HomeMy WebLinkAboutbocc.ord.035.2021 RECEPTION#: 680775, R: $0.00, D: $0.00, 09/2212021 at 02:43:17 PM, Pgs 1 of 12, Janice K.Vos Caudill, Pitkin County, CO
Covenant Execution Pending
EMERGENCY ORDINANCE OF THE BOARD OF COUNTY
COMMISSIONERS
OF PITKIN COUNTY, COLORADO AUTHORIZING ACCEPTANCE OF A
COVENANT FOR THE COUGAR CANYON OUTPARCEL IN COMPLIANCE
WITH 2008 RURAL AREA GMQS ALLOTMENT AND DETERMINATION OF
DEVELOPMENT OBLIGATIONS RELATED TO ACTIVITY ENVELOPE
APPROVAL
ORDINANCE NO. 035-2021
1. The Cougar Canyon Outparcel, the "Property," as it is more fully described in
Exhibit A, was conveyed to Pitkin County in 1998 in mitigation of the employee
housing impacts associated with the five-lot Cougar Canyon Subdivision.
Resolution 97-190 of the Board of County Commissioners (BOCC) authorized
the acceptance of the parcel. The BOCC has determined to sell the parcel with
the proceeds dedicated to the Pitkin County Housing Impact Fee Fund.
2. A Growth Management allotment was awarded for the parcel July 8, 2009,
BOCC Resolution 050-2009. The allocation provided for the ability to
construct 5,750 square feet of floor area for a single-family residence and
customary accessory structures on the Property subject to the recordation of a
covenant documenting the conditions of the allocation.
3. An activity envelope approval was re-established by Administrative Decision
# 32-2020. The BOCC fmds that the controlling document concerning the
activity envelope approval is Administrative Decision # 32-2020 and that all
other previous decisions and determinations are rescinded by the terms of that
Administrative Decision. The BOCC finds that to the extent that the
Administrative Approval differs from the terms of this Ordinance, the terms of
this Ordinance shall control.
4. The BOCC is in a contract to Buy and Sell the Property to HMR Properties,
LLC, as the assignee of Howard Rubinstein, dated January 9, 2021 and
subsequently amended. As a condition of the Growth Management Allocation,
Activity Envelope Approval and the contract to Buy and Sell, the Buyer will
record a covenant in a form substantially similar as attached to this Ordinance
as a condition of those development approvals and the contract of sale.
5. The BOCC finds that this form of covenant together with compliance with its
terms satisfies of all obligations related to the Growth Management Allocation
and the Activity Envelope Approval. The BOCC furthers fmds that it is
appropriate to modify the approved Activity Envelope Plan to extend and allow
for access between the Activity Envelope and Juniper Hill Road as well as to
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provide connectivity between the Activity Envelope and the existing well site.
Any other obligations or requirements relating to the allocation and approval are
rescinded.
NOW,THEREFORE,BE IT ORDAINED by the Board of County Commissioners of
Pitkin County, Colorado that:
1. The Board of County Commissioners approves and authorizes the acceptance
of the above-described Covenant to be executed by the Buyer of the parcel at
the time of closing of the above-described contract. The BOCC further
recognizes that Buyer's compliance with the terms of the covenant satisfies all
obligations associated with the 2008 GMQS Growth Management Allocation
approval and the previous Administrative Decision approving an Activity
Envelope for the Property.
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INTRODUCED, FIRST READ, AND ADOPTED ON AUGUST 11, 2021.
NOTICE OF CONFIRMATORY PUBLIC HEARING AND TITLE AND SHORT
SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY
ON THE 27TH DAY OF AUGUST, 2021.
NOTICE OF CONFIRMATORY PUBLIC HEARING AND THE FULL TEXT OF
THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE
POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com)
ON THE 27TH DAY OF AUGUST 2021.
CONFIRMED AT PUBLIC HEARING ON THE 8TH DAY OF SEPTEMBER, 2021.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE
ASPEN TIMES WEEKLY ON THE 16TH DAY OF SEPTEMBER 2021.
POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE (www.pitkincounty.com)
ON THE 9TH DAY OF SEPTEMBER 2021.
ATTEST: BOARD OF COUNTY
COMMISSIONERS
By Muria f By
Julia Ely Kelly McNicholas Kury, Chair
Deputy County Clerk
Date: Sep-22-2021
APPROVED AS TO FORM: MANAGER APPROVAL
5o�ti E17 ( S -att.
John Elv, County_attorney Phylis Ma ice for Jon Peacock, County
Manager
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EXHIBIT A
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COVENANT IN ASSOCIATION WITH THE
PITKIN COUNTY 2008 RURAL AREA RESIDENTIAL
GROWTH MANAGEMENT QUOTA SYSTEM
ALLOTMENT AND ACTIVITY ENVELOPE APPROVAL THE FOR COUGAR CANYON
OUTPARCEL
THIS COVENANT is made this day of , 2021, by , as
of HMR PROPERTIES, LLC ("Owner"), whose address is
RECITALS:
1. The Owner of the real property described as the Cougar Canyon Outparcel,Juniper Hill Drive,
Pitkin County, Colorado, and more completely described on the attached Exhibit A, containing
40.029 acres, Pitkin County parcel identification #2643-212-00-804 (the "Property"); desires to
burden the Property with this Covenant for the benefit of the Board of County Commissioners of Pitkin
County(BOCC)in perpetuity.
2. The Property was conveyed to Pitkin County in 1998 as employee housing mitigation
for the five-lot Cougar Canyon Subdivision. By Resolution No. 97-190, the BOCC accepted the
conveyance of the parcel as housing mitigation. Pitkin County had the option to develop deed-
restricted housing on the parcel or to sell the parcel for free-market residential development; the
County has chosen the latter option.
3. The BOCC received a growth management allotment on the Property for one free-market
single-family residence and associated structures.BOCC Resolution#050-2009 granted a GMQS
Allotment of 5,750 square feet of floor area for the Property. The allotment was conditioned upon
recordation of a covenant documenting the conditions of approval. This covenant satisfies that
requirement. Administrative Decision 32-2020 approved an activity envelope for the Property
with conditions and requirements on the development of the Property in compliance with the
activity envelope approval. Compliance with the terms of this covenant satisfies that approval.
4. The BOCC has found that Activity Envelope Plan previously approved as Exhibit 1 to this
Covenant shall be modified to extend and allow for access between the Activity Envelope and Juniper
Hill Road as well as for connectivity between the Activity Envelope and the existing well location and
that the Activity Envelope Plan is consistent with the applicable requirements of the Land Use Code, as
follows:
A. The activity envelope is primarily located on slopes of less than 30%. There are two small areas within
the envelope that contain slopes in excess of 30%; these slopes are natural anomalies in an otherwise
continuous slope, and qualify with the exception for minor slope anomalies, pursuant to Sec. 7-20-
20(c)(3).
B. The wildfire hazard is rated as severe, and can be mitigated pursuant to the provisions of Sec. 7-20-
60(c).
C. The activity envelope is within elk and mule deer winter range; impacts on wildlife can be mitigated,
pursuant to Sec. 7-20-70.
D. The activity envelope is set back 150'from the intermittent stream that flows from west to east through
the property, which exceeds the 100' setback required by the Code.
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E. The proposed driveway and activity envelopes are impacted by Mancos Shale bedrock and associated
soils;the hazard can be mitigated,pursuant to Sec. 7-20-50(f).
NOW THEREFORE,the Owner covenants and restricts the development of the Property in
compliance with the terms of this Covenant. The following development conditions and requirements
and obligations are appurtenant to the Property and constitutes a burden that runs with the land and
is binding on all successors in interest:
1. The final maximum floor area is limited to 5,750 square feet, pursuant to the GMQS
allotment granted by BOCC Resolution No. 050-2009, and cannot be exceeded with Transferable
Development Rights(TDRs)or an additional Growth Management Quota System(GMQS)allotment.
2. Prior to submission of the Site Plan Review application,the Applicant shall be required
to submit for approval by the County Attorney and Board of County Commissioners an Activity
Envelope Plan in accordance with Land Use Code Section 2-30-20(g)and Application Manual Section
2.1.1.
3. Prior to submission of any building or other development permit applications, the
Applicant shall he required to submit for approval an application for Site Plan Review, pursuant to
Secs. 2-30-20 and 7- 10-50 of the Code. The Site Plan Review application shall address the following,
in addition to the other requirements specified above:
A. Demonstrate compliance with the standards in Sec. 7-20-120.d for development within
the Scenic View Protection Area and the rural character guidelines for building location in Sec. 7-20-
120.e of the Code.
B. Demonstrate that the site can accommodate an on-site wastewater treatment system
(OWTS)that complies with the then current OWTS regulations.
C. Demonstrate that a driveway can be constructed in compliance with the County's
driveway standards and the standards of the Aspen Fire Protection District.
F. Demonstrate how vegetation manipulation for wildfire hazard mitigation will be
reconciled with the need to maintain/improve wildlife habitat outside of the envelope.
G. Submit a plan for review and approval by the Brush Creek Metropolitan District for
payment of a pro-rated share to the District for road maintenance and snow removal.
H. Submit a geotechnical report prepared by a qualified professional geologist or an
engineer that addresses appropriate design and site grading for development on mancos shale bedrock
and associated soils and in proximity to faults.
I. Demonstrate that the site plan is acceptable to the Colorado Parks and Wildlife(CPW).
4. At building permit for the residence, the permit applicant shall:
A. Obtain an access permit for the driveway, which shall be approved by the Planning
Engineer.
B. Obtain a fireplace/woodstove permit from the Community Development Department,
if necessary.
C. The Applicant shall supply adequate drainage for all low points. If the proposed work
disturbs more than 1,500 square feet,the Applicant shall submit engineering documents for stormwater
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detention facilities designed by a professional engineer licensed in the State of Colorado,
demonstrating that historical flow patterns and runoff amounts will be maintained. If the development
disturbs one acre or more, a Colorado Department of Public Health and Environment permit for
stormwater discharges associated with construction activities shall be applied for and obtained prior
to issuance of a permit.
D. Pay the applicable road and employee housing impact fees.
E. Obtain an on-site wastewater disposal system permit from the Environmental Health
and Natural Resources Department.
F. The Applicant shall comply with all conditions of the Pitkin County Construction
Management Plan Requirements Manual. A construction management inspection will be required
prior to the first building inspection.
G. Submit a detailed revegetation plan for disturbed areas with appropriate seed mixes.
H. Submit a tree mitigation plan if any trees with larger than 6" DBH are to be removed.
I. Obtain a Right-of-Way permit from the County for any work within the Juniper Hill
Road right-of- way. The Brush Creek Metro District shall be notified when a permit is submitted.
5. No structural development in excess of 30" above or below natural grade shall occur
within the setbacks of the lot,with the exception of driveways and associated retaining walls of up to
6' above or below natural grade and fencing. Landscaping in the form of berms shall not exceed four
feet from the most restrictive grade. Any development located within setbacks mandated by County
zoning regulations that does not comply with these restrictions shall require a variance from the Board
of Adjustment. Approval of an activity envelope within such setbacks does not assure approval of a
variance.
6. Floor area is limited to a maximum of5,750 square feet, of which at least 1,725 square
feet shall be sub- grade as defined in Sec. 5-20-?0(g)(1)of the Code.
7. The Applicant shall comply with the following standards for Development in a Medium
to Severe Wildfire Hazard Area:
A. Defensible Space: The area around all buildings/structures, limited by property
boundaries that may limit a property owner's ability to comply with this section, shall incorporate
landscaping with wildfire defensible space considerations as follows (note: actual vegetation
manipulation to meet these conditions may not be necessary where the natural vegetation patterns have
already fulfilled these conditions).
1) Within 20'of all structures or the furthest projection of combustible construction,there
shall be primarily noncombustible hardscape surfaces. Woody vegetation shall not be planted within
this area. Trees or shrubs may be planted within this area, if the 20' area is extended outward from the
farthest growth expected from mature trees and shrubs. Crowns of trees or shrubs within this area shall
be at least 10' from any portion of the structure. All branches from trees and shrubs within this area
shall be pruned to a height of 10' or one half the height of the tree or shrub, whichever is less. Areas
under these trees shall be hardscape or irrigated with no tall grass or woody plants beneath the tree
canopy.
2) Beyond 20' and within 60' of all structures, trees/shrubs shall be separated as
individuals or small clusters with a minimum of 20'between the tree canopies. All branches from trees
and shrubs within this area shall be pruned to a height of 10'or one half the height of the tree or shrub,
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whichever is less.No brush or shrubs which when mature will be tall enough to act as ladder fuel shall
be planted or maintained around the trees. Clusters of bushes or shrubs shall be separated from each
other and from those beyond the 60'area by a distance of 2\lz times the height of the mature vegetation.
The diameter of a cluster shall be limited to 2 Yz times the height of the mature vegetation.
3) All branches that extend over the roof eaves shall be trimmed and all branches within
15' of chimneys shall be removed.
4) All deadfall within 100' of all structures shall be removed.
5) Flammable mulches (wood chips)are not allowed within 2' of structures.
6) Aspen trees are allowed, but not within 10' of structures.
7) No shrubs or conifers are allowed within 15' of the driveway. Aspen are permitted
within 10' of the driveway, but must be pruned to 6' above the ground.
8) Low vegetation (grasses, forbs and low shrubs) shall be kept mowed to less than 6"
within 10' of either side of the driveway.
9) The property owner shall be responsible for the continued maintenance of the
defensible space vegetation requirements.
B. Roofmg Materials: Class A covering or Class A assembly as defined by the currently
adopted Building Code. No wood shakes or shingles. All other adopted Building Code compliant
methods and materials permitted. Roofs with less than a 3:12 pitch are not permitted unless they
comply NA ith the following:
1)All roof coverings shall be constructed of non-combustible materials and installed on a Class
A roof assembly.
2) All roof coverings shall have a surface that shall facilitate the natural process of clearing
roof debris.
3) Protrusions above the roofline, such as parapets, shall be prohibited.
4) Roofs shall be installed as required by the adopted Building Code and shall have a
minimum pitch of 1:48.
5) All roof designs, coverings, or equivalent assemblies shall be specifically approved by
the Fire Marshal prior to submittal of a building permit application.
C. Roof Venting:
1) Soffit venting shall be located in the outer 1/3rd portion of the overhang.
2) Attic, soffit and other roof venting shall be of non-corrosive metal mesh with maximum W'
openings.
D. Projections at the Roofline, including Soffits, Rafters, Porch or Deck Roofs, Fascias,
or Other:
1) Sheath with non-combustible materials, or
2) Combustible material underlain with 5/8" Type X gypboard or equal, or
3) Minimum 4x6 rafters with 2x T&G decking.
E. Decks, Decking, Cantilevered Floors, or Other Projections below the Roofline:
Minimum 6x6 posts,6x10 beams,3x8 joists,3x decking,and 2x railing,or equivalent log construction.
F. Maintenance and Miscellaneous Requirements
1) Roofs and gutters shall be kept clear of debris.
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2) Any outbuilding shall adhere to the same wildfire requirements.
3) Yards shall be kept clear of all litter, slash and flammable debris.
4) All flammable materials shall be stored indoors or on a parallel contour a minimum of
fifteen(15)feet away from any structure.
5) Weeds and grasses within the ten (I 0) foot perimeter shall be maintained to a height
not more than six(6)inches.
6) Firewood/wood piles shall be kept indoors or stacked on a parallel contour a minimum
of fifteen (15)feet away from the structure.
7) Swimming pools and ponds shall be accessible by the local fire district.
8) Fences shall be kept clear of brush and debris.
9) Wood fences shall not connect to other structures.
10) Fuel tanks shall be installed underground with an approved container.
11) Propane tanks shall be buried, if possible, or installed according to NFPA 58 standards
and on a contour away from the structure with standard defensible space vegetation mitigation around
any aboveground tank. Any wood enclosure around the tank shall be constructed with materials
approved for two (2)hour fire-resistive construction on the exterior side of the walls.
12) Each structure shall have a minimum of one ten(10)pound ABC fire extinguisher.
13) Addresses shall be clearly marked with two (2) inch non-combustible letters and shall
be visible at the primary point of access from the public or common access road and installed on a
non-combustible post.
14) Utilities shall be extended underground.
8. The Applicant shall comply with the applicable codes and requirements of the Aspen
Fire Protection District, including but not limited to access, turning around of fire apparatus,
installation of an approved fire sprinkler system (if the structure exceeds 5,000 square feet) and
provision of water supply for fire fighting.
9. The Applicant shall comply with the following measures to mitigate impacts to
wildlife:
A. Native vegetation shall be maintained outside of the activity envelope.
B. Dogs shall be kept indoors or, when outdoors, kenneled within 50' of the residence or
leashed under human supervision when outside of the kennel.
C. Trash/garbage shall be kept in an approved bear resistant container or enclosure,
pursuant to the County's Wildlife Protection Ordinance.
D. Fencing shall be limited to the Activity Envelope and shall comply with the following,
except for fencing immediately adjacent to the buildings to contain pets or livestock:
1)Wood fencing shall employ three rails or less,be the round or split rail type,shall not exceed
54 inches in height above ground level and 12 inches in width(top view), and shall have at
least 18 inches between the lower 2 rails.
2) Wire fencing must be 3 strands or less. The top wire should be a 12.5 gauge twisted
barbless type at a maximum height of 42 inches. The middle strands (which may be barbed)should be
located a minimum 12 inches apart and from the top wire. The bottom strand should be 16 inches from
the ground.
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3) Mesh or woven wire fences are prohibited outside of the activity envelope.
E. Avoid fruit-bearing trees and shrubs in any landscaping.
F. Construction workers shall be prohibited from bringing dogs on-site during
construction.
G. Livestock/horse grazing shall be prohibited.
H. Bird feeders, including hummingbird feeders, shall be hung away from any deck or
window, and be at least IO feet from the ground suspended between 2 trees or posts. All seed feeders
shall include a catchment pan to catch discarded seed.
10. No development including grading, excavation, fill placement, berming, landscaping,
vegetation removal or disturbance, well or septic system shall occur outside of the approved activity
envelope, except as necessary for weed management or to comply with the wildfire mitigation
measures described above.
11. Prior to commencement of any earthmoving or other construction activity, the
Applicant shall stake the corners of the activity envelope and install construction fencing around the
construction site within the perimeter of the activity envelope. The fencing shall remain in place until
issuance of a Certificate of Occupancy.
12. All areas disturbed by construction shall be re-vegetated with native shrubs and grasses
within one growing season of the project's completion.
13. Covenant running with the land: binding effect. The provisions of this covenant shall
constitute a burden that runs with the title to the Property for the benefit of the Board of County
Commissioners of Pitkin County, its successors and assigns,and shall be deemed an appurtenance to
the title to the Property.
14. Permitted uses and activities. As owner of the Property,the Owner retains the right to
perform any act consistent with the Land Use Code to the extent such act is not prohibited or limited by
the requirements of this restrictive covenant. These ownership rights include,but are not limited to,the
right to exclude any member of the public trespassing on the Property and the right to sell,lease, or
otherwise transfer the Property to anyone Grantor chooses.
15. Enforcement and monitoring. This covenant and its terms and representations shall be
fully enforceable by the BOCC, its successors, assigns and agents in any action at law or equity or both,
to secure compliance, including but not limited to, seeking injunctive relief and/or specific performance
requiring the Owner,its successors or assigns to cease and desist all activity in violation of the terms of
this restrictive covenant and to return the Property to its condition prior to any violation. Moreover,the
BOCC and its successors,assigns and agents shall be permitted access to, and to enter upon,the
Property at reasonable times with advanced notice solely for the purpose of monitoring, inspection, and
if necessary,remediation in order to enforce and assure compliance with the terms and conditions of
this restrictive covenant.
16. Costs and liabilities. Owner retains all responsibilities and shall bear all costs and
liabilities of any kind related to ownership,operation, upkeep,taxes and maintenance of the Property,
including but not limited to, costs associated with compliance with this covenant. The BOCC's
acceptance of this covenant shall in no way be construed as an assumption of any duties or liabilities
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associated with the Property and Owner acknowledges that by this covenant, Owner continues to retain
responsibility for any and all duties and liabilities associated with the Property.
17. Subordination. At the time of the conveyance of this covenant,the Owner represents
that the Property is not subject to any mortgage, deed of trust,or judgment lien, or any other instrument
that might result in a foreclosure action that could affect the viability of this restrictive covenant.
18. Incorporation of the Pitkin County Land Use Code. The Land Use Code, as may be
amended from time to time, and any terms or definitions contained therein, are hereby incorporated by
this reference in their entirety.
19. Modification. The terms of this covenant can only be modified by an amended covenant
executed by both Owner and BOCC and recorded in the records of the Clerk and Recorder for Pitkin
County, Colorado.
20. Severability. If any of the provisions of this Covenant are determined to be invalid, it
shall not affect the remaining provisions hereof.
21. Venue and jurisdiction. Owner and BOCC consent to venue and jurisdiction in the
District Court for Pitkin County, Colorado for all matters concerning the interpretation and enforcement
of this covenant.
22. Attorneys fees and costs. In the event of any action or suit between the Owner and
BOCC or their successors and assigns to enforce any of the agreements, covenants or restrictions
contained herein,the substantially prevailing party in any such action or suit,whether by final judgment
or out of court settlement, shall recover from the other party all costs and expenses of such action or suit
including reasonable attorneys fees.
IN WITNESS WHEREOF, Owner has executed this covenant as of the date and year first
written above.
Owner
By: [Name] [Title]
State of Colorado )
)ss.
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County of Pitkin )
The foregoing Covenant was acknowledged before me this day of 20 by
Witness my hand and official seal
My commission expires on:
Notary Public