Loading...
HomeMy WebLinkAboutbass.mountain.valley.takingsBASS MOUNTAIN VALLEY 1041 HAZARD REVIEW- TAKINGS DETERMINATION TO: Pitkin County Board of County Commissioners Regular Meeting - July 9, 2003 THRU: Cindy Houb~n, Community Development Director FROM: Suzanne Wolff, Senior Planner* RE: Bass Mountain Valley 1041 Hazard Review- Takings Determination SUMMARY OF REQUEST:' The Applicant requested a hearing, pursuant to Section 4-150 of the Pitkin · County Land Use Code, as a result of the Hearing Officer's denial of the Bass Mountain Valley 1041 Hazard Review on June 17, 2003. The Applicant contends the denial constitutes a taking of private property without just compensation. The entire propen'y is encumbered-by slopes in excess of 30%. The lot is within a BOCC approved subdivision. APPLICANT: Bass Mom~tain Valley LLC LOCATION: Mountain Laurel Drive; Lot 101, 3rd Filing~ Mountain Valley Subdivision ZONING/LOT SIZE: The property is zoned R-15A and contains 18,480 square feet. STAFF COMMENTS: The standard of review for a BOCC takings determination is identified in Section 3-290 of the Land Use Code, and reads as follows: "The Board shall determine whether the property owner will be denied all reasonable use and economic return on the property as a result of the questioned determination. If the Board determines that a taking has or may occur, it shall take such action as it deems appropriate to remedy the situation. In making its decision the Board shall consider the value of the property'as a whole and shall not base its decision on the impact of the regulation on one portion of the ownership interest. In making its determination, the Board shall consider the beneficial uses which remain in the property notwithxtanding the challenged determination and shall give due consideration to the reasonable investment-backed expectations of the landowner." Section 4-150 of the Code requires that the Applicant submit the request for a takings hearing within 15 days of the Hearing Officer's decision and that the BOCC schedule a hearing within 15 days of the request. The BOCC is required to make a decision regarding the application for a taking determination within t5 days after the hearing on the matter. SUMMARY OF APPLICANT'S POSITION: The Applicant requests a taking determination pursuant to Code section 4-150 as specified in the attached letter (Attachment A). The Applicant contends that the BOCC's denial of the application has denied use of the property. ISSUES RELATED TO THE PROPOSED DEVELOPNIENT: Issues related to the proposed development on tile subject property have been fully addressed in staff's memorandum to the Hearing Officer dated June 17, 2003 (Attachment B). The Hearing Officer denied the application based on the finding that the property is encumbered by slopes in excess of 30%, where development is prohibited pursuant to Section 3-80-050(C) of the Land Use Code (Attachment C). SUMMARY OF RECOMMENDATION: Pursuant to section 3-290-020 of the Code, the BOCC shall consider whether or not a taking has occurred by virtue of the previous denial. Tile BOCC shall: 1. Find that no taking has occurred because: A. The Applicant has no reasonable investment-backed expectation to develop a new single- family residence in a hazard area (slopes in excess of 30%); B. The Applicant has not been denied all reasonable use and economic return in connection with the denial of the development application; and C. The Applicant does not have the right to the most profitable use of his property, which would require development in a hazard area. 2. Find that a taking has occurred because: A. There are not any areas on the property that are not encumbered by slopes in excess of 30%; B. The proposed building envelope is the best possible location on the property for development; and C. The denial constitutes a taking of all reasonable use and economic return from file subject property. The BOCC shall direct staffto prepare a resolution of approval or denial based on their final ruling. ATTACHMENTS: 1. Letter from Applicant regarding takings determination 2. Staff's memo to the Hearing Officer dated June 17, 2003 3. Hearing Officer Determination dated June 17, 2003 June 18, 2003 Pitkin County Board of Commissioners c/o Ms. Suzanne Wolff, Senior Planner Pitkin County Community Development Department 130 South Galena Street Aspen, Colorado 81611 RE: REQUEST FOR TAKINGS DETERMINATION Dear Suzanne, I am the designated representative for the Howard Bass Mountain Valley, LLC, (hereinafter, "the applicant"), who is the owner of Lot 101, Third Filing, of the Mountain Valley Subdivision. The subject property is a vacant lot that is zoned R-15A, which has a minimum lot size of 15,000 sq. ft. The parcel contains 18,480 sq. ft. of land, making it a conforming- sized lot of record. The property is located on Mountain Laurel Drive, one of the primary roads in the subdMsion. Lot 101 is, to the best of the applicant's knowledge, the last undeveloped lot in the Mountain Valley Subdivision. The applicant is hereby requesting a takings determination for this property, pursuant to Sections 3-290 and 4-150 of the Land Use Code. The application for 1041 Hazard Review for this property was denied by the Hearing Officer on June 17, 2002. By virtue of this action, the applicant has been denied use of the entire property. It is the applicant's contention that this constitutes a taking without just compensation, which is in violation of both the U.S. Constitution and the Colorado Constitution. The Hearing Officer denied this application because slopes across the entire lot exceed thirty percent (30%). The Land Use Code does not presently give the Hearing Officer any discretion in the review of development applications in this type of hazard area, requiring the applicant to appeal to the Board for a takings determination. The property is also subject to severe wildfire hazards. However, the Code was recently amended to authorize the Hearing Officer to permit development in such hazard areas when the subject property is located in a Board-approved subdivision. The 1041 application for this property demonstrates that the wildfire hazards can be mitigated. Wildfire hazards will be mitigated through a combination of the defensible space measures and structural design and construction practices specified in the Land Use Code. The determination issued by the Hearing Officer concludes that these measures can successfully mitigate the wildfire hazards. Pitkin County Board of Commissioners June 18, 2003 Page Two The steep slopes on the site also can be developed without posing any danger to residents of the property or residents of neighboring properties. A geologic report was prepared by John W. Rold, C.P.G., of Wright Water Engineers, Inc., analyzing the potential for rockfall hazard on the property and evaluating the stability of the slopes on the property for development. Mr. Rold reaches the following conclusions with respect to these potential geologic hazards: "Although one cannot totally rule out a freak, unforeseeable rockfall occurrence, the field evidence cited above strongly indicates that the rockfall hazard is so low that it should not deter construction or habitation on this lot." "Field evidence indicates soil stability should not be a problem on original slopes and can be adequately addressed with standard geotechnical evaluation and design of cut slopes." Based on these conclusions, we respectfully request that the Board of County Commissioners make the following findings regarding this property: 1. The entire property is encumbered by slopes in excess of thirty percent. 2. The proposed building envelope is in the most suitable location on the property for development, consistent with the pattern established on surrounding lots. 3. The denial of this application by the Hearing Officer constitutes a taking of all reasonable use and economic return from the subject property. 4. Approval of the building envelope proposed by the applicant is the appropriate ' remediation for this taking. Response to Land Use Code Requirements Section 5-220-010 of the Land Use Code establishes the minimum submission contents for a takings determination. Following are the applicant's responses to these requirements. A written request for the takings hearing prepared pursuant to the procedures in Section 4-150. Response: This letter constitutes the applicant's written request. ~4n identification of the property and the properry interest adversely affected by the determination. Response: The property is legally described as Lot 101, Mountain Valley Subdivision, Third Filing, Pitkin County, Colorado. Thc applicant is the fee simple owner of this property. Pitkin County Board of Commissioners June 18, 2003 Page Three Past and current uses of the property. Response: This a vacant parcel of land. The petitioner's original purchase price for the property. Response: The petitioner purchased this property for $1,050,000 on 2/7/02. The assessed valuation of the property. Response: The current value assigned to the land by the County's Tax Assessor is $1,300,000. ~ Appraisals and/or preliminary estimates of value made on the property. Response: An appraisal of this property was conducted on 11/15/01 by Aspen Real Estate Appraisers, Ltd. The appraisal established the value of the property at that time as $1,100,000. Current mortgage principal balance and interest rate. Response: The current mortgage balance is $716,311 and the interest rate is 7%. Past income generated by the property and expenses relating to the property. Response: The property has never generated any income. The expenses relating to the property include the following: closing costs for purchasing the property, which were approximately $3,500; property taxes, which now cost $7,911.84 on an annual basis; and the surveying and planning costs for preparing and processing this application. Ownership structure for the property (partnership, corporation, etc.). Response: The Howard Bass Mountain Valley LLC is the sole owner of this property. Howard Bass and his wife, Michele Bodner, are the sole owners of this LLC. Owner's tax bracket. Response: The owner is in the 35-38% tax brackets. Pitkin County Board of Commissioners June 18, 2003 Page Four Rental value of &e property with and without the offending determination. Response: This is not expected to be a rental property. It is located in an area which is owner-occupied for either permanent or seasonal residences. Sale value of the property with and without the offending determination. Response: The property is currently listed for sale for $1,495,000. If 1041 approval is not granted to this property, it would have no sale value. · I Any other information bearing on the difference in the value of the property with and without the offending determination. Response: This lot is located in a subdivision which was initially approved by Pitkin County in 1971. Until last year, the owner of this lot had the right to apply for a building permit to develop a single family residence on the property, without any 1041 review. This was a right that was enjoyed by the owners of all of the surrounding properties. The applicant has complied with all of the procedures and standards of 1041 hazard review. As a result of subjecting this lot to 1041 review, the County has already obtained commitments from the applicant to mitigate the wildfire hazards. The applicant has also agreed to follow the recommendations of the consulting geologist to mitigate geologic hazards on the property. Finally, the applicant hereby agrees to comply with those conditions identified by the Planning Office and the referral agencies in the review memos submitted to the Hearing Officer. Therefore, the County will benefit from approving a project that complies with Code standards in ways which have never before been achieved in the Mountain Valley Subdivision. It would be unreasonable to deny the applicant all beneficial use of this property, when it is simply the owner's desire to develop the lot in a manner that is entirely compatible with the houses built on the surrounding properties. I believe we have provided you all of the required information to process this takings determination. We request the opportunity to present additional information to the Board at the hearing on this matter. Should you require anything else, please feel free to call me. Very truly yours, Al,AN RICHMAN PLANNING SERVICES Alan Richman, AICP MEMORANDUM TO: Jim True, Pitkin County Hearing Officer FROM: Suzaune Wolff, Senior Planner* ~(L~) RE: Bass Mountain Valley 1041 Hazard Review DATE: June 17, 2003 REQUEST: The Applicant requests approval to establish a building envelope in which to construct a single family residence. APPLICANT: Bass Mountain Valley LLC LOCATION: Mountain Laurel Drive; Lot 101, 3rd Filing, Mountain Valley Subdivision ZONING/LOT SIZE: The property is zoned R-15A and contains 18,480 square feet. BACKGROUND: The BOCC approved the plat of the Mountain Valley Subdivision in 1971. The plat was recorded in Plat Book 4 at Page 186. ACCESS: The property is accessed directly offofMountain Laurel Drive. REFERRAL AGENCIES: Comments from the County Engineer are attached for reference. The Mountain Valley Homeowners Association did not provide comments. STAFF COMiVIENTS GMOS/Merger: The property is located within the Urban Growth Boundary. The lot was legally created prior to May 8, 1972, and is, therefore, exempt from growth management up to the maximum allowable floor area (3,696 square feet, not including subgrade and garage space). Merger is not an issue, since the lot is within a BOCC approved subdivision. 1041 I-I~ZARD REVIEW: Wildfire: Eric Petterson rates the wildfire hazard for the entire lot as severe. He recommends that the structure be built to a "stand alone" design (subject to the structural design and construction standards), given the limited access and steep, narrow roads within the subdivision, in addition to creating a defensible space around the structure. Development is NOT prohibited due to the severe wildfire hazard rating, since the lot is within a BOCC approved subdivision and there is no alternative area on the property that is free of severe wildfire (pursuant to Section 3-80-070(A)(3)(a). Wildlife: Development of this lot will not create limited additional impacts on wildlife, given its location within an existing subdivision. Standard mitigation measures, including kenneling of dogs and bear proof waste storage, will be required. Geologic: The entire lot is encumbered by slopes in excess of 30%. Development on slopes in excess of 30% is prohibited pursuant to Section 3-80-050(C) of the Code. Development may only be approved on appeal to the BOCC following denial of the application if there is no hazard free area on the site. John Rold of Wright Water Engineers determined that the rockfall ha?ard potential was very low, and that slope stability was not an issue on this site and could be addressed with standard geoteclmical evaluation and design of cut slopes. RECOM31ENDATION: Staffrecormnends denial of the Bass Mountain Valley 1041 Hazard Review, subject to the attached Determination. Exhibits A. County Engineer Application and Site Plan provided separately Bud Eylar, 04:48 PM 6/6/2003, RE: bass mtn valley Page 1 of 1 From: "Bud Eylar" <bude~ci.aspen.co.us> To: "Suzanne Wolff' <suzannew~ci.aspen.co.us> Subject: RE: bass mtn valley Date: Fri, 6 Jun 2003 16:48:01 -0500 X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal X-MailScanner-Information: Please comact the ISP for more information X-MailScarmer: Found to be clean Suzanne, I have reviewed the application and have the following commems. * The applicant shall obtain an Access/Driveway Development Permit before the issuance of a Building permit * The applicam shall submit a Drainage and Erosion Control Plan for review and approval before the issuance of a Building Permit. The plan should incorporate stormwater Best Management Practices (BMP). * A Construction Management plan shall be prepared showing the locations of staging, material storage and employee and construction traffic parking. THERE SHALL BE NO PARKING, STAGING, EQUIPMENT OR MATERIAL STORAGE ON THE COUNTY ROADS (MT. LAUREL). THIS INCLUDES CONSTRUCTION DUMPSTERS AND PORTA-JOHNS. THIS CONDITION SHALL BE STRICTLY ENFORCED. Primed for Suzanne Wolff <suzannew~co.pitldn.co.us> 6/9/2003 DETERMINATION OF THE HEARING OFFICER OF THE COMMUNITY DEVELOPMENT DEPARTMENT OF PITKIN COUNTY, COLORADO, DENYING THE BASS MOUNTAIN VALLEY LLC 1041 HAZARD REVIEW Determination No. -2003 RECITALS 1. Bass Mountain Valley LLC ("Applicant") has applied to the Pitkin County HearingOfficer ("Hearing Officer") for 1041 Hazard Review to establish a building envelope within which to construct a single £amily residence. 2. The parcel is located on Mountain Laurel Drive, and is described as Lot 101, 3rd Filing, Mountain Valley Subdivision. 3. The property is zoned R-15A and contains 18,480 square feet. 4. Since lots within subdivisions approved by the Board of County Conunissioners ("BOCC") do not merge and the subdivision was approved in 1971 (Plat Book 4 at Page 186), tbe lot is exempt from growth management up to the maximum allowable floor area. 5. The Hearing Officer considered this application at a duly noticed public hearing on June 17, 2003, at which time evidence and testimony were presented with respect to this application. 6. The Hearing Officer finds that the entire lot is encumbered by slopes in excess of 30%, where developlnent is prohibited pursuant to Section 3-80-050(C) of the Land Use Code ("Code"). 7. The Hearing Officer further finds that the severe wildfire hazard on the lot can be mitigated. NOW THEREFORE BE IT RESOLVED by the Pitkin County Community Development Hearing Officer that he does hereby deny the Bass Mountain Valley 1041 Hazard Review. NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 17~' day of May, 2003. DENIED this 17th day of June, 2003. COMMUNITY DEVELOPMENT DEPARTMENT HEARING OFFICER OF PITKIN COUNTY, COLORADO By. ATTEST: James R. True, Hearing Officer Date Janis Taylor, Administrative Assistant Hearing Officer Determination No. -2003 Page 2 APPROVED AS TO FORM: APPROVED AS TO CONTENT: John Ely, Cindy Houben, County Attorney Community Development Director P042.03; P1~273717207101