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Home My WebLink Aboutbocc.res.149.1999RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO DETERMINATION ON WILKINSON TAKING HEARING FINDING NO TAKING RESOLUTION #99- 1Y9 9 RECITALS The Board of County Commissioners of Pitkin County, Colorado makes the following findings: 1. George M. "Wilk" Wilkinson and Fidelity Trust Building, Inc.("Applicant") are the owners of land in Pitkin County, Colorado, consisting of various patented mining claims on Smuggler Mountain (the "subject parcel"), as more fully described in the documents, submitted by Applicant in support of Applicant's request for a takings determination. 2. On April 28 , 1999, by Resolution 99-61, the Board of County Commissioners ("BOCC") upheld that portion of the decision of the County Engineer denying an access permit for improvements to Smuggler Mountain Road on the basis that Smuggler Mountain Road is a county road. The Applicant had requested the appeal of the Engineer's decision under section 6.05 of the 1997 Pitkin County Road Management and Maintenance Plan. 3. On May 11, 1999, the Applicant applied to the BOCC for a takings determination hearing pursuant to section 4-150 of the Pitkin County Land Use Code. The Applicant contended that the Board's decision on the appeal, as reflected in Resolution 99-61, constituted a taking of private property without just compensation. 4. On August 17, 1999, at a public meeting, the BOCC considered the evidence, testimony, and argument presented by the County Attorney's Office and the Applicant on the issue of whether the decision of the Board of County Commissioners affirming the County Engineer's finding that Smuggler Mountain Road is a County road constituted a taking of private property without just compensation, according to the standards set out in Pitkin County Land Use Code Section 3-290. 5. Section 3-290 provides: 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 1 Illill Hill IIIIII illl ills Iiillil Iilill III IIIII Ilil Ilil 436176 10/01/1999 03 38P RESOLUTI DAVIS SILVI 1 of 4 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO 0019 Jf0 N 0 MIMI a 0 0 z Min - JM won. W m —gym EMI O.m _riz -rim —mm 1=111m = - 19 1="0a 19 r100 —r- �e N Resolution #99-Mf Page 2 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 notwithstanding the challenged determination and shall give due consideration to the reasonable investment -backed expectations of the landowner. 6. Resolution 99-61 represents the Board's opinion that Smuggler Mountain Road is county road, and that the county has an easement for the road the width of the existing road, plus an amount not to exceed fifteen feet on either side of the traveled portion of the road for drainage and maintenance. At the hearing, the Board was advised that the center line and width survey directed by Resolution 99-61 was not yet complete. 7 Applicant provided testimony at the hearing that the road originally was twelve feet wide, and that Mr. Wilkinson widened the road to its present width pursuant to permits issued by the County. Mr. Wilkinson admitted that a portion of the widening occurred in connection with a permit issued under the assumption that the road was a county road, to be improved in connection with approved development of the Joplin Lode. Mr. Wilkinson could not recall whether the permit for road improvements beyond the Joplin was issued under the assumption that the road was a county road. The permits themselves were not offered in evidence at the takings hearing. 8. The Applicant has not been denied all reasonable use and economic return of his property in connection with the determination in Resolution 99-61 that Smuggler Mountain Road is a county read and potentially beneficial uses of the property remain: a. b. c. The Applicant has already received an economic return on a portion of the subject property by obtaining a development approval for the Joplin and selling it, with Smuggler Mountain Road as a county road r_ oviding access. Other potentially beneficial uses of the subject property remain. The Applicant may have the ability to develop the remainder of his property. The Applicant does not presently have a complete land use application before the county for consideration, and has failed to present any evidence that there is no beneficial use that could be made of the subject property. Applicant presented testimony that his property is worth millions of dollars, even with a public road. Resolution 99-61 recognizes the status of Smuggler Mountain Road as a public count •oad, in existence since the 1890's. The recognition of this status is not a king of any property rights of Applicant. 9. Applicant repeated many of his arguments made in the appeal of the Engineer's determination resulting in Resolution No. 99-61. As stated in the letter presented by Applicant from his attorney, Don Ostrander, to Deborah Resolution #99- / ` il Page 3 Quinn, dated August 13, 1999, Resolution No. 99-61 "does not in and of itself make any road public." Either the County or the Applicant may pursue a quiet title and/or declaratory judgment action to have a court make a final determination of this issue. Until then, the County will continue to consider the road a county, public road. 10. Contrary to Mr. Wilkinson's arguments here and in the appeal proceedings resulting in Resolution No. 99-61, the Order on the Motion in Limine in Civil Action 91 CV 81 did not result in a final judgment forever determining the status of Smuggler Mountain Road. Instead, the Court made it clear at the hearing on the Motion for Continuance that dismissal of the case would not preclude either party from litigating its rights and obligations in a future case. See page 38 of Exhibit A to Resolution No. 99-61, and the record in that proceeding, pages 43- 51. NOW THEREFORE, be it resolved by the Board of County Commissioners of Pitkin County, State of Colorado, that Resolution No. 99-61 does not constitute a taking pursuant to sections 3-290 and 4-150 of the Pitkin County Land Use Code. 111111 Hill IIIIII1111 MI Illilii Iillll III 1111111111111 436178 10/01/1999 03 38P RESOLUTI DAVIS SILVI 3 of 4 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO Resolution #99- / VI Page 4 PUBLIC MEETING HELD AND TAKINGS DETERMINATION RENDERED ON AUGUST 25,1999. ATTEST: APPROVED AS TO FORM: /2014 c;I) Deborah Quinn, BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO uzanne K6ikhan, Assistant County Attorney " County Manager Ic\d\wilk\plead\taking hearing reso I IIIIII IIIII IIIIII I'll IIII 1111111 111111 III IIIII IT I'll 436176 10/01/1999 03 38P RESOLUTI DAVIS SILVI 4 of 4 R 0.00 D 0.00 N 0.00 PITKIN COUNTY CO