d 355 (1969); Churder V. Winslow Crane Service Co„ 142 Colo. 294, 350 P.2d 1044 (1960). In Holter, the Plaintiffs brought two claims for relief against a real estate broker for recovery of a commission. After the trial court dismissed the Holters' first claim fur relief. struck their jury demand, and struck their Prayer for exemplary damages, the Holters chose to take as adverse judgment on their second claim rather than proceeding to trial to expedite their appeal on the Court's prior rulings. Holter, 681 P.2d at 964. On appeal, the Court of Appeals held that the procedure in Holter was proper and did not violate the policy against piecemeal appeals. 7d. at 966. WHEREFORE, Plaintiff and Defendant respectfully request that the Court enter an order as follows: (a) Dismissing Plaintiffs Second Claim for Relief on the grounds that Plaintiff s First and Third Claims for Relief provide an adequate remedy; and (b) Entering final judgment for perandant on Plainuf 's First and Third Claims for Relief on the grounds that the Conn's Order on Plaintiffs Motion for Summary Judgment of September 13,2001, is diapositive of these claims. Respecrfully submitted this Z day of_� 2002. PITKIN COUNTY ATTORNEY oTTEN. JOHNSON, ROBINSON,NEFF& RAGONETTl, P.C. By: By. John M.El arc Johns ri26116 Attorney or Defendant Attorneys for Plaintiff Jul-15-02 11:52am From-BROWNSTEIN HYATT VARBER......, ,,,,, T-8T4 P.48/51 F-828 EXHTBTT A Statement of❑ndigoilted 'a The pertinent facts are undisputed by the parties and are set forth below: 1. Dr. Eubanks owns a parcel of real property in unincorporated Pitkin e Final at thereof County , in P described Book 17. at page 1,efner in the real property reWO11, Pursuant tocords ids the County(the ""PropcnY )1 2. Pursuant to Sheet 14 of the official County Zoning Map duted Match 25, 1974, and Board Resolution No. 74-16 dated March 25, 1974, the Property was included within the AF-1 zone district of the County it,; of May 17, 1974. 3. Pursuant to the County zoning regulations in effect as of May 17. 1974, single family dwellings were permitted within the A1L1 zone district its a"use allowed by right." 4. The majority of the Pmperty is currently located within the AFR-10 zone district pur6uant to the Pitkin County Land Use Code(the "Code'j,though a small portion of the iwrthwestern portion of the Property is located within the R-15 zone district pursuant to the Code. Pursuant to the regulation.within the Code regular land use within these zone districts, developrnellt of a single-family residence on the Property is currently permitted on the Property cis a use by right. 5. On October 25, 1999, an attorney representing Dr.Eubanks sent the Pitkin County Attorney a letter objecting to prior positions of the County Graff that the Property was subject to regulation under the County's 1041 Regulations. In response, Dr. Eubunks' attorney received a telephone cull by which the Pitkin County Attorney informed the attorney that review of Dr.Eubanks' proposed development was subject to the County's 1041 Regulations. 6. in February 2000, Mitch Haas of Haas Land Planning,LLC, submitted an application with respect to the Property for review under the Coanty's 1041 Regulations (the -.application"). The Application expressly provided that it was being made under protest and that Dr. Eubanks and his wife "take exception to the County's position which holds that 1041 Review is required." 7. On May 16, 2000, the County Hearing Officer (the "Hearing OfFrcer'� conducted a public hearing concerning the Application pursuant to the County's 1041 atives r that Regulations. AT This thre rr hearing, manes nobjecte�tDo raN cEubanks oamof t1�ed1t041he HR�gulatearing O n.,Ceu the Property. R. At the conclusion of the hewing an May 16, 2000, the Heating Officer denied the Application on the grounds that development of a residence on the Property would not comply with the County's 1041 Regulations. Specifically, the Hearing Officer based his suss.., D W7M Y749W1.230e A-1 Jul-15-02 11:52am From-BROWNSTEIN HYATT UARBER,,,,,,,,, ,,, T-8T4 P.49/51 F-928 i f� I conclusion on the fact that the Property ig located in a rock-Ul hazard area. The County' 1041 K. Regulations prohibit residential development in rock-fall hazard areas. 9. Dr. Eubarilm through his agent Haas Land Planning, LLC:, initiated a takings challenge in response to the decision of the Hearing Officer, requesting a hearing berore the Defendanl pursuant to the takings provisions in Section 3-290 or the Code. This written request reasserted that "the Eubanks should never have been made m apply for 1041 Environmental Hazards Review in the first place." 10. On November 15, 2000, the Board made a final determination denying Dr. i Eubanks' takings claim. 11. Subsection 3-80-020 of the County's 1041 Regulations is entitled "Exempt Development Activities" This Section lists only the following development activities as exempt from the County's 1041 Regulations: j (a) "Remodeling, expansion or reconsutiction of single family and duplex structures provided there is no construction or expansion of a structure that would create additional 1041 hazard impacts" (h) "Construction of less than five thousand dollars ($5.000.00) in value, if the. Planning Director determines that any 1041 hazard impacts are avoided or adequately mitigated." (c) 'The specific development has received approval by the Board of County Commissioners, Planning and Zoning Commission or the Planning Director pursuant to these regulations." sans,r m+wm pv+cm,:v rw A-2 Jul-15-02 11:53am From-BROWNSTEIN HYATT &FARBER,,,,,,,,,,,,, T-674 F.50/51 F-828 DISTRICT COURT,PI1 KIN COUNTY, COLORADO Court address:506 E.Main St., Suite E Aspen, CO 81611 Plaintiff: DR.BILLY RAY EUBANKS Defendant: ♦ COURT USE ONLY A BOARD OF COUNTY COMMISSIONERS OF PnXIN COUNTY, COLORADO Case Number. OOCV342 Attorneys for Plaintiff: Division 1 J.But Johnson (Reg.No.26116) Otten,Johnson,Robinson,Neff&Ragonerri,P.C. 112 North l"Strctt,Suite C A.pcn, Colorado 81611 Tcicpbuna: (970) 544-4637 Facsimile: (970) 544-4632 E-mail: ban@ojmr.com ORDER ON JOAVT MOTION FOR ENTRY OF FINAL JUDGMENT ON PLAINTIFF'S FIRST AND THIRD CLARa FOR RELIEF THE COURT, having reviewed the parties' Joint Motion for Entry of Final Judgment on PlaintiXs First and Third Claims for Relief, and being fully advised in the premises, HEREBY ORDERS that: (u) Plaintiff s Secoaad Claim fur Relief is dismissed; and Jul-15-02 11:53am From-BROWNSTEIN NYATT PARSER,,,,,, ,,, T-874 P.51/51 F-828 f (b) Final judgmcm is hereby enrcred for Defendant on Plaintiff's First and Third Claims for Relief on the grounds that the Court's Order on Plainriff s Motion for Summary Judgment of September 13, 2001, is dispositive of these claimer. E DATED this 912day of ,2002. BYTRH COURT: District Court Judge i f I CER'11RICATIR OS M,N G t cunfY atat a co of mall goreel of Reeard 631 ,�Wof_01T — 2