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HomeMy WebLinkAboutnickelson.creek.road.vacationFIRST READING AND PUBLIC HEARING ON DRAFT ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING VACATION AND CONVEYANCE OF NICKELSON CREEK ROAD TO: Board of County Commissioners Regular Meeting - February 26, 2003 THRU: Cindy Houl~en, Community Development Director FROM: Suzanne Wolff, Senior Planner* RE: Vacation of Nickelson Creek Road -First Reading and Public Hearing REQUEST: The Applicm~t requests to vacate Nickelson Creek Road (I .9 miles), which intersects Capitol Creek Road and crosses the Capitol Creek Ranch. The road provides access to Capitol Creek Ranch, Nickelson Creek Ranch, and USFS lands. The application includes a map showing the location of the road. The Planning Commission recommended approval of the request on January 14, 2003, by a vote of 5-0. The staff memo to the Planning Commission, which fully addresses the review criteria, is attachedfor reference. The minutes from the meeting are not available yet. Only specific issues raised by staff, the Planning Commission or the Applicant are addressed below. APPLICANT: Pitkin County Board of County Commissioners REPRESENTATIVE: Barb Hogan, Open Space & Trails ZONING: Tbe northern portion of the road is located within the RS-30 zone district; the remainder of the road is located within the Rural/Remote zone district. ISSUES: Public Trail andParking Eas'ement: The details of the public trail and parking easement have not yet been finalized, therefore, staffproposes to delay second reading to ensure that the easement is recorded before the road vacation is adopted OR goes into effect (30 days after publication after adoption). Staffwill provide a date for second reading at the meeting. RECOMMENDATION: Staff and the Commission recommend that the BOCC adopt a "motion tovacate Nickelson Creek Road on first reading and set for second reading on ,2003." Attachments A. Staff memo to Planning Commission ctated'$anuary 14, 2003 Application provided separately AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO AUTHORIZING VACATION AND CONVEYANCE OF NICKELSON CREEK ROAD Ordinance No. -2003 Recitals I. The Board of County Commissioners ("BOCC") has initiated the procedure under the Pitkin County Land Use Code for the vacation of Nickelson Creek Road, which intersects Capitol Creek Road and crosses the Capitol Creek Ranch. 2. Pursuant to Ordinance No. 027-2002, the BOCC approved the acquisition of a conservation easement and option agreement with the Capitol Creek Ranch Company. Recital #9 of the Ordinance states, "Nickelson Creek Road traverses the ranch and provides access to National Forest Lands in the vicinity of Haystack Mountain. The road is steep and terminates at a trail entering into the National Forest, and is more appropriate for non-motorized use. The exact extent of the County's road right of way up Nickelson Creek road is undetermined. A condition of the Childs contracts is that the County vacate that right of way in exchange for a parking and trail easement along the same route." Condition #3 of the Ordinance states, "The Board approves the vacation of the County right of way along Nickelson Creek in return for a conveyance by CCRC and Robert Child of a Parking and Trail Easement to allow non- motorized public access to adjoining National Forest Lands." 3. Nickelson Creek Road provides access to Capitol Creek Ranch, Nickelson Creek Ranch, and US Forest Service lands. Suitable access to these lands will remain via an easement that will allow motorized access for owners and guests of Capitol Creek Ranch and Nickelson Creek Ranch, USFS personnel, holders of grazing leases on the adjacent public lands and the owners of the irrigation ditch. Non- motorized public access to the USFS lands will be permitted via a trail easement along the road. 4. Capitol Creek Ranch will grant an easement for utility lines within the road to serve Nickelson Creek Ranch. 5. This road vacation application is governed by the standards set forth in Pitkin County Land Use Code § 3-200-070 C. 6. The Pitkin County Planning and Zoning Commission reviewed the application on January 14, 2003 and recommended approval by a vote of 5-0. 7. The BOCC considered the application at a duly noticed public hearing on February 26, 2003, and on second reading at a regular meeting on ,2003. 8. The BOCC finds that the proposal complies with the applicable criteria set forth in the Pitkin County Land Use Code. NOW THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that: 1. The Board of County Commissioners does hereby vacate Nickelson Creek Road. Ordinance # -2003 Page 2 2. This road vacation shall not become effective until sucb time as a public trail and parking easement is recorded. NOTICE OF PUBLIC HEARING PUBLISHED I]N THE WEEKEND EDITION OF THE ASPEN TIMES ON 15th DAY OF FEBRUARY, 2003. INTRODUCED AND FIRST READ AT A PUBLIC HEARING ON THE 26th DAY OF FEBRUARY, 2003. APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE DAY OF ,2003. PUBLISHED AFTER ADOPTION IN THE WEEKEND EDITION OF THE ASPEN TIMES ON THE DAY OF This Ordinance shall become effective thirty (30) days after publication following final adoption by the Board. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO Jeanette Jones Jack Hatfield Deputy Clerk Chairman Date: APPROVED AS TO FORM: John Ely Cindy Houben County Attorney Community Development Director P167-02 264518/19 MEMORANDUM TO: Pitkin County Planning and Zoning Commission FROM: Suzanne Wolff, Senior Plam~er*~ RE: Vacation of Nickelson Creek Road DATE: January 14, 2003 REQUEST: The Applicant requests to vacate Nickelson Creek Road (1.9 miles), which intersects Capitol Creek Road and crosses the Capitol Creek Ranch. The road provides access to Capitol Creek Ranch, Nickelson Creek Ranch, and USFS lands. The application includes a map showing the location of the road. APPLICANT: Pitkin County Board of County Cotnmissioners REPRESENTATIVE: Barb Hogan, Open Space & Trails ZONING: The northern portion of the road is located within the RS-30 zone district; the remainder of the road is located within the Rural/Remote zone district. BACKGROUND: The BOCC recently approved the rezoning of the majority of the Capitol Creek Ranch to Rural/Remote m~d a development plan for seven residential parcels within the RS30 portion of the property. The entire property will be subject to a conservation easema~t. The County agreed to vacate Nickelson Creek Road in exchange for the granting of a public trail and parking easement (draft easement provided in the application); this agreement was contemplated in the ordinance approving the County's acquisition of lhe conservation easement. While only a portion of the road (0.19 miles) is identified as a County road in the Assets Management Plan, the County has asserted the entire length of the road is a public road, by virtue of historic and continued use of the road by the public. REFERRAL COMMENTS: Comments from Bud Eylar, County Engineer, are attached for reference. STAFF COMMENTS: Pursuant to Section 3-200-070 of the Land Use Code, Street and Easement Vacations, the County may vacate a road or easement at the request of a private Im~downer(s) or at insistence of the County, subject to the standards provided below. 1. Vacation shall be approved if it is demonstrated that upon vacation there shall remain suitable access to public arat ~ri~ate land pre~ent~y' accessed by t4be ~eet or easement:proposed for vacation. Response: Vacation of the road will limit future motorized use of the road to Capitol Creek Ranch, Nickelson Creek Ranch, the USFS and holders of grazing leases on the adjacent public landg easements will be recorded to retain these access rights. Non-motorized access by the public to the USFS lands will continue to be available by trail. Capitol Creek Ranch is granting a parking easement to the County that will provide adequate area for 6 vehicles and a trailer to turn around. 2. In the event of vacation, rights-of-way or easements may be reserved for the continued use of existing sewer, gas, water, or similar t~ipelines and aplgurtenance, for ditches, canals and appurtenances, and for electric, tele, ohone, and similar lines and appurtenances. Equestrian, .pedestrian, vehicular or other trails may also be reserved by the Board of County Commissioners. Response: Capitol Creek Ranch is granting an easement for utility lines within the road to Nickelson Creek Ranch. As noted previously, Capitol Creek Ranch is granting a trail easement along the road. 3. Any written instrument of vacation or a resubdivision plat approved by the Board of County Commissioners purporting to vacate or relocate roadways or portions thereof which remains of record in the counties where the roadways affected are situated for a period of seven (7~ years shall be t~rima facie evidence of an effective vacation of such former roadways. Response: The road vacation shall be enacted by ordinance of the BOCC. RECOMMENDATION: Staff recommends that the Commission recommend that the BOCC vacate Nickelson Creek Road. Attachnl ents A. County Engineer referral Application provided separately Bud Eylar, 10:52 AM 12/12/02, Nickelson (Nichelson) Creek Road Vacation Page 1 of 1 X-Sender: bude~pubwork (Unverified) X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 12 Dec 2002 10:52:49 -0700 To: suzanne Wolff <suzannew~ci.aspen.co.us> From: Bud Eylar <bude~ci.aspen.co.us> Subject: Nickelson (Nichelson) Creek Road Vacation Cc: brianp~co.pitkin.co.us, templeg~co.pitkin.co.us X-ECS-MailScanner: Found to be clean Suzanne, i have reviewed the application and have the following comments. · Nickelson (Nichelson) is shown in the Assets Management Plan as CR 9D. The county has claimed 0.19 miles as county road. the road may be 1.9 miles long and the public may very well have a prescriptive right over the remainder. There is also a bridge on this road that the county does not claim on our bridge system. Lastly we show the name as spelled on parenthesis, the county should resolve these differences before we get to the P&Z · There is private property at the end of this road. In addition, there may be access to US Forest Service lands. A total ban on motorized vehicles may not work. At a minimum the private owners must be provided access on this road or on an acceptable alternative. · If the USFS needs access for hunting season, then there may be need for a seasonal motorized access similar to Hunter Creek. · Public Works & Road mhd Bridge find the vacation acceptable. Printed for Suzanne Wolff <suzannew~co.pitkin.co.us> 12/12/02 NICKELSON CREEK ROAD VACATION APPLICATION Submitted by: Open Space and Trails November 25, 2002 Open Space & Trails Program 530 E. Main, Suite 301 Aspen, Colorado 81611 (970) 920-5232 NICKELSON CREEK ROAD VACATION APPLICATION Included in this application packet are the following materials: A letter requesting the subdivision exemption for a lot line adjustment Draft Public Trail Easement Map showing Nickelson Creek Access November 25, 2002 Ms. Suzanne Wolff Pitkin County Community Development 130 South Galena Street Aspen, Colorado 81611 RE: Nickelson Creek Road Vacation Dear Suzanne: Open Space and Trails is submitting this application to request the vacation of Nickelson Creek Road, which crosses Capitol Creek Ranch in Snowmass. (Nickelson Creek Road currently also crosses a small portion of the St. Benedict s Monastery s property, but that portion of the property containing the road will be conveyed to Capitol Creek Ranch through a lot line adjustment.) The County Commissioner's decision to vacate Nickelson Creek Road precipitated from the County's negotiations for the purchase of conservation easements on the Childs' property. Ordinance # 27-2002, adopted September 29, 2002 affirms the concept of vacating Nickelson Creek Road. While no recorded easement or deed to the County exists for this road, there is substantial evidence of the road's historic use as a public road. There are several public, recorded references which identify this road as a public road, and even part of the Pitkin County Road System. (These records are available upon request.) These records, along with testimony from public citizens of continued use of this road, would be sufficient material to enable the County to establish Nickelson Creek Road as a public road, as the prescriptive right already exists. The 1.9 mile length of road is currently used for access to the Capitol Creek Ranch and Nickelson Creek Ranch. In addition, it is used as access for those with grazing leases on USFS land. Nickelson Creek Road also receives very light use from the general public by hikers and hunters to access to adjacent national forest lands. In exchange for vacation of the Road, Capiiol Creek Ranch will convey to the County a public non-motorized trail easement from the Child Family, and a public parking area near the road's intersection Open Space & Trails Program 530 E. Main, Suite 301 t~PR~OO~REC~CL~O~A~ER Aspen, Colorado 81 611 (970) 920-5232 with Capitol Creek Road. A draft easement is attached for your review. This easement should satisfy the Land Use Code's standard that suitable public access remains when a road is vacated. Capitol Creek Ranch will retain exclusive motorized use of Nickelson Creek Road for parties that own land or water rights that are accessed by the road, and for holders of gazing rights on that area of USFS land. The applicant believes that this road vacation complies with sections 3-200-070 and 5- 200 of the Land Use Code. Please contact us if you have any questions regarding this application. Thank you for your assistance. Regards: Barb Hogan Open Space and Trails DRAFT PUBLIC TRAIL AND PARKING EASEMENT THIS PUBLIC TRAIL EASEMENT (the "Easement"), made and entered into this __. day of ,2002, by and between Capitol Creek Ranch Company, and the BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, a body corporate and politic ("Grantee"), RECITALS: 1. Grantor is the record owner of certain real property located at 4516 Capitol Creek Road, and containing a 3 mile stretch of Nickelson Creek to the USFS boundary; and 2. The Property is currently traversed by an unperfected road along Nickelson Creek, known as Nickelson Creek Road, between Capitol Creek Road and the White River National Forest, that has been used by the public to access said public lands; and 3. Grantor has agreed to convey a public non-motorized trail easement and parking area easement as more fully described in Exhibit A, in exchange for the County's agreement to vacate any rights for public motorized use of Nickelson Creek Road; and 4. Grantee is under contract to purchase conservation easements which will encumber the property and believe that non-motorized access along Nickelson Creek is more congruous with its efforts to preserve the natural features of the Property and surrounding public lands; and 5. Grantor desires by this instrument (a) to establish and to grant to Grantee a perpetual trail easement over the property of Grantor over and along the existing alignment known as Nickelson Creek Road and beyond into the National Forest, as described in Exhibit A, and (b) to convey a parking easement described in Exhibit A; and 6. Grantee desires by this instrument (a) to accept said trail and parking easement subject to the restrictions set forth herein, and (b) to assume certain responsibilities in connection therewith; and 7. Grantor will retain a motorized access along the existing Nickelson Creek Road for Grantor and may convey motorized access to the Nickelson Creek Ranch, the United States Forest Service, and any person or entity with a legal interest in any irrigation ditch which is accessed by said road. 11/25/02 AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows: 1. Grant of Public Trail Easement. Grantor hereby grants, transfers and conveys unto Grantee and its successors and assigns, for the use and benefit of the general public a 15' wide non-motorized and non-exclusive Trail Easement as further described located in Exhibit A. 2. Grant of Public Parking. Grantor hereby grants, transfers and conveys unto Grantee and its successors and assigns, for the use and benefit of the general public a Parking Easement of adequate size to accommodate six vehicles and a trailer turn around area, as further described and located in Exhibit A. 3. Grantee hereby accepts the Public Trail and Parking Easement in an "as is" condition, subject to the restrictions herein contained, and subject to all patent or latent defects or problems of any kind or nature. Such acceptance does not preclude improvement or maintenance activities within the Public Trail and Parking Easement insofar as such activities may be allowed or required by this Easement. 4. Trail Use Restrictions. (a) Public use of the Trail Easement shall be exclusively for non-motorized travel, and for no other uses or activities whatsoever. Public motorized vehicles will be permitted within the Parking Easement area. (b) The Public Trail and Parking Easement is hereby declared to be part of the Pitkin County Trail System, and the use of the Public Trail and Parking Easement shall also be governed by the rules and regulations and other provisions of Title XII of the Pitkin County Code entitled "Trail Regulations", as said Title XII may be amended or recodified from time to time, provided always that the provisions of this Public Trail Easement shall control wherever they are more restrictive than the provisions of said Title XII. (c.) The Grantor retains an exclusive motorized access along Nickelson Creek Road for Grantor, Grantor's successors or assigns, and guests of Grantor. Grantor further retains the right to convey easement right for motorized access to the owners of real property or water rights which are accessed by said road. 5. Public Trail Easement Care and Maintenance. Grantee hereby assumes complete responsibility for and agrees to care for, groom and maintain the Public Trail Easement in a clean and attractive condition and in a good and safe order and repair, at its sole cost and expense, unless the need therefor is caused by Grantor or its successor 2 11/25/02 in interest in the ownership of the underlying real property, in which case Grantor or it successor in interest shall perform the maintenance or care so required. Grantee's maintenance responsibilities shall include, but not be limited to, trash and debris removal, keeping the trail clear of rocks, vegetation and other obstructions, grooming as needed, controlling erosion and water runoff, and general care and maintenance. 6. Enforcement. Grantee agrees to enforce diligently all covenants and use restrictions set forth herein and all other applicable rules and regulations as may be contained in Title XII of the Pitkin County Code, and to prosecute violations thereof. In addition, Grantor and its successors and assigns forever in the record ownership of the underlying real property shall have the right (but never the 'obligation) at any time to prosecute any action that may be necessary or appropriate to enforce said covenants and use restrictions and Title XII rules and regulations by injunction and/or damages action or otherwise, which action may join Grantee as a defendant if it has failed to perform its covenants or its enforcement obligations hereunder. The prevailing party in any such private enforcement action shall be entitled to an award of its reasonable costs and attorney's fees incurred in connection therewith. If Grantor or it successors and assigns in the record ownership of the underlying real property incurs any maintenance or restoration costs occasioned by a violation of the terms of this Easement by Grantee or members of the general public, Grantee agrees to promptly reimburse Grantor or its successor or assign for all such costs. 7. Grantor's immunity and Grantee's Obligation to insure. The parties expressly acknowledge that the Public Trail Easement is granted for a "recreational purpose" under C.R.S. Section 33-41-101, et. seq., and that Grantor is entitled to the benefits, protections and limitations on liability afforded by Colorado law governing recreational Easements, including without limitation said Section 33-41~ 101, et. seq. By granting the Public Trail Easement, Grantor shall have no obligation to repair, clear or otherwise maintain the area within the Public Trail Easement, or to insure or indemnify Grantee or the public for any injury, claim or damage to any person or property, whether alleged to have occurred as a result of use of the Public Trail Easement for public non- motorized travel or otherwise, or due to the condition of the public trail. Grantee further agrees to add Grantor (and its successors and assigns in the ownership of the underlying real property traversed by the Public Trail Easement, or any part thereof) as additional named insureds on its comprehensive general liability insurance policy, which insurance shall be maintained by the Grantee to provide protection against liability from claims arising out of the use of the Public Trail Easement. Such insurance shall be carried in amounts not less than the liability limits specified in C.R.S. Section 24-10-114(1), as it may be amended from time to time, and shall provide Grantor and her successors and assigns with thirty (30) days advance written notice prior to cancellation or termination. Grantee shall, upon written request therefor from Grantor or any successor or assign, provide a Certificate of Insurance as verification of compliance with these requirements. 1/25/02 8. Attorneys' Fees. In the event the interpretation or enforcement of this Public Trail Easement should ever become the subject of litigation between Grantor (or her successors and assigns in the record ownership of the underlying real property traversed by the Public Trail Easement, or any part thereof) and Grantee, the prevailing party shall be entitled to an award of its reasonable costs and attorneys' fees incurred in connection therewith. 9. Binding Effect. This Easement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns forever including all future record owners of the underlying real property traversed by the Public Trail Easement, or any part thereof. The benefits and burdens hereof shall also run with the title to the underlying real property and all parts thereof traversed by the Public Trail Easement. This Easement may only be amended by writing signed by Grantee and by the then record owners of the underlying real property traversed by the Public Trail Easement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. GRANTOR: By: GRANTEE: Board of County Commissioners of Pitkin County, Colorado By: Patti Kay-Clapper, Chairperson ATTEST: Jeanette Jones Deputy Clerk and Recorder Approved as to Form: Manager Approval John Ely Hilary Smith, County Manager Attorney 4 11/25/02 Recommend for Approval Approved as to Content Dale L. Will, Director Rick Neiley, Chair Open Space and Trails Open Space and Trails Board of Trustees STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ~ day of ,2002, by Witness my hand and official seal. My commission expires: Notary Public 11/25/02 STATE OF COLORADO ) COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this __ day of ., 2000, by Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this __ day of ,2002, by Patti Clapper as Chair of the Board of County Commissioners of Pitkin County, Colorado, and attested to by Jeanette Jones as Deputy Clerk and Recorder of Pitkin County, Colorado. Witness my hand and official seal. My commission expires: Notary Public 6 II./25/02 EXHIBIT A (DEPICTION OF NICKELSON CREEK ROAD~ PARKING ARF~A~ AND TRAIL LOCATED ABOVE THE ROAD CONECTING TO THE WHITE RIVER NAT[, FOREST.) 2646356_2.DOC