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Home My WebLink Aboutbocc.res.047.2022RECEPTION#: 688686, R: $0.00, D: $0.00, 06/29/2022 at 09:50:14 AM, Pgs 1 of 5, Ingrid K. Grueter, Pitkin County, CO RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, DENYING AN APPEAL BY CONUNDRUM CREEK LLC OF THE COMMUNITY DEVELOPMENT DIRECTOR'S DETERMINATION OF AN EMPLOYEE HOUSING IMPACT FEE Resolution No. 047- 2022 RECITALS 1. Pursuant to Section 2.8.4 (Actions) of the Pitkin County Home Rule Charter ("HRC"), all matters not required to be acted upon by ordinance or formal resolution may be acted upon by informal resolution. 2. Conundrum Creek LLC ("Appellant") appealed the determination of the Community Development Director of an Employee Housing Impact Fee (EHIF) imposed as the result of the sale of the property from a local resident to a non -local resident, to the Board of County Commissioners of Pitkin County, Colorado ("BOCC"). 3. The Appellant is the former owner of property located at 303 Conundrum Creek Road, which is more specifically described in Exhibit A. The current owner of the property (as of April 26, 2022) is CID Holdings LLC 4. The parcel contains 3.11 acres and is non -conforming in size in the AR-10 zone district. 5. In 2006 the Appellant obtained a building permit for an addition to the existing residence at 303 Conundrum Creek Road. The Land Use Code (Code) in effect at the time (Article 11 adopted by Ordinance No 23-2005) required payment of an Employee Housing Impact Fee for residential development over 5,750 square feet. Sec. 11-300 stated, "The fee collected for residential construction shall reflect mitigation for second -home use unless a covenant is recorded on the property restricting it to Pitkin County resident occupancy." Sec. 11-800- 010.B stated, "No employee housing impact fee shall be charged for remodel construction which does not increase the size of the residential structure. No exemption shall be recognized for expansion of an existing structure." The Appellant does not dispute whether or not the fee, as calculated in 2006, is correct. 6. The Appellant recorded a Deed Restriction Agreement for the Occupancy and Resale of 303 Conundrum Creek Road recorded in the real property records of the Pitkin County Clerk and Recorders Office at Reception No. 533010 (the "Deed Restriction"), and paid the EHIF for a local resident as calculated based on the Code in effect at the time - $5,593. 7. Section 4. b) of the Deed Restriction provides, "the Owner and Non -Qualified Transferee(s) shall be obligated as a precondition to the sale to a Non -Qualified Transferee to pay the County's EHMF calculated at the rate of the County's affordable housing mitigation fee less RECEPTION#: 688686, 06/29/2022 at 09:50:14 AM, Pgs 2 of 5, Ingrid K. Grueter, Pitkin County, CO Resolution No. 047- 2022 Page 2 the amount $5,593.00 paid by the Owner as his, her or their EHMF at the time of this Agreement." 8. Section 6. b) of the Deed Restriction provides, "the Owner and Non -Qualified Transferee(s), of any, shall be obligated to pay the deferred portion of the County's EHMF calculated at the rate of the County's EHMF less the amount $5,593.00 paid by the Owner as his, her or their EHMF at the time of this Agreement." 9. The second Recital in the Deed Restriction provides, "Owner, in order to pay an Employee Housing Mitigation Fee ("EHMF") pursuant to Ordinance No. 023-2005, agrees to restrict the acquisition or transfer of the Property to `Qualified Buyers,' as that term is defined in this agreement or to pay the EHMF which would otherwise be applicable to the Property if the owned did not qualify as a Qualified Buyer calculated at the rate applied to Non -Qualified Transferee(s) as that term is defined by this Agreement at the time of transfer." 10. While under contract to sell the property earlier this year to a Non -Qualified Transferee, the Appellant requested a Determination on the applicable EHIF. The Determination by the Community Development Director was issued on April 15, 2022. The Determination specified that the amount of the fee due is $347,243.78 less the amount credited for the prior payment made adjusted for CPI, $7,836.40, for a total fee due of $339,407.38. This amount was calculated at the rate ofthe County's affordable housing mitigation fee as provided in Pitkin County Land Use Code, Section 8-30, et seq. 11. The Appellant submitted a notice of appeal within 15 working days of the date of the decision, as required by Sec. 2-20-180 ofthe Land Use Code ("Code"). On appeal, the Appellant argued that the amount due upon transfer to a Non -Qualified Transferee — the Appellant did not dispute that the transfer of the property was to a Non -Qualified Transferee — should be $31,766.28. 12. The BOCC heard this appeal at a regular meeting on June 8, 2022, at which time arguments were presented with respect to the appeal and the BOCC reviewed the record on appeal. 13. Sec. 2-20-180(g) ofthe Code provides that the appeal body [BOCCI "shall only reverse, modify, or remand a decision on appeal if it finds that that there has been a clear and demonstrable error, abuse of discretion, or denial of procedural due process in the application of the facts in the record to the standards of this Land Use Code." NOW THEREFORE BE IT RESOLVED by the Pitkin County Board of County Commissioners that in consideration ofthe arguments heard at the June 8, 2022 Appeal hearing and the record on appeal, the BOCC finds that the Community Development Director did not err in her determination of the applicable EHIF, based on the provisions of Land Use Code, specifically Secs. 8-30-10, 8-30-30 and 8-30-80(b)(1) and the terms ofthe Deed Restriction, the plain reading of which unambiguously requires the EHMF to be calculated at the rate of the County's EHMF at the time the subject property is transferred to a Non -Qualified Transferee and, therefore, denies the appeal brought by Conundrum Creek LLC of the determination of the RECEPTION#: 688686, 06/29/2022 at 09:50:14 AM, Pgs 3 of 5, Ingrid K. Grueter, Pitkin County, CO Resolution No. 047- 2022 Page 3 Community Development Director of an Employee Housing Impact Fee (EHIF). The amount of the fee due and owing is $339,407.38 BE IT FURTHER RESOLVED by the Pitkin County Board of County Commissioners that it directs the Pitkin County Attorney's Office to enforce the terms of the Deed Restriction. RECEPTION#: 688686, 06/29/2022 at 09:50:14 AM, Pgs 4 of 5, Ingrid K. Grueter, Pitkin County, CO Resolution No. 047- 2022 Page 4 ADOPTED ON THE 22ND DAY OFJUNE, 2022. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO ,)uLia6,1 Pall; (,Lpt,r Julia Ely Patti Clapper, Chair Deputy County Clerk Date: Jun-24-2022 APPROVED AS TO FORM: APPROVED AS TO CONTENT: John Ely, County Attorney PID 291102100015 Case #PLAN.0838.2022 Cindy Houben Cindy Houben, Community Development Director RECEPTION#: 688686, 06/29/2022 at 09:50:14 AM, Pgs 5 of 5, Ingrid K. Grueter, Pitkin County, CO Resolution No. 047- 2022 Page 5 ATTACHMENT A PARCEL A: A TRACT OF LAND SITUATED WITHIN THE BOUNDARIES OF H.E.S. #112, TOWNSHIPS 10 AND 11 SOUTH, RANGE 85 WEST OF THE SIXTH PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT CORNER NUMBER 8 OF SAID H.E.S. #112; THENCE SOUTH 46 DEGREES 53' WEST 204.36 FEET ALONG THE LINE BETWEEN CORNER NUMBERS 7 AND 8; THENCE EAST 606.68 FEET; THENCE NORTH 39 DEGREES 15' EAST 72 FEET; THENCE NORTH 52 DEGREES 28' EAST 97.83 FEET; THENCE NORTH 86 DEGREES 52' WEST 18.74 FEET' THENCE NORTH 71 DEGREES 57' WEST 169.79 FEET; THENCE NORTH 36 DEGREES 36' EAST 84.79 FEET; THENCE NORTH 1 DEGREE 26' EAST 35.34; THENCE WEST 400.72 FEET TO THE LINE BETWEEN CORNER NUMBERS 8 AND 9; THENCE SOUTH 21 DEGREES 11 WEST 141.63 FEET TO CORNER NUMBER 8, THE POINT OF BEGINNING. COUNTY OF PITKIN, STATE OF COLORADO. PARCEL B: THOSE EASEMENT RIGHTS AS CREATED BY INSTRUMENT RECORDED JUNE 1, 1990 IN BOOK 621 AT PAGE 802. COUNTY OF PITKIN, STATE OF COLORADO