HomeMy WebLinkAbout20051221taylorDATE:
TO:
THROUGH:
FROM:
AGENDA ITEM SUMMARY
December 21, 2005
Board of County Commissioners
Cindy Houben, Community Developlnent Director
Lance Clark~, {~ssistant Director Community Development
Bud Eylar, County Engiueer
Appeal of an Eartlunoving Permit Issued to Tom Lewis for Lot 2 of the Little Cloud
Subdivision
REQUEST: Terry Taylor, owner of Lot 1, Little Cloud subdivision, has appealed the staff's issuance of an
earthmoving permit for Lot 2 of the Little Cloud Subdivision.
APPELLANT: Terry Taylor, Lot 1, Little Cloud
REPRESENTATIVE: Matthew Ferguson, Garfield & Hecht, P.C.
PERMITTEE: Thomas Lewis
REPRESENTATIVE:
BACKGROUND: On September 23, 2005, Lance Clarke, Assistant Director of Community Development,
and Bud Eylar, County Engineer, approved with conditions an earttnnoving permit for Lot 2 of the Little
Cloud Subdivision. Garfield & Hecht, on behalfofTerryTaylor, owner of Lot 1, Little Cloud appealed this
permit issuance as an "other affected party" in accordance with Land Use Code Section 3-300.
The permit (Attachment 1) as described by the Applicant's Engineer, Sclnnueser Gordon Meyer, is to use
Lot 2 as a staging area for materials during construction of the previously permitted Little Cloud Driveway.
The operation is limited to the Lot 2 building envelope. Activities are to include storage of excess materials,
screening of materials, storage of equipment. A drainage and erosion control plan was snbmitted, and the
Applicant agrees to revegetate the site to County stm~dards. The Applicant has indicated use of the site will
reduce truck traffic on the driveway by over 150 two-way trips.
The Appellant indicated his concerns about potential leaching of toxic materials from mine tailings on Lot 2
as a result of the proposed activities (see permit). Staff requested a response from the Applicant about those
concerns prior to issuing the permit. The Applicant responded on August 18, 2005, with an August 15,
2005, letter fi'om Beach Environmental LLC clarifying his concerns about the potential of leaching (see
permit); that--~leacbing may occur under future irrigation.
Staff issued the permit on September 23, 2005, with the additional conditious that dust control be provided
and irrigation of the site not be allowed.
RECOMMENDATION: Staff recommends that the BOCC adopt a motion denying the appeal of the
permit issuance aud directing staffto prepare such Resolution for the Chair's signature.
ATTACHMENTS: 1) EarthmovingPermit
2) Taylor Appeal Letter.
3) Taylor Appeal
lancec/appeal lot 2 little cloud memo 1 .doc
:' ' : :i!"ii~[i(i;~: ,' i' EARTH MOVING PERMIT APPLICATION
! 970,920.5090 Fax 970-920,5439Check # ,~ 9~ ~'..~ 1~C~ /
7 days required for approval ~csss from t~e ~mpfete info.etlon received. Pe~it AdminisVatiVe Fee (no ~funds) $
WORK STARED WITNOUTA PERMIT ~LL BE CHARGED DOUBL~ FEES' '
V~ID PERMIT MUST BE KEPT ON SITE AT ALL TIMES
~ POUNDA~ON PERMITS) ~n. ~r m~ ~N 60 CUBIC YARDS OF SOIL. (EXCEPTION
A MINIMUM OF ~REE (3)COPIES OF ~y ~D ALL ]NFQRMA~ON REQUIRED MUST ACCOMP~y ~lS APPLICATION.
iF ~E JOB DESCRIBED BELOW REQUIRES TH~ MOVEME~ OF MORE ~AN ~OO CUBIC YARDS, THE ~CHNICAL INFORMA~ON AND
REQUIREMENTS SHAgL BE PREPPED AND CERTIFIED BY A PROFESSIONAL ENGINEER, REGISTERED IN THE STATE Off
Thomas~. LeWis, 201 West Cooper, Aspen CO 81611
Thomas J~. Lewis
2200 South Dixie Highway, Suite 702B, Coconut Grove FL 33133
Little Cloud Subdivision
Lot 2
Little Cloud Subdivision
Rock & Soil
-~PPLIC~TION WILL NOT BE REVIEWED UNLESS THIS PORTION IS COMPLETE
Total Cubic Yards (Cut & F1~1}:~4-70
. Max ~p~: O'
To~I Cubic Ya~s (Cut &
MaxLeng~: 90'
Access Driveway for lots 3 & 4
12a, Is any portion of ~e dev~opment proposal now c~mpteta?
Jn 1991, the access driveway and utilities Were taken to Lo~ 2.
~ 3. WIll the project requfr'e the disturbance of tr~e 100 year 11cod plain? I~ YES ~'~NO
14, Will the project disturb or result in the removal of any vegetation? [] YES [] ~D, eS, a ray.elation plan and ~:.fl~ is required. Ea~m¢~tng
- p j turb or result in the ~emovaJ of any we~, d Or riparian ~e~etatfon? _ ~ Y~ ~ N0
Site J~n ~p and zoning of ~e prop~ and any deVelopment approvals ~s~atad w~ ~e pmpe~,
afl p~posed and ~i=~ng St~u~ on ~e s~, and I~a~'~n a~ almaden of s~m roads, water supply syste~, sanJtaw [~i0ties ~d soil
3. Rev~e~fion plan.
4. The appli~nt may ~ required to sub.it o~er necesaaW info.etlon In orde¢ to determine of ~propdate design e~d p~o~=n~ ~da~s have been
5. A ~e GrePng Plan de.ling ~e s~pe =fworb
SCHMUESPR GORDON M. EYER
/ I July 13,2005 t :
J j Mr. Lance Clark
Pitk n-County CommunityDevelopment
1_3_0_S_. _Galena ...............
j Aspe;n, ?O 816!1
Re:__~Z__Little.C Iou d S ubdivi'~io~
:___~ ~ .._.. , ; · . ,
L_I Dear La~ .....
Enclose8 is an Ear[hmoving Permit Application for the Little Cloud Subdivision. The
~ ......~----'-Perm~t'- :~s,' a request' to allow the' use of Lot 2 of the Little Cloud Subdivision to be used as
..... a stagingarea for materials during construction of the Little Cloud Driveway.
~1 ; The use cf Lot 2 will provide benefit to the community by allowing an on-site location to
· -- gcC-e-pt some Of the on-site excess material to be used to create a staging pad. The
- [---[--I"' staging pad will be used to screen on-site material for use on the backfill of the MSE
walls. This operation is not mechanical. The operation will reduce the amount of off-site
- i .....-~ ....ekcess material as well as reducing the amount of imported aggregate materials.
The operation will be fimited to the area of the existing Lot 2 building envelope. All
disturbed areas will be protected by erosion control dudng and following construction.
Following cc nstruction, the site will be revegetated per County standards.
....... The result of the approval of this permit will decrease truck traffic be~een this site and
.......... the Pitkin County Landfill by over 150 two-way trips. The reduction in truck traffic will
- also reduce energy, no~se and dust in all areas below this lot.
Please do not hesitate to call with any questions. Thank you in advance for your prompt
attention to this permit.
Sincerely,
SCHMUESER GORDON MEYER, INC.
Dan Cokley, P E.~
CC: Thomas Lewis
Cur[is R. Sanders
1:\1988\8049\C\Corresp\8049c_ear~hmoving permit.doc
RECEIVED
JUL 1 2005
PitkJn County Building Dept
. UT = 47O C¥ k% % ~,,"~/.<.~. ',.~'>,.
,
DISTURBED AREA TO BE REVEGETATED PER PITKIN COUNTY STANDARDS.
~8 W, 6th Street, Suite 200
~,,.oo~ s~,~,, c~o,~o ~o~ E~THMOVING PERMIT
SCHMUESER ] GO~DON I M~ER Aspen, Colorado ('970) ~25-6727
OS,,,1~/..O05 1]:2~ 97o 945
LPI HOLDZNGS
LBWIS
pROPF_,RTY INVESTORS,
'/50 Iq.W~. 7'r r~ AVE.
DANI~ BEACI'~, FL 33004
LLC
FAC$1~IILE TRANSMITTAL SHEET
Bud Elyar Tom E. Lewis
(970) 920-5374 A~t 18, 2005
co~= ]OTAL No. OF PAGES INCLUDING CO~
'Pi~ Co~v
~er ~c ~oud Sub~ YOUR R~r~NCE N~MBE~
[] UItGISNT [] FO~ p. EVIF. W [] PLEASE COiqME~4T
NOTES/COMMENTS.'
It was · pleamre m~rmg yo~ thc o~= &y ~d I look fo~d to ~o~ ~ you oa
d~dopment of thc ~ ~oud Sub~ I ~ve amchcd for your, r~
xc~pomse' to biat%~ F~son% le~ 8a~ J~y 20, 2005 .~g ~e Lot 2 F~
P~t
a r~e8 p~ofg~i~ ~, ~o~, dhtl log ~d ro~ a~ by ~e ~
D~im of K~ ~ ~ Cmp~, a cons~ ~ that "~e mine ~s waste
~d~g of en~onmm~ de,damon m ~e fi~" F~ex, ~ ~ct :espouse to Fer~qon'~
~ ~at to~c ~ ~ leach om of ~e ~ste pile B~,ch a~ r~temre* kis findq-~ ~d
To c=ndude, ~ ~ght of ~ ~cNs md Sram p~L~'~ ~gs ~t ~e ~ ~;li~ on
o3/13,,¢2005 11'26 F,¢,X 970 945 5948 $CHt,tUESER 60RDON !4E¥'ER ~009/009
09/13/2005 05:1t 9549210138 LPZ HOLDINGS PAGE 03
Jot 2 do not ~cl,,d~ x-ou6ne i~iE~tion we ask ~at ~e req,,~t for d~t of
P~t by ~a~ew Fer~ ~ho r~m ~e u~cx~ of~t 1 be ~ed ~d
Moq ?~it for Lot 2 be appro~d ~o~, In ad~fion, we
app~ be ~ for ~e m~e~d ~R on ~t I p~ ~= =q.umt of~e Pi6~n Co~ En~e~
~k y~ ~ ~ce md ~o~d you ~ve my ~=dom or con~ pl~e do not
conm~ mt ~t (~04) 307-8878.
TomE,
Lewis Propert~ Imvcstots, T I C
?~0 N,I% v~'..s, vliNU~i, · DANI^ Bl~AdI-t, I~L 55004
PIIONE: (305) 8~-8149 · ~AXz (305) §47-37¢5
' ~ O0
0S,,,'1~.~2 5 11:23 FAX
09/13/2005 0~:~l
970 945 5948
954921013~
SCH~tUESER 60ROON htE'fER
LPI HOLDINGS
~ 004/009
PAGE 84
Environmental. LLC
T~mLcwls
L~wisPropertyI~
750N.E. 7~AYen;
D~aB~ach, Flofi
Dc~r Mr, Lewis:
~u my l~t~r,
~aaploying one of 6
create "a
l~el~'mmlve con~
Lot 2 prior to cornS.
In ~c~pon.~ to Matt
August l 8, 2000 l~t
mine t~tlin, gs may b
~m ~n~r~s Ire
~gation.'
Augu.~l$,2oo5
33004
Sent via Fac to 1-305-~47-3745
P~: Li~¢ Clc~! Sut~livi~ion
and r~vlewe, d th~informalion cont~Ir~e.d therein. I tmvc also
om Aunt of 2000. Beth Environrn~nlal limked itS awaluation of
spection and ro~w of materiats provided, includL~ $ s r~poa on
ev~ l~awl~k of Chon-Norther,, end a suba=quent ~[e~hon~
ira, I hmve also reviewed ~ report by l~.~lf~ower, en$inc~r for
r~s out of G-oMen, Color~io.
, Ict~r of August 18, 2000, thc ts/dings, according to M.r. Pawlak
~rm but m~v I~mc, h ~xic level~ of c~,-tadn ink-torah if altowc~*o
~c Stlbj~t to j.t~urlon ~ the ftr~ure." Thc:~ ~.re ~0 qualifiers [ri
>fwhich is based on S~v~ Pawlak's prof~ionnl opimi0m, that
~ w~.tt~l m=d two, that this may ~crur i£fi~ taillng-a ~ aubject to
~be ~,u'~, 8inet them w~ no irrigation ays~em at thc time, md
reco~Jzcd ~xp~t in tl~ field of soils, st~t~ that they w~re ~eaign
nfs ptl~ cticl not appear to.puac ~ny ~ignific~ut environmental risk
in 2000.
s~d'you could allevi~ the pot~ti~ problem of~t~ lem~h~ by
:~ op~ons. Pawt~ su~ ~e~i~ thc ~1~
~d I ~end~ r~o~ing ~ ~ ~ s~ as ~s wo~d
ms ov~e p~ f~ l~e~g o~ toxic min~s, ~ ~l~o
1o.,,~005 ]1 28 F,~' 870 845 5848
SCHMUESER GORDON ME?ER
I_PI HOLDINGS
~ 005/008
PAGE 85
In uny ~-e~c, if ;he 1
can likely adz ~e/Ye
simple resolut/o; to
S~1¥~
GARFIELD & gEGt-IT, P.O.
RO~ALO GAR~EL=' ATTORNEYS AT LAW
D^vlD L. Lg. Yo SNc, 1975
MATTHEW C. FERGUSONI www. g~eldhecht, com
' CH&D J. SCH~IT~
JOHN D. BELKIN July 20, 2005
VIA E-M~L AND U.Si MAIL
~. L~ce Clarke - ~CP~
Assist~t PitMn County Pl~ng Director
Pitkin County Co~uN~ Development Dep~ment
130 South Galena Street
Aspen, CO 81611
ASPEN OFFICE
601 IRAST H¥/aAN AVENUE
ASPEN, COLORADO 81611
TELEPHONE (970) 925-1936
FACSLMILR (970) 925-3008
BASALT OFFICE
110 MIDLAND AVENUE, SUFrE 201
BASALT, COLORADO 81621
TELEPHONE (970) 927-1936
FACSIMILE (970) 927-1783
GLENWOOD SPRINGS OFFICE
TEI.EP~'IOHE (970) 947-1936
FACSIMILE (970) 947-1937
Re: Earth Moving Permit Application
Permit No.: 0044.2005
Dear .Mr. Clarke:
As you know, I represent Terry and Cynthia Taylor, owners of Lot 1 in the Little Cloud
.S~ubdivision ("Taylors"). We have obtained copies of a Pitkin County Earth Moving Permit
Application signed by Thomas E. Lewis, and relating to Lot 2. This ~vas submitted to you by
Dan Cokley of Schmueser Gordon Meyer in his letter dated July 15, 2005. For the reasons, set
forth below, the Taylors object to and oppose issuance of this earth moving permit.
First, once again, Mr. Lewis represents himself as the property owner but he is not the
owner.
Second, for all the reasons set forth in the Taylor's previous appeals of the permits issued
to Lew/s, the Taylors object to the issuance of this permit.
Third, without waiving any of the Taylor's previous objections and claims based on the
serious geologic hazards that remain unresolved at Little Cloud, neither Lewis nor Cokley
address the mine tailings on Lot 2. On August 18, 2000, Beach Environmental, LLC confirmed
: for Lewis that Chen Northern's testings indicated that while the mine tailings may be "benign in
a dry form" they are subject to "leach[lng] at toxic levels of certain minerals if allowed to remain
{~Printed on recycled paper
M2'. Lance Clarke
July 20, 2005
Page 2
on site .... ," including through simple landscape irrigation. Beach recommended removal. In
fact, the current application would indicate mater/als will not be removed.
Fourth, the Taylors object to a staging area on Lot 2. Lewis and Cokley assert that th/s
will "decrease truck traffic," - which translated -really means they are ready to save money at
the expense of the Taylor's convenience and safety.
We request deri/al of the application. Thank you.
MCF/cc ~ew C. Ferguson
cc: John Ely, Esq. (Via E/.,m. aif~ / ~
114913
BRORIARD HARINE
To:gTe 9e5 9561
PArE
~32, 8,:
2000
Tom Lewis
Lewis Property lnYelstbrS. Inc.
g925 S.W. 148th Stree~
Miami, Florida 331'76
Via facsimile ~ 1-305-582-1333
Lot 2 Little Cloud Subdivision
De~ Tom:
At your request, I have tmdertaken and completed a review of the infc~onar.on
provided to me relating to the mine tailings and geology of Lot 2, Little Cloud
Subdivision, in Aspen, Colorado. As a pakt of my work, I reviewed prior, repOrtS from
the geotechnical engineering firm of Chon-Northern, authored by Stcven pawlak, a'
registered professional engineer, soils, drill log and rock analyses by the Materials &
Structures DJvislon of. Ken R. White Company, a consulting engineering t-gm.
Following my review of the information, I completed a brief site visit which
allowed me to form the following conclmion: th~ mine tailings waste pile lhat
remains on Lot 2 does not pose a significant cn.ironmentai risk or hazard and
does not result ia a lindiug of environmental degradation to the site. Movrover,
the site reconnalSsanc¢ support,q a findlng that there is no stresde, d vogct,~t~on or other
indicators of d~gradation occorrlng, there ~vcrc rm obvious materials stored or
dumped on site, narrow leaf cottonwood trees are growing through the tai~ngs pile
and areas adjacent to the tailings pile m'e replete with vegetation typical of this area.
The resultq of Chen-Nordmrn's testing indicates the tailings are benign in dry
:form but may leach out toxic levels o.f.' certain minerals if allowed to remain on-sim
and arc subject to rominc irrigation in thc future. While the Chon report suggests
spreading the soil~ and then burying them with lopsoil, or digging a pit and burying
the tailings. I wood recommend against this approach. Rather, 1 would recmnmend
the bulk of the tailings be removed and dlspo.qed of at the Pitkin County landfill or
other licensed disposal site. Removal of the tailings would create a much more
reliable and lasting remediation and would lessen the potential for future problems
related ;o leaching minerals being transported m oth~r properties.
The soils report indicates the tailings materials are not suitable for use ia
structural applicatimls due to shale content and therefore do not appear £o have roach
value to the property. In addition, the constituency of the shale talus makes it prone to
creep and the report suggests the tailings pile could becom~ unstabl.¢ i.f. saturated by
rain or snow. Therefore, it may be reasonable tv request the seller remove the tailing=
~'rom Lot 2 prior to completing thc.transaction.
07/22/2885 11:~
9549274288 ]3ROWARD MARINE
T0:970
PAGE
P.B03/Ol?
BEAC~ J~Of'I.R.O[sq~.EN-rA L,. LLC
Consequently, it may lac possiblc for you to complete your parchasc without
any further assessment or analyses oF the property or tailings. I-:lowevcr, you should
be aware that a potential leader may require the completion of a comprehensive Phase
1 Environmental Site Assessment and this work could be completed by my firm
within approximately tO days from authorization; I do not suspect thc ESA will
produce any additional concerns with the site though since I have completed ESAs
recently on properties in both directions adjacent m the Little Cloud Subdivision.
lfyou decide tO proceed with your purchase and wish ua to complete
additional work; in¢ladhig the removal of the mine tailings, please feel free to give
me a call. I will maka my.~elf available to aliswer any questions you may have.
Sincerely,
By
o255M.01
/¢
RONALD GARFIELD~
ANDREW V. HECHT
DAVID L. LENYO
MATTHEW C. FERGUSON~
CHRISTOPHER J. LACROIXL2
CYNTHIA C. TESTER
CHAD J. SCHMIT3
NATASHA SAYPOL
GREGORY S. GORDONtA
ERIC D. MUSSELMAN~
CHRISTOPHER D. BRYAN
JOHN D. BELKIN
OF COUNSEL, ROBERT E. KENDtO
PARALEGALS
MICHAEL D. MCCOLLUM
RUSSELL B. ZUCKERMAN
KATHY THISSEN
MICHELLE HYDE
GARFIELD & HECHT, P.C.
ATTORNEYS AT LAW
Since 1975
www. garfieldhecht.com
September 28, 2005
ASPEN OFFICE
601 EAST HYMAN AVENUE
ASPEN, COLORADO 81611
TELEPHONE (970) 925-1936
FACSIMILt~ (970) 925-3008
BASALT OFFICE
ll0M1DLAND AVENUE, SUITE 201
BASALT, COLORADO 81621
TELEPHONE (970) 927-1936
FACSIMILE (970) 927-1783
GLENWOOD SPRINGS OFFICE
THE DENVER CENTRE
420 SEVENTH STREET, SUITE 100
GLENWOOD SPRINGS, COLORADO 81601
TELEPHONE (970) 947-1936
FACSIMILE (970) 947-1937
BY HAND
Mr. Lance Clarke - AICP
Assistant Pitkin County Planning Director
Pitkin County Community Development Department
130 South Galena Street
Aspen, Colorado 81611
APPEAL
Re:
Appeal of Earth Moving Permit
Permit No.: 0044.2005
Approval Date: September 23, 2005
Property: Lot 2, Little Cloud Subdivision
Applicant: Thomas E. Lewis
Dear Mr. Clarke:
We represent Terry and Cynthia Taylor, owners of improved real property known as Lot 1,
Little Cloud Subdivision, located in Pitkin County, Colorado.
On September 23, 2005, Pitkin County Community Development issued the above-
referenced Earth Moving Permit ("Earth Moving Permit"). For the reasons stated in (1) Matthew C.
Ferguson's July 20, 2005, letter to you (attached hereto as Exhibit A), (2) the currently pending
litigation in Pitkin County District Court Case No. 04 CV 208, Terry R. Taylor, et al. v. John R.
Tucker III, et al., and (3) the Taylors' previous appeals to the Pitkin County Board of County
Commissioners of the permits issued to Thomas E. Lewis, the Taylors appeal the issuance of the
also admitted to 2. also admitted to 3. also admitted to 4. also admitted to
New York Bar Connecticut Bar Illinois Bar New Jersey Bar
Printed on recycled paper
GARFIELD & ]tECHT. P.C.
Mr. Lance Clarke
September 28, 2005
Page 2 of 2
Earth Moving Permit. In accordance with Pitkin County Land Use Code Sections 3-300-02 and 5-
210-010, the Taylors request a hearing before the Pitkin County Board of County Commissioners
("BOCC") regarding this appeal of the issuance of the Earth Moving Permit.
Please contact me with a hearing date as soon as possible.
Very truly yours,
Eric D. Musselman
117046 1
Stanley L. Gamett, Esq. (via e-mail)
Alan C. Friedberg, Esq. (via e-mail)
Christopher G. Seldin, Esq. (via e-mail)
J. Lawrence Hamil, Esq. (via e-mail)
ANDREW V. HECHT
DAVID L. LENYO
CHAD J. SCHMITj
CHRISTOPHER D. BRYAN
JOHN D. BELKtH
OF COUNSEL, ROBERT E. KE~IG
PARALEOALS
VIA E-~L A~ U.S. ~L
Mr. L~ce Cl~ke - ~CP
Assistmt PitOn County Plying Director
Pitkin County Community Development Depment
130 Sou~ Galena Street
Aspen, CO 81611
GARFIELD & CHT, P.e.
ATTORNEYS AT LAW
Since 1975
www. garfi¢ldhecht.eom
July 20, 2005
ASPEN OFFICE
601 EAST HYMAN AVENUE
ASPEN, COLORADO B 16 {
TELEPHONE (970) 925-1936
FACSIMILE (970) 925-3008
BASALT OFFICE
110 MIDLAND AVENUE, SUtT£ 201
BASALT, COLORADO 81621
TELEPHONE (970) 927-1936
FACSl)dILE (970) 927-1783
GLENWOOD SPRINGS OFFICE
THE DENVER CENTRE
420 SEVENTH STREET, SUITE
GLENWOOD SPRINOS, COLORADO 81601
TELE~'HOHB (970) 947-1936
FACSIMILE (970) 947-1937
Re: Earth Moving Permit Application
Permit No.: 0044.2005
Dear Mr. Clarke:
As you know, I represent Terry and Cynthia Taylor, owners of Lot 1 in the Little Cloud
Subdivision ("Taylors"). We have obtained copies of a Pitkin County Earth Moving Perrrdt
Application signed by Thomas E. Lewis, and relating to Lot 2. This was submitted to you by
Dan Cokley of Schmueser Gordon Meyer in his letter dated July 15, 2005. For the reasons set
forth below, the Taylors object to and oppose issuance of this earth moving permit.
First, once again, Mr. Lewis represents himself as the property owner but he is not the
owner.
Second, for all the reasons set forth in the Taylor's previous appeals of the permits issued
to Lewis, the Taylors object to the issuance of this permit.
Third, without waiving any of the Taylor's previous objections and claims based on the
serious geologic hazards that remain unresolved at Little Cloud, neither Lewis nor Cokley
address the mine tailings on Lot 2. On August 18, 2000, Beach Environmental, LLC confirmed
for Lewis that Chon Northern's testings indicated that while the mine tailings may be "benign in
a dry form" they are subject to "leach[lng] at toxic levels of certain minerals if allowed to remain
New York Bar Connecticut Bar Illinois Bar New Jersey
Mr. Lance Clarke
July 20, 2005
Page 2
on site ..... "including through simple landscape irrigation. Beach recommended removal. In
fact, the current application would indicate materials will not be removed.
Fourth, the Taylors object to a staging area on Lot 2. Lewis and Cokley assert that this
will "decrease track traffic," - which translated - really means they are ready to save money at
the expense of the Taylor's convenience and safety.
We request denial of the application. Thank you.
MCF/cc ~__~ew C. Ferguson
cc: John Ely, Esq. (Via E~ ti ~
114913
RONALD GARFIELDt
ANDREW V. HECHT
DAVID L. LENYO
MATTHEW C. FERGUSONI
CHRISTOPHER J. LACROIX1'2
CYNTHIA C. TESTER
CHAD J. SCHMITa
NATASHA SAYPOL
GREGORY S. GORDONL4
ERIC D. MUSSELMAN~
CHRISTOPHER D. BRYAN
JOHN D. BELKIN
OF COUNSEL, ROBERT E. KEND1G
PARALEGALS
MICHAEL D. McCoLLUM
RUSSELL B. ZUCKERMAN
KATHY THISSEN
MICHELLE HYDE
GARFIELD & HECHT, FoC.
ATTORNEYS AT LAW
Since 1975
www. garfieldhecht.com
December 9, 2005
APPEAL
ASPEN OFFICE
601 EAST HYMAN AVENUE
ASPEN, COLORADO 81611
T£LEPHONE (970) 925-1936
FACSIMILfi (970) 925-3008
BASALT OFFICE
ll0MIDLAND AVENUE, SUITE 201
BASALT, COLORADO 81621
TELEPHONE (970) 927-1936
FACSIMILE (970) 927-1783
GLENWOOD SPRINGS OFFICE
THE DENVER CENTRE
420 SEVENTH STREET, SUITE 100
GLENWOOD SPRINGS, COLORADO 81601
TELEPHONE (970) 947-1936
FACSIMILE (970) 947-1937
BY HAND AND EMAIL
Patti Clapper, Commissioner
BOCC
530 E. Main Street
3rd Floor
Aspen, CO 81611
Dorthea Farris, Commissioner
BOCC
530 E. Main Street
3rd Floor
Aspen, CO 81611
Jack Hatfield, Commissioner
BOCC
530 E. Main Street
3rd Floor
Aspen, CO 81611
Re:
Michael C. Ireland, Esq., Commissioner
BOCC
530 E. Main Street
3rd Floor
Aspen, CO 81611
Michael Owsley, Commissioner
BOCC
530 E. Main Street
3rd Floor
Aspen, CO 81611
Mr. Lance Clarke
Assistant Pitkin County Planning Director
Pitkin County Community Development
Depart.
130 South Galena
Aspen, CO 81611
Appeal of Earth Moving Permit .
Pemfit No.: 0044.2005
Approval Date: September 23, 2005
Property: Lot 2, Little Cloud Subdivision
Applicant: Thomas E. Lewis
also admitted to 2, also admitted to 3, also admitted to 4. also admitted to
New York Bar Connecticut Bar Illinois Bar New Jersey Bar
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6AIRFIELD & HECHT, P.C.
BOCC
December 9, 2005
Page 2 of 6
We represent Terry and Cynthia Taylor (collectively the "Taylors"), owners of improved real
property known as Lot 1, Little Cloud Subdivision, located in Pitkin County, Colorado. We write
further to my letter dated September 28, 2005, to provide the Taylors' further"brief' on their appeal
of the above-referenced Earth Moving Permit 0044.2005 ("Earth Moving Permit").
I. INTRODUCTION
On September 23, 2005, Pitkin County Community Development issued the Earth Moving
Permit 0044.2005, which was applied for by Thomas E. Lewis ("Lewis") at a time when he was not
the owner.~ (Exhibit "A"). Lance Clarke provided zoning approval and Bud Eylar engineering
approval. The Earth Moving Permit approved a "Staging and Stockpile area" on Lot 2 of the Little
Cloud Subdivision. It permits the excavation of rock and soil, and was applied for and approved in
connection with the Driveway Permit, and also provides that Lewis' project will disturb or result in
the removal of vegetation.
II. RELEVANT FACTS
On July 13, 2005, Schmueser Gordon Meyer, Inc. ("SGM") submitted an Earth Moving
Permit Application for Lewis requesting pemfission to use Lot 2 "as a staging area for materials
during construction of the Little Cloud Driveway." (Exhibit "B"). SGM represented that this
permit would "benefit the community" because it would reduce the use of off-site excess materials,
and would decrease truck traffic. The Taylors' counsel lodged an objection on July 20, 2005
(Exhibit "C"), and requested denial of the permit. The Taylors reiterated their prior driveway
appeal issues but also pointed out the issue of the large mine tailings waste pile on Lot 2, and the
environmental hazards it posed. On August 18, 2005, Lewis/LPI responded to the Taylors'
objections. On September 23, 2005, the Earth Moving Permit was issued and, on September 28,
2005, the Taylors appealed its issuance.
III. ARGUMENT
The Taylors incorporate by reference their appeal of the first and second Driveway Permits
issued to Lewis, and their previous submissions to this Board. Moreover, the Taylors incorporate
their arguments set forth in their pleadings, motions and appellate briefs, including their C.R.C.P.
106 Opening Brief (Exhibit "D") and Reply Brief, in the Pitkin County District Court litigation
styled Taylor, et al. v. Tucker, et al. (2004 cv 208-1) ("District Court Action"). The Taylors'
previous submissions to this Board and its C.R.C.P 106 appeal and other claims in the District Court
~ Lots 2, 3, and 4 of the Little Cloud Subdivision are now owned by LPI Aspen, Inc. ("LPI"), a Florida corporation.
Lewis is president of LPI.
GARFIELD & HECHT, P.C.
BOCC
December 9, 2005
Page 3 of 6
Action amply support this Board's revocation of the Earth Moving Permit.
The Earth Moving Permit should be denied for additional reasons, including its impact on
mining and environmental issues. Lewis, LPI and their experts have continued to fail to adequately
address mitigation and remediation of the mine tailings waste pile on Lot 2, and the resulting
potential leaching of toxic materials and hazards, and airborne dust and related stability issues.
Lewis' ongoing earthmoving activity on the pioneer road at Little Cloud Subdivision recently
began on or about Thursday, September 8, 2005. Shortly thereafter, the earthmoving activity caused
an approximately 24" x 24" x 8" rock to come loose and crash from the proposed road onto the
Taylors' front yard, narrowly missing the Taylors' home. Some photographs of the ongoing
earthmoving activity, as well as the fallen rock, are attached hereto as Exhibit "E". The confirmed
hazards from the mine tailings waste pile further intensify the already known geological hazards,
including rockfall, unstable slopes, subsidence and avalanches, that exist at the Little Cloud
Subdivision. The Earth Moving Permit should be revoked.
A. The 2000 Beach Report
SGM' submitted with Lewis' Earth Moving Permit application was a report by Beach
Environmental, LLC's ("Beach"), dated August 18, 2000, titled "Lot 2 Little Cloud Subdivision"
("2000 Beach Report").2
The results of Chen-Northern's testing indicates the tailings are
benign in dry fomi but may leach out toxic levels of certain minerals
if allowed to remain on-site and are subject to routine irrigation in the
future.
(Emphasis added). The 2000 Beach Report recommended the following to mitigate potentially toxic
leaching:
I [Gary L. Beach] would recommend the bulk of the tailings be
removed and disposed of at the Pitkin County landfill or other
licensed disposal site. Removal of the tailings would create a much
more reliable and lasting remediation and would lessen the potential
for future problems related to leaching minerals being transported
to other properties.
2A copy of the 2000 Beach Report is attached hereto as Exhibit "F".
GAt~F]ELD & HECHT, ?.C.
BOCC
December 9, 2005
Page 4 of 6
(Emphasis added). Beach's 2000 report for Lewis - coming 10 years after Tucker's illegitimate
approval also provided that "the constituency of the shale talus makes it prone to creep and the
[Chen-Northern, Inc.] report suggests the tailings pile could become unstable if saturated by rain or
snow." COM DEV's Earth Moving Permit allows heavy equipment and heavy operations to take
place directly on top of this site, and on and around the mine tailings waste pile. Photographs of the
staging area with a large vehicle and heavy materials atop it are attached as Exhibit E. The 2000
Beach Report concluded that lenders may require a comprehensive Phase I Environmental Site
Assessment ("ESA") of Lot 2. There is no indication that Beach or anyone else has ever completed
this assessment, or that Lewis as the developer has ever requested it. Lewis has never followed
Beach's recommendation that the mine tailings waste pile be removed from Lot 2. The mine tailings
waste pile still remains, with heavy staging work and equipment now on top of it. There has been no
further study or remediation on Lot 2.
In fact, the Taylors, including their 7-year-old twins, were subjected to dust from the earth
moving operations and the staging area only yards from their home.
B. The 2005 Beach Report
Apparently in response to the Taylors' July 20, 2005 objections, Lewis submitted a second
report dated August 15,2005, titled"Little Cloud Subdivision" ("2005 Beach Report,').3 The2005
Beach Report is equally instructive regarding the additional analysis and remediation required for Lot
2's mine tailings waste pile. On August 18, 2005, Lewis submitted the 2005 Beach Report to Mr.
Eylar, and the developer himself represented that "the mine tailings on Lot 2 do not pose an
environmental risk or hazard." The 2005 Beach Report again addresses the concerns of leaching at
toxic levels if the mine tailings waste pile is allowed to remain on Lot 2. The 2005 Beach Report,
citing Steve Pawlak of Chen-Northern, Inc., suggests the following remediation to "alleviate the
problem of future leaching":
· "spreading the tailings and then burying them with 1 to 2 feet of
uncontaminated'material (topsoil)"; or
· "digging a pit and burying the tailings"; or
· "removing them from the site as this would create 'a much more
reliable and lasting remediation.'"
3 A copy of Lewis' correspondence to Mr. Eylar and the attached 2005 Beach Report are attached hereto as Exhibit "G".
GARFIELD& HECHT, P.C.
BOCC
December 9, 2005
Page 5 of 6
According to Beach, "[a]ny of the three options would likely resolve concerns over the potential for
leaching of toxic materials." None of these options have been adopted and carried out. Lewis
postulated that, if there was no irrigation, no leaching would occur. No one has ever addressed the
issue of the raw airborne mine tailings dust, or the instability of the pile under the stress of the
workloads on it now.
The 2005 Beach Report concludes that the mine tailings waste pile "may leach if wetted ..."
(Emphasis in original). Beach, SGM and Lewis fail to address and ignore altogether Beach's 2000
conclusion that shale talus "could become unstable if saturated by rain or snow." This failure to
address saturation by rain or snow, and instability violates the Pitkin County Land Use Code,
including §§ 3-170-030(E)(1) and 3-80-050(C)(1). Beach also fails to address whether any other
activities (or accidents) could cause wetting, and thus cause leaching. The 2005 Beach Report offers
no opinion regarding the impact to the mine tailings waste pile from the approved "Staging and
stockpile area," and the resulting (1) removal of vegetation and (2) excavation of rock and soil.
C. The 2002 CTL Report
SGM has produced to the Taylors in the District Court Action a report from CTL/Thompson,
Inc. ("CTL"), dated August 30, 2002, titled "Geologic and Geot6chnical Consultation Potential
Effects of Development of Lots 2, 3, and 4, Little Cloud Subdivision and Tract A of Government Lot
20 on Kutme Residence" ("2002 CTL Report") (Exhibit "H"). CTL studied the"mine spoils pile on
Lot 2" and concluded that:
The mine spoils may be considered an environmentally hazardous
material. Phase 1I environmental testing should be performed on
samples of the mine spoils to determine if a contamination problem
exists. Mitigation of contaminated mining spoils includes dust
control during construction and burying the material on site with
several feet of "clean" soil.
In 2002/2003, the Taylors' consultant, David Cushman, reported to the BOCC: "The mine
subsidence issue is curiously not addressed by Lampiris, even though mine workings and tailings
piles are mentioned." CTL has stated about this "1041" hazard that: "We recommend excavating
exploratory pits in the suspected mine adits ..."
CTL also conducted earlier Subsidence Analyses for Kuhne/Taylors, in 1998/2002:
Previous mining activity is evident by the presence of a mine spoils
GARFIELD & HECHT, ?.G.
BOCC
December 9, 2005
Page 6 0£6
pile on Lot 2 with some of the spoils along the south edge of Lot 20.
It appears that an abandoned adit is above and behind the spoils pile.
Areas above the old mine adit may be subject to subsidence. The
mine spoils may be considered an environmentally hazardous
material
This hazard not yet even studied, and yet in violation of its own Code, C.R.S. § 24-65.1-101, et seq.,
the Earth Moving Permit simply ignores the issues as new development over extensive and
potentially dangerous mine works and hazardous materials is underway.
The Taylors are aware of no testing of the "mine spoils," no mitigation of contamination, and
no dust control during construction. The Taylors do not want to take a "wait and see" approach to
the contamination and leaching that could reach toxic levels. The Taylors, their neighbors, the
Friends of Shadow Mountain, Pitkin County, the City of Aspen citizens and the many local users of
the Midland Trail and surrounding public environs, may be jeopardized given the utter failure to
investigate and remediate Lot 2's mine tailings waste pile. This issue has simply been glossed over
as with all other serious geologic hazards. The Taylors' objective remains the protection of their
children and all who use their home. The Taylors also desire to protect their significant investment.
Lewis has provided no testing, mitigation or remediation to address leaching from Lot 2's mine
tailings waste pile. Lewis has ignored CTL's conclusions, and has employed none of Beach's three
remediation options. The Earth Moving Permit should therefore be revoked.
IV. CONCLUSION
This appeal should be granted and the BOCC should revoke the Earth Moving Permit. The
Taylors also respectfully request that the BOCC not approve any additional permits for the Little
Cloud Subdivision, pending resolution of the various issues raised by the Taylors in Pitkin County
District Court, which are set for trial beginning April 17, 2006.
CC:
118930 3
Very truly yours,
Matthew C. Ferguson
Stanley L. Garnett, Esq. (via e-mail)
Alan C. Friedberg, Esq. (via e-mail)
Christopher G. Seldin, Esq. (via e-mail)
J. Lawrence Hamil, Esq. (via e-mail)
~~.-': EARTH MOVING PERMITAPPLJCATION ' ... _
7 ¢e~ r~ui~ for approval ~cas~ frum ~a ~mplets ~fo~ation recsbed. Pe~it AdministratiVe Fee (no ~funds) $ ~ ~.
WORK STARED ~TNOUT A PERMIT ~LL BE C~ED DOUB~ FEES ' '
VALID PERMIT MUST BE KEPT ON SITE AT ALL TIMES
T~lB PERMIT IS REQUIRED FOR ANY EARTHMOVING WORK THAT' INVOLVES THE MOVEMENT OF MORE THAN SO CUBIC Y~O$ OF SOIL (EXCEPTION
FO~ FOUNDATION PERMITS)
:k MINIMUM OF THREE (3) COPIES OF ANy AND ALL INFORMATION ~EQUIRED MU ST ACCOMPANY THIS APPLICATION.
~F THE JOB DESCRIBED BELOW REQUI~ES THE MOVEMENT OF MORE THAN 500 CUBIC YAi~O,~, THE TECHNICAL INFORMATION AND DATA
REQUIREMENTS SHALL BE PREPAREO AND CERTIFIED BY A PROFESSIONAL ENGINEER, REGISTERED IN THE STATE OF 6OLOP~.r~o.
Thomas j[. Lewis, 201 West Cooper, A~pen CO 81611
Thomas ][, Lewis
2200 South Dixie Highway, Suite 702B, Coconut Grove FL 33133
Little Cloud Subdivision
Lot 2
Little Cloud Subdivision
Rock & Soil
~PPLJCA~OH WILL NOT BE REVIEWED UNL~S,S THIS PORTION I~ COMPLETE
To~l Cubic Yard& (CUt & F!~I): 4-70 To~l Cut:~)
Max Depth: 0' M~x v',qdth:.90~ U~X ~.i~i~h~ 8'
To(al Cubic Yards (Cu~ & RI0; ~ r u
Total Pill: 470 Max Length:
Access Driveway for lots 3 & 4.
12.a. Is any portion of fha ~evelopmeflt prol~xssal now c~p~? r~,¢~ [] HO
In 1991, ~e a~ess drive~y and udli~es were ~ken to Lo~ 2.
13. ~11 ~e pro, ct requfm ~he distu~an~ of t~ 100 y~ ~d plain? ~ Y~ ~ NO
14,. ~ the projec[ disturb or r~sul[ in the removat of any vege~gon? [] YES [] Nl~es, a ~vegetaaon pla~ and ~'~4rib, i~ mq~[md. Ea-~mo~
15. ~ the project disturb or mault in the r~movaJ of any wed~nd or ripa~.~t~t~on?/, [] YES [] NO
C onstru
T~.E POLL{OWING MAPS OR DRAWINGS IDENTIPYINC.,N~=cm~!;~'~4'-R'~B~.G.d*HE PROJeCT^RE P~QUIRED:
I. S~e ksc-~tion map ~d zoning of ~e pro~erty and ~ny development approvals associated with the prope~'y,
3. Ravegetaflon plen,
1~. ,~ev~.~,~;;s,c~.~,,.~,~ 18~. If yes, ~oun~
" · ·,"13 "2005
'11
II I
· ·
III
· ·
II I
· ·
tl :28 F,,,., 97O 945
$CMMUESE~ ~ GOFHDON r MEYER
SCHMU£SER GoRDoN MEYER, JlVC,
118 Wes~ 6''~ Stye& Suite 2~
gJenwood Sprin~s CO ~1601
b ttp://w~.s~m.inc, corn
SCHWUESER ~OROOH NtE'~,'ER'
RECEIVED
SEP ! 3 7_O05
~ 001,."0o3
Glenwood Sprin~ Office, 970) 945-1004
FAX: (S70) 945-5948
'Aspen Office: (970) 925-6727
FAX~ (970) 925-4157
Creeled Bu~e ~c~z (970) 549-5~55
.F~ (~70) 349-5358
Meeker O~c~= (970) 878-5180
M/SS/ON STAT£MEAO': We ezi~t to make our di~nt~ ~ucce~sfuL _We do ~hi~ by unde~%endl~ t~ir
~evelopm~n~ and/n/~truclu~ ~eed$, and %he unique enviton~enf of the valley communib'~ whe~ ww
We proW~ re,pon=ire, appropWa~e en~Jneerln~ zu~eyfn~ end co~ult]n~ ~e~fc~& te achle~ our client'
while prolecfln~ the h~altfl ~afe~, quafi~ of life and moun~in eflvl~n~nt of our neighS.
projec~
To:
To;
Fax:
To: Fax:.
To: Fax:
FROM:
[ ] Original mailed, ~ Original not mailed,
COMMENT:
CONRDENT[~LITY NoTIcE
This fac=[mile tmnsmi==ion (and/of documents accompanying iO may con~'aln confidential lnfO~on ~Jongi~ ~
the &ender, whkh /~ pto tected by ~e enE[ncer/c]{ent privfle&e. The information [s intended on~ for ~e use of ~
[nd]v[duel of enU~ ~am~ a~ve. If you a~ no~ the intended fecJp/~n~ ~ou am he.by hoOf/ed ~a tan] d[sclosum,
d~umenG, Thank ~.
Total peges Cncludlng this cage)~ ~ P;ease c~ll if this amount cfi pages wa:~ not received,
EARTH MOVING PERMITAPPLICATION
S. Galcna St. 'Aspen, OD · 81011 Permit ~. ~/-¢'(-(. ~.-~ ¢~
130
eT0,g20.5090 Fax 970.920.5439Check # i ~ ~''~ ~C,~ }~/~0(~ i-
7 da~ require0 f~ approval ~ ~ ~ ~mplete ~fo~tbn re~ed. Pe~ Adminis~a~ve Fee (no ~funds ) $ ~,
WORK STARTED ~TMOUT A PERMIT ~LL BE C~RGED DOUB~ F~ES
VALID PERMIT MUST BE KEPT ON SiTE AT ALL TIMES
THIS PERMIT I$ REQUIRED FOR ANY EARTHMOVING; WORK THAT INVOLVES THE MOVEMENT OF MORE THAN 50 CUBIC YARDS OF SO~L (EXCEPTION
FOR FOUNDATION PERMITS)
A MINIMUM OF THREE (3) COPIES OF ,~Jy AND ALL INFORMATION REQUIRED MUST ^CCOMP^NY THIS APPLICATION.
IF TrfE JOB DESCRIBED BELOW REQUIRES THE MOVEMENT OF MORE THAN 50~ CUBIC YARDS, THE TECHNIOAL INFORMATION AND DATA
REQUIREMENTS SHALL BE PREPARED AND CERTIFIED BY A PROFESSIONAL ENGINEER, REGISTERED IN THE STATE OF COLORA[30,
Thomas~., Lewis, 201 West Cooper, Aspen CO 81811
Trlomas 1~. Lewl$
2200 So~h Dixie Highway, Suite 702B, Comnut Grove FL 33133
Ut'de Cloud Subdivision
Lot 2
Little Cloud SubdMslon
Rock & Soil
E~li~e~ms ~'-'~T~mche$ ~]Po;~d~ r~LItlI~es ~]Tra~s [~C)~er Sta~:~l'$tockpjle~ea
APPLICATION WILL NOT BE REVIEWED UNLESS THIS PORTION I$ C;OMPLETJ~
To'al Oubb Yards (Cat & F~[)?70 moral C~:~
~ax PepS:0' M~ W~ h:.90' M~ H~ght:. Bt
To~ C~ic Ya~ (Cut &~[O; ~/U
Total Filt: 4?0 M~[x Length:. 90'
Access Driveway fi3r lots 3 & 4
12e,, IS any po~on of the development proDosaJ now complete? [~YE~ [] NO
In 1991, the at-.cass driveway'and ut~llties were taken to Lot2.
13. WlJl the pro.lect requl~e the distu~ance of the 100 year/Jood plain? I'-~ YE~ ~NO
14, ~ ~ prowl d~tu~ or maul[ in th~ ~mo~l of any ~e~n?
15. ~ ~e pro~t dis~ ~ m~uE in ~ ~mo~ of ~y we~nd ~ ~.~on?
~, ~e~e in~d~ ~y ~e~ ~m ~e EPA ~ U~CE, A midden & ~ve~ pl~ ~ ¢~ ~y w~d or dp~a ~ Impaled by d~L
Cons~on season 2005
1. ,.~te location map and zoning of 7~e property and any devek)pment approvals assocatad wen !~e property,
2. A map with surlace view show'inD ~JevaSc~s or contours of [ne ground, ped~n~rd, s~'ucturea, fill or storage ezevaMons, size, location and spatial amangem~nt of
ail proposed and ex~§ng etructun~s on ~e site. and IocaUon ~ elevation of streets, roads, w~ter aupp~ systems, t, anltary racl~s and s~; typ~.
3. Ravegatatlon pta~,
5. a site Grading Ptan detaJ{In[l the ~ope of work,
COM1V/IJ2~TY DEVELC ~'ENT DEPARTMENT
130 South Galena Street
Aspen, Colorado 81611
(970) 920-5526
Pitkin County
Land Use:
172 Board of Adjustment
159 County Land Use Code
173 Deposit
174 Flat Fee
169 Public Notice
160 Planning Enforcement
175 Hearing Officer
Referral Fees:
210 Airport
LUC01 County Clerk
211 County Engineer ~ ~ --
194 Environmental Health
208 Historic
198 Housing
190 Land Management
209 Reckstone HPC
206 Wildlife Officer
Building Fee~:
Board of ~ppeals
Building Code Sales
Building Permit
Contractor License
Electrical Permit
Energy Code Review
Mechanical Permit
Plan Check
Plumbing Permit
Reinspection
Aspen sanitation
AVFD Fire Marshal
BFD Fire Marshal
Other Fees:
155 Use Tax
165 Copy
PZ005 Master Plan Copy
Performance Deposit
185 Park Dedication
186 Parking Cash in Lieu
IS GIS Requirements
B1202 Road Impact Fee
B1203 School Impact Fee
170
135
105
100
120
195
115
110
130
151
152
158
, I
__L__ ~.~., SCHMUESBR
GORDON h4 E"CER
July 13, 2005
Mr. Lanc~ Cla-r-k .....
Pitkin-C. ounty-Comm unity Development
. L_ _130_S_._Galena _
I Aspen, CO 81611
I , "-.-Re:./' .Littlegl0ud Sub'"-~iSion
i Dear Lance,~--
i i Enclosed is an EarLhmoving Perm t Application for the Little Cloud Subd vision. The
I ..... !-~'e-r'r~it is a request to allow the use of Lot 2 of the Little Cloud Subdivision to be. used as
~ i
! : -~ .... ¢'~'-'a3tagmg area'for materials during construction of the Little Cloud Driveway.
~
The use of Lot 2 will provide benefit to the community by allowing an on-site location to
~ '-' '-" ;' ' ~dc~-Ct ~(~ti-i¢ Of the on-site excess material to be used to create a staging pad. The
.... - - ~- - ~ staging pad will be used to sc,een on-site material for use on the backfill of the MSE
........... ........_w_.alls.__. This operation is not mechanical. The operation will reduce the amount of off-site
.... _: ..... i_ ' excess matedal as well as reducing the amount of imported aggregate materials.
; The operation will be limited to the area of the existing Lot 2 building envelope. All
disturbed areas will be protected by erosion control during and following construction.
Following construction, the site will be revegetated per County standards.
The result of the approval of this permit win decrease truck traffic between this site and
the Pitkin County Landfill by over 150 two-way trips. The reduction in truck traffic will
also reduce energy, noise and dust in all areas below this lot.
Please do not hesitate to call with any questions. Thank you in advance for your prompt
attention to this permit.
Sincerely,
SCHMUESER GORDON MEYER, INC.
Dan Cokley, P.E.~
CC: Thomas Lewis
Curtis R. Sanders
t:\1988\8049\C\Corresp\8049c_earthmoving permit.doc
RECEIVED
P~l~n Oourr~, Building Dept.
' EARTH MOVING PERMIT APPLICATION
970,920.5090 F~ 970-920.~396heck ~ ~ ¢~ ¢~ ~ /¢~¢~ I
7 d~ requi~d for approval p~sss ~m ~e ~mplete ~fo~tion re~ived. Pe~ Adminis~ative Fee (no ~funds ) $ ~.
WORX STARTED V~TNOUT A PEFtMfT VVILL BE OIHAR~ED DOUgL~ FEES
VALID PEPJ~IT MUST BE KEPT ON SiTE AT ALL TIMES
THIS PERMIT IS REQUIRED FOR ANY EARTHMOVING WORK THAT iNVOLVES "r14E MOVEMENT OF MORE THAN ~0 DUB4~ YARDS OF SOIL. (EXCEPTION
FOR FOUNDATION PERMITS)
A MINIMUM OF THREE {3) ~OPIES OF Akfy AND AL~ INFORMATION REQUfftED MUST ^CQOMP,~N¥ THI~ APPLICATION.
~F THE JOB DESCRIBED BELOW REQUIRES TH5 MOVEMENT OF MORE THAN $0U CUB)~ YA.F,.D$, THE TECHNICAL INFORMA'13ON AND DATA
REQUIREMEICFS SHALL BE PREPARED AND CERTIFIED BY A PROFESSIONAL ENGINEER, REGISTERED IN TH[ STATE OF
Thomas~. Lewis, 201 West Cooper, Aspen CO 81611
Thomas ~. Lewis
2200 South Dixie Highway, Suite 702B, Coconut Grove FL 33133
Little Cloud Subdivision Is. ~"~ P'~'~")
I
Lot 2
Little Cloud Subdivision
Rock & Soil
APPLICATION WILL NOT BE REVIEWED UNLESS THtS PORTION IS DOMPLETf
Total Cubic Yards. (CUt & FII0:.470 TotaI CUt:~D
To~ Cubic 'Cams (Cut & ~10; ~ r u
Total Fill: 470 M~ LenDf~:. 90'
A~oe~s Driveway for lots 3 & 4
12s. I$ any portlan ef the development prop~af now compile? ~ ~ NO
In 1991, ~e a~e~ ddveway and utillSes were ~ken to Lot2.
13. ~11 ~e project requl~ the distu~en~ of t~e 100 y~r fio~d plain? ~ ~ ~ ~
15. Will the prd~ct disturb or m.uE in the removal Df any wetland or riperi~t~tion?/ [] Y~ [] NO
3. Revegetatic~n
5. A s~ Grading P[a~ detaJiln~ ~e s=ope =f work.
CUT = 470 CY .,'o~ ~-~ ~,~'~k-/ '~ ~-%
/ FILL = 0 CY ~ '3 ~ ~'"~/ /-'""'~-- "',/~
% '., ., / /
DIS~RBED AREA TO BE RE~GETATED PER PlaIN COUNTY STANDARDS.
sc~u~s~ ¢o~o~ ~ ~c. LITTLE CLOUD
August lB, 2000
provided to me relating~t6 the mi.ne ~illngs a~ ge010~ o/L~t 2, Little
Subdivision, h~'A~n.' coldhd6'2:. '~ :~' ~:!~'~f~y'work, 1 ~viewcd prior repots '~m
. . the g~t~hnical,englneefi~g :firm or Chen-Nort~m, authmca by Slcven P~w!~k. a
' ' ' ' ' ~glatemd professton~ engross'sods drill log anti ~k alysm by [he Mortals &
.... SkUetures pjv.~km o~Ken R:.~it~ ~o~pany,'a.Cemgu!t'ing engineering f~rm,
d0~' not' r~ml~ tn a finding 0f en~mnme~l flegrnflstion to th~ sit~. Momever,
itidicat~r~:~f-deg'~aaion ~curring; ihere, write n0~b~'b~ moieties stored or
.... : '~ -.,-,. a~d,~s; adjacent to ~he~m~ings:piI~.a[e.mple[~..Wi~ vegelafiun typical o[ thi~ ama.
. ,.' - ..... .~ .~.-,.' ~;~e ~]~s of Ch~?Ngnbern-~ msUng:m~cates ~ r~:ngs are being,.
~, .and ~rc suhjemlo murine ~mgatmn m the'~m:~'/i'~hBe'~ Chert re~
....... · en busing'fflam ~th topsoil. [~'d(g~ng a ~t and
. . '-' '. LThe so ~ repo;x in~,a~.~ the rollings ~dr~d~Is ~ no~ suitable for use
.... : .... ~tmctural applidafions'duc to,hale content and th~efore do not ap~ar to ha~e m~ch
v~um toth= pm~ny~ l.n~0di~on, ~e constituency of the shale t~us makes i.t prone to
creep and ~e report ~uggem the t~lh~gs pile could ~ome unsmbl.e if sat~aled by
rmn or snow. Therefore, it my be masmabl~ to request ~e seller remove ~e t~ling~
~,e ~m from Lot 2 prior to complet~g the lransac~on.
'BEACH ENVI!KONME'NTAL. LLC Pzge 2 :"'' '
Aagu.~t 1 B, 2DOD
e a call I will make myself avadab~ lo answer any qucsuons you may have.'
COMMUNITY DEVELOP1V
130 South Gale..~ Street
Aspen, Colorado 81611
(970) 920-5526
Pitkin Comuty
Land Use:
172 Boa.rd of Adjustment
159 County Land Use Code
173 Deposit
174 Flat Fee
162 Zoning and Sign
169 Public Notice
160 Planning En/orcement
175 Hearing Officer
Referral Fees:
2~o ~rpor~
LUC01 County Clerk
211 County Engineer
194 Environmental Hea]th
208 Historic
198 Housing
190 Land Management
209 Redstone I-~PC
206 wildlife Officer
Building Fees:
170 Board of Appeals
135 Building Code Sales
105 Building Permit
100 Contractor License
120 Electrical Permit
195 Energy Code Review
115 Mechanical Permit
150 Plan Check
110 Plumbing Permit
130 Reinspection
151 Aspen Sar~tation
152 AVFD Fire Marshal
158 BFD Fire Marshal
Other Fees:
155 Use Tax
165 Copy
PZ005 Master Plan Copy
Performance Deposit
185 Park Dedication
186 parking Cash in Lieu
IS GIS Requirements
B 1202 Road Impact Fee
B1203 School Impact Fee
~T DEPARTMENT
05/13/2005 11'2~ F,O( 870 845 5848
i39,/13/2005 85:11 954~2~ ~
$CHI,IUESER BDRDDN
~ o o B,,," o o 9
P~GE 86
July 20, 2005
.Earth Moving P¢m2t ApvtJcati=n
P¢rmJt No.; 00~.4.2005
Dear Mr. Chtkc:
A.~ you know, I reFr¢sent T¢ns' and C~tNa T~ylar, o~m of~t t in ~e Li~e Clo~
Sub'vision ('Weylom"). W¢ h~v¢ ebbed =op&~ of a Pi~n Co~W ~ Ma~g P~t
kpp~cation ~¢d by ~ E. ~wiu, m:d relating to Lot 2, Tki~ was submi~cd ~o you by
D~ Cokl:y of Solute. Gordon Mey~ N Ns le~ dated I~y. 15, 2005, For ~e r=aso~ sm
fo~ below, the Taylo~ obj~t to and oppose issu~ca of~ ¢~ ma~g p~it.
First, old. ce again, Mr, Lc'vis rcprcse=is hi.resell as tha pro~arty owner but h¢' is not thc
S==ond, for all the r:a~ons ~ot forth in the Taylor's'previouz
to Le~s~ ~e T~y]o~= object lo ~= is~nce oral=
T~, ~out w~g ~y of ~e Taylor'~ previo~ obj~d.o~s ~d ~Iaim~ b~ed on
scrio~ geolo~c hazard~ fl~at re:n~ u~esotved at Li~l¢ Clod, n~th~ L~i~ nor Coklcy
ud~ess d~c min~ t~.iings on Lot 2. On Au~ 18, 2000, Be~:h Env~men~, LLC co~cd
for ~wie fl~at Ch¢n No~em's testNgs ~at¢d ~at
~ ~ fo~" ~¢y ~e ~bject to "loach[~g~ at Zoxic 1~1~ of
0S,.,"13/2005 11:27 FkX
89/13/2805 85:11
SCH~4UESER GORDON
*LPZ HOLDiN~$
~ 007,,,"003
P~E 07
Mr. Lm5¢,¢ Clarke
.fu]y 20, 2005
P~g~ 2
on site .... /' including lubroug~ simple lmr~dsm~lme'irrSg~fion.
f~t, rl~ cu~n: ~ppl]c~don wou~d ]n~cat~ ~als ~iI] no~ b: r~ov~d,
Fom~ ~ Taylo~ objee~ ~o a sm~ng
will "d~re~¢ track ~m~c," - ~ch ~¢latmd,- rc~]y
the exp~nse of th~ Tayior's ooov~ieno: and
We reqttest denial of the application. ~I-~ank
MCF/cc ~ew C. F~guson
cc: 30h= Ely, Esq. (Vi~' / ~ .
l I,a9'13
DISTRICT COURT, PITKIN COUNTY,
COLORADO
506 E. Main Street
Aspen, CO 8161 !
(970) 925-7635
Plaintiffs: TERRY R. TAYLOR AND CYNTHIA
E. TAYLOR
Vo
Defendants: JOHN R. TUCKER HI, individually
and as President of COTTONWOOD GARDENS
DEVELOPMENT CORPORATION, and
COTTONWOOD GARDENS DEVELOPMENT
CORPORATION, an Arizona corporation,
THOMAS E. LEWIS, BOARD OF COUNTY
COMMISSIONERS, PITKIN COUNTY,
COLORADO, DOROTHEA FARRIS, PATTI
CLAPPER, JACK HATFIELD, MICHAEL C.
IRELAND, and SHELLY ROY, in their official
capacities only.
Matthew C. Ferguson, #25687
Eric D. Musselman, #35976
Garfield & Hecht, P.C.
601 East Hyman Avenue
Aspen, Colorado 81611
Telephone: (970) 925-1936
Facsimile: (970) 925-3008
e-mail: fer ~uson (~ ~arfieldhecht.com
e-mail: emu s seiman~.garfieldhecht.com
J. Lawrence Hamil, g4143
Hamil/Hecht LLC
140 E. 19th Avenue, Suite 600
Denver, Colorado 80203
Telephone: (303) 830-1383
Facsimile: (303) 830-1057
e-mail: lhamil~h-hllc.com
EFILED Document
CO Pitkin County District Court pth J1
Filing Date: Jul 1 2005 6:25PM MDT i
Filing ID: 6137580
Review Clerk: Roya Beklik
COURT USE ONLY
Case Number: 04 CV 208
Division: 1
This case is NOT subject to the
simplified procedures for court
action under Rule 16.1 because:
Claims against any party, exceed
$100,000 (See C.R.C.P. 16.1(b)(2)
and (c)).
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
IV.
TABLE OFCONTENTS
PRELIMINARY STATEMENT
INTRODUCTION
THE PROCEEDINGS BELOW
THE COMPLAINT'S FACTUAL BACKGROUND
THE LITTLE CLOUD SUBDIVISION
DEVELOPMENT DEFENDANTS' 1990 APPROVAL
FOR THE LITTLE CLOUD SUBDIVISION
1. Tucker's General Submission
2. General Submission Approval and
Tucker's Detailed Submission
3. Tucker's 1990 Approval
4. Lewis Contract/Lawsuit
BOCC ACTIONS LEADING TO RESOLUTION NO. 163-2004
1. Taylors' First Appeal
2. Resolution 019-2004 and the Farris Motion
3. Lewis' Second Access Driveway Permit,
the Taylors' Second Appeal and the Gleason Report
ARGUMENT
A.
B.
C.R.C.P. 106 STANDARDS OF REVIEW
PITKIN COUNTY'S LAND USE CODE
(i) General
(ii) Avalanche
(iii) Slope Stability
(iv) Rockfall
THE COUNTY DEFENDANTS EXCEEDED THEIR JURISDICTION/
ABUSED THEIR DISCRETION BY AGAIN IGNORING THE LAND
SE CODEAND 1041 LEGISLATION AND CONDON/NG
FURTHER DEVELOPMENT IN AN AVALANCHE ZONE AND
ROCKFALL AREA WITH UNSTABLE SLOPES AND UNRESOLVED
SUBSIDENCE ISSUES
PAGE
1
4
7
7
7
8
9
10
10
10
13
17
21
21
23
23
25
25
26
26
TABLE OF CONTENTS (cont.)
PAGE
THE EVIDENCE IN THE RECORD CONCLUSIVELY
DEMONSTRATES RESOLUTION NO. 163-2004 AND ITS
LINEAGE 1990 APPROVAL VIOLATE THE COUNTY LAND
USE CODE ^ND "1041" LEGISL^TION
CONCLUSION
38
43
iii
TABLE OF AUTHORITIES
CASES
Amer. Respiratory Care Svcs. v. Manager of Revenue, City & County of
Denver, 835 P.2d 623 (Colo. App. 1992)
Bruno v. Zoning Board of City of Philadelphia, 664 A. 2d 1077, 1080
(Pa. Commw. Ct. 1995)
Calvert County Planning Commission v. Howlin Realty Management, Inc.,
772 A.2d 1209 (Md. 2001)
Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 790 P.2d 827
(Colo. 1990)
Colorado Div. of Employment & Training v. Parkview Episcopal
Hosp., 725 P.2d 787 (Colo. 1986)
Denver Center for Performing Arts v. Briggs, 696 P.2d 299 (Colo. 1985)
Ebzerg v. City of Sheridan, 982 P.2d 1251 (Wyo. 1999)
Electric Power Research Inst.. Inc. v. Denver, 737 P.2d 822 (Colo. 1987)
Godson v. Town ofSurfsMe, 8 So.2d 497 (Fla. 1942)
Meyer v. Lakewood Country Club, 220 P.2d 371 (Colo. 1950
O.P. Corp. v. Thomas F. Lewis, 373 So.2d 929 (Fla. Dist. Ct. App. 1979)
Robi Enterprises, Ltd. v. Muhlenberg Township, 1982 WL 138 (Pa. D. & C.3d (1982)
Stature v. City and County of Denver, 856 P.2d 54 (Colo. App. 1993)
Stokes v. Board of Permit Appeals, 61 Cal. Rptr. 2d 181 (Cal. Ct.
App. 1997)
Travelers Indem. Co. v. Barnes, 552 P.2d 300 (Colo. 1976)
Van SicMe v. Boyes, 797 P.2d 1267 (Colo. 1990)
Williams v. Smith, 230 P. 395 (Colo. 1924)
PAGE
22
39
41, 42
22
22
22
39
21
40
22
39, 40
40
21
42
22
21,22
38
C.R.S.§ 24-65.1-101, etseq.
C.R.S. § 24-68-103
C.R.S. § 24-68.105(b)
STATUTES
iv
PAGE
passim
41
42
C.R.S. § 24-68-106(3)
P itkin County Land Use Code (1985-1993)
Pitkin County Land Use Code (2001)
38
passim
passim
SECONDARY SOURCES
13 Al~. JuR. 2D Buildings § 18
6 A.L.R.2d 960 (1948)
Knapp, D., Colorado Civil Procedure Forms and Commentary § 106.5 (2004)
PAGE
38, 39
39
22
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Plaintiffs Terry R. Taylor and Cynthia E. Taylor (collectively the "Taylors" or
"Plaintiffs"), by and through their co-counsel, respectfully submit this Opening Brief pursuant
to C.R.C.P. 106(a)(4), in support of their Eleventh Claim for ReLief, for review of the quasi-
judicial actions of The Pitkin County Board of County Commissioners ("BOCC"),2 which
enacted Resolution No. 163-2004 (''Resolution 163") (REX. 136; R. 1035~6),3 denying
Plaintiffs' appeal4 of the issuance of an access permit to Thomas E. Lewis ("Lewis"), a Miami-
based acquisitive developer/litigation contingent-contract buyer of the Little Cloud Subdivision.
BOCC's denial paves the way for substantial development, which is strictly prohibited by the
Pitkin County Land Use Code, and jeopardizes the life, health and safety of the community, as
well as the Taylors and their property.
I. PRELIMINARY STATEMENT
This is a case about a mountain and an appeal of a BOCC resolution that paves the way
for development of property marred by land use approvals in classic "1041" geologic hazard
~ Plaintiffs' Opening Brief addresses their Eleventh Claim for Relief in their First Amended and Supplemental
Complaint and Jury Demand ("Complaint") -- C.R.C.P. 106(a)(4) Review against the County Defendants. The
Complaint, at ~ 290(f), also pleads that BOCC has failed to date to investigate and undo the erroneous, unsafe and
illegal aspects of its prior land use approvals in Resolution No. 90-120.
-' Defendant Commissioners Dorothea Farrls, Patti Clapper, Michael C. Ireland, Jack Hatfield, and Shelly Roy,
named in their official capacities only, are referred to herein as "Commissioners." Defendants BOCC and the'
Commissioners are collectively referred to herein and in the Complaint as the "County Defendants."
~ Page references to the Certified Record on Appeal ("ROA") are identified herein as "R. ." Additionally, the
County Defendants were kind enough to also break down the Record by its exhibits, and Plaintiffs will also refer to
them as "REX "when the entire document is referenced or it is otherwise appropriate.
4 The Taylors prevailed on their first Pitkin County Land Use Code §§ 3-300-02 and 5-210-010 driveway permit
appeal (Resolution No. 019-2004, REX 134) See al~o discussion, infra, at 111. D. 2.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v, John R Tucker, Itl, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.1LC.P. 106 BRIEF
Page 2
areas. The Taylors are parties because their home has been sited, unprotected, in avalanche and
rockfall zones.
Plaintiffs are not here asking that this Court determine whether there is enough evidence
in the record to support the County Defendants' denial of Taylor's Second Appeal. Nor are
Plaintiffs necessarily focusing on the review or revisiting of the quality of some of COM
DEV's5 "factual determinations" as adopted by BOCC in Resolution 163, although an
understanding of these "t:actual determinations" and the Record are critical to demonstrate the
several, serious legal errors BOCC has committed. Plaintiffs respectfully request that this
Court find that the following errors of law occurred below:
· First, the primary listed policy of the Land Use Code6 is "to prevent the construction of
any improvement...which may subject any person...to natural or man made hazards...create or
increase the danger of natural or man made hazards which will effect other improvements
activities and lands." R. 1737.7 Resolution 163 directly contravenes this critical policy and
compounds prior violative approvals.
· Second, another primary land use policy is to prevent development that would "[s]ubject
other persons or the County to damages or expenses required to mitigate such hazardous
conditions. Id.8 Resolution 163 also directly contravenes this critical policy and regulation.
· Third, C.R.S. § 24-65.1-202(2)(a)(III) requires that, in geologic hazard9 areas, "all
developments shall be engineered and administered in a manner that will minimize significant
~ Pitkin County Cominunity Development Department ("COM DEV').
6 Pitkin County 1985-1993 Land Use, Art. 2, § 2-3, which is the Code applied to the underlying approval. The
2001 version states that the "County will prevent any use whirl may subject any person...to natural or man made
b~z~rds." Art. 2, ~ 2-80.
* Pitkin County 1985,1993 Land Use, Art. 2, § 2-3, 2-3. I, and 2-3.2; It also stated: UNo development or activity
shall be permitted in a geologic hazard area which would subject occupants or users...to hazardous
conditions...subject other persons or the County to dangers or expenses required to mitigate..." Art. 5, § 5-
401.2(b).
~ Pitkin County 1985-1993 Land Use, Art. 2, § 2.3-3.
Pitkin County District Court, State of Colorado
Terry& Taylor, et al. v. John R. Tucker, III, et aL, Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 3
hazards to public health and safety and to property as to geologic hazards." Resolution 16~
directly contravenes this Colorado "1041" policy, regulatory criteria, and law, and it also
compounds prior illegal approvals.
* Fourth, Resolution 163 impermissibly seeks to require Plaintiffs to devote a major
portion of Lot 1 and, hence, the value of their property, to install, at their expense, an
inadequate avalanche protection device, l° expend hundreds of thousands of dollars,~l and forgo
their rights in order to allow Lewis -- a speculative contract buyer -- to develop the dangerous
Little Cloud Subdivision. The Commissioners' misplaced deference to the stale 1990 Approval
led to the denial of Plaintiffs' appeal on these grounds and also results in an illegal ta~ng of
Plaintiffs' property without just compensation and would violate key policies and regulations of
the Land Use Code and C.R.S. § 24-65.1-101, etseq.
· Fifth, Resolution 163 incorrectly and illegally attempts to apply the County Land Use
Code and ad hoc criteria in an effort to correct or "mitigate" BOCC's erroneous and illegal
1990 Approval, which is inherently incapable of being corrected, mitigated, and/or squared
with any version of the Land Use Code or Colorado "1041" legislative scheme.
· Sixth, Resolution 163 violates both Plaintiffs' property rights and the County's own
Code and prior Resolution 019-2004 by ignoring specific provisions in the former (and new)
Code regarding "1041" hazards, including avalanche, rockfall, slope stability, and subsidence.
· Seventh, Resolution 163 directly contravenes the critical underlying policies and
specific "1041" hazard regulations and certain development prohibitions.
* Eighth, Resolution 163 undertakes to forgo requirements based on ad hoc criteria not
contained in the Land Use Code. Colorado law is clear that landowners are entitled to rely on
legislatively-adopted land use controls.~2 County Defendants' have illegally applied alternative
'~ C.R.S. § 24-65.1-103 defines "Geologic hazards" as a "geologic phenomenon which is so adverse to past,
current, or foreseeable construction or land use as to constitute a significant hazard to public health and safety or to
property" and includes, "avalanche, landslide, rockfalls and unstable or potentially unstable slopes."
~0 The County's independent expert, Andy Gleason, opined that -- "[t]he wedge shaped wall proposed by [Lewis'
expert] does not appear to have the necessary area between the access road and the wall to fully contain the
possible volume of avalanche debris, which would pose a hazard to the Taylor house." R. 0878. ,gee, discussion,
infra.
~ A rough estimate of the cost by Mr. Meats was $224,000, plus landscaping at an added cost of around $100,000.
REX 104.
~2 Squire Restaurant and Lounge, Inc. v. The City and County of'Denver, 890 P. 2d 164, 171 (Colo. 1994) (citizens
are entitled not to have settled expectations swept away), citing and quoting, Landgrafv. OS1 Film Products, 114
S. Ct. 1483 (1994).
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John t~ Tucker, IlL et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 4
and ad hoc criteria and political rationale, in erroneous deference to known "1041" mistake~,
which are ultra vires.~3
· Ninth, Resolution 163 erroneously ignores and excuses the "1041" requirements
contained in its own Land Use Code and in C.R.S. § 24-65.1-101, et seq.
· Tenth, Resolution 163 is premised on several findings so devoid of competent evidence
in the Record as to constitute legal error; for example, BOCC ignored its own independent
avalanche expert. ~4
Each of these legal errors warrants reversal of BOCC Resolution 163:'
H. INTRODUCTION
~u~piclon ~h~ i~ h~ ~ept ~o live~ into e~e~nitq.
~X 62.
The "city" w~ the "many happy homes" of Assn. Id. ~ese words -- ~ l~cally
written many ye~s ago in the Rocky Mountain Sun ~icle "Haunted to Etemi~" -- express
ve~ well what is at s~e in this appeal.
~e record reveals Plaintiffs ~d Co~ty Defenders (collectively ~e "Appe~ P~ies")
in fact f~dmenmlly agree that the initial approvab md ~er development at Little Cloud
arc mi~akes ~ ~at ~e la~er will compound p~t and sefiom I~d me (health ~d safety)
t3 For example, Commissioner Hatfield aptly asked how Lewis intended "to address the issue of avalanche along
the length of the road" (R. 0812) as required by Resolution No. 019-2004. REX 134. The "explanation" was:
"The problem with protecting the rest of the road is site constraints." R. 0813. Commissioner Hatfield voted
against the denial, but Resolution 163 simply excuses this avalanche hazard and any mitigation for it -- both in
violation of the Code.
~4 For example, an independent expert, Andrew Gleason, advised the BOCC that Resolution 163's avalanche
"protection wall" would not contain the avalanche flow of debris headed for the Taylors' Residence.
Pitkin County District Court, State of Colorado
Terry' tZ Taylor. et al. v. John R. Tucker. 1ll. et al., Case No. 04 CV 208-1
PI-,AINTIFIVS' OPENING C.R.C.P. 106 BRIEF ·
Page 5
errors. These errors resulted in the approval ora Planned Unit Development ("PUD") for Little
Cloud that is prone to several serious geologic hazards that threaten health, lif~, safety and
property. As such, this is a very unique C.R.C.P. 106(a)(4) appeal because, in the end, a
reversal of Resolution 163 would well serve important and compelling County interests, and
would also be completely consistent with the Commissioners' concerns and sentiments. The
County Defendants and the Taylors find themselves in this appeal, however, because five (5)
very busy commissioners simply (but erroneously) t~lt that they were hamstrung and, hence,
somehow powerless to undo the serious mistakes of a long-gone BOcc that -- by every single
account in the records below -- mistakenly relied upon Development Defendants'~5 "1041"
representations to approve a hazardous (and thus largely illegal) PUD on the edge of the
County's jurisdiction with the City of Aspen -- all done in violation of Colorado's "1041"
legislation as adopted in the County's own Land Use Code.
The BOCC's deference to its predecessors on a past board and this stale 1990 Approval
are misplaced. The Commissioners fbresaw that, as between the Taylors and Lewis (and
Tucker), they were merely and ultimately selecting-a-"litigation parmer.''j* .All parties knew
that ultimately Colorado's judicial system and processes would need to provide the legal
analysis and guidance to decide and resolve the complex -- albeit fascinating -- legal, political
~ "Development Defendants" are John R. Tucker, III ("Tucker"), individually and as President of Cottonwood
Gardens Development Corporation and Cottonwood Gardens Development Corporation ("Cottonwood").
~0 Commissioner Ireland: "We're just choosing our litigation partner, you know...We're picking our adversary in
this proceeding and that's okay..." R. 0592. The Iaylors bccame the "litigation partner" because immediately
after the Taylors won their first § § 3-300-02 and 5-210-010 appeal to the BOCC on February 1 I, 2004 (REX 134),
Lewis/Tucker fi]ed a takings proceeding (REX 97) with hearings held on March 10, 2004 (REX 94), claiming well
in excess of $3.0 million. REX 97.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. .lohn R. Tucker, IlL et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 6
and factual issues that have accumulated over the last t 7 yearsi? and culminated in this second
C.R.C.P. 106 appealIs -- which are critically important to the Appeal Parties, the other
defendants and the Aspen community as a whole.19
'lhe BOCC's errant deference to a stale approval and rather misplaced concera over
exposure to an expensive takings claim led to this reluctant resolution to deny the Taylors'
Second Appeal. Resolution 163 constitutes a clear excess of BOCC's jurisdiction and is the
result of serious legal errors because, among other things, Resolution 163 allows for the
extensive development of land that is subject to severe "1041" geologic hazards, including
dangerous avalanche zones and rockfall areas, complicated by slope stability and subsidence
issues. Resolution 163 will further subject current and future occupants and users to hazardous
conditions, and will impede the Taylors' ability to properly protect their home that is sitexl
squarely by Tucker (due to his errors) in a dangerous avalanche zone and rockfall area,
complicated by unstable slopes and unknown mine subsidence issues. Resolution 163 illegally
countenances development through known, highly dangerous, avalanche zones and rockfall
areas. This compounding of serious errors puts the community and the Taylors in further
jeopardy due to clearly avoidable risks -- all in contravention of the Pitkin County Land Use
~7 Annexed hereto as Exhibit "A" in the "Accompanying Appendix of Relevant Exhibits and Data" ("Appendix")
is a "Little Cloud Subdivision Timeline" fully referenced to the ROA, which is designed to act as an aid and
resource for the Court.
}~ Lewis was the first to appeal BOCC Resolution No. 019-2004 (R.EX 134) under C.R.C.P. 106(a)(4) when the
Taylors prevailed on their first appeal. R. 0917.
lo Commissioner Roy: "iF]rankly we have seen on outpouring by the community. Over a 1,000 people signing a
letter...." R. 0163; ROA 0449; REX 64 (1,019 "Friends of Shadow Mountain" signatures to preserve the future of
Shadow Mountain.)
Pitkin County District Court, State of Colorado
TerO, R. Taylor, et al. v, John R, Tucker, III, et al., Case No. 04 CV 208- I
PLAINTIFFS' OPENING C.R.C.P. 10fi BRIEF
Page 7
Code, BOCC Resolution 019-2004, and C.R.S. § 24-65.1-101, et seq. Plaintiffs respectfull~
submit that the BOCC, in its quasi-judicial actions leading up to and including the enactment of
Resolution 163, acted (and failed to act) in a legal manner. As such, it is altogether appropriate
and necessary that this Court reverse Resolution 163 and/or direct the County to review the
underlying land use approvals.2°
HI. THE PROCEEDINGS BELOW
A. THE COMPLAINT'S FACTUAL BACKGROUND
The Taylors' Complaint contains a very detailed and fairly exhaustive "General
Allegations" section, setting forth chronologically most of the pertinent factual background in
several titled sections. Plaintiffs incorporate by reference the Complaint's detailed factual
allegations herein and respectfully refer the Court to these sections; but will also rely herein on
the Record on Appeal.2~
B. THE LITTLE CLOUD SUBDIVISION
In 1985/i986, Tucker assembled four patented mining claims (R. 1610), which would
become the four lots and common areas of the Little Cloud Subdivision -- the price: $422,500.
R. 031 l. Development Defendants remain the owners of Lots 2, 3 and 4 of the Little Cloud
z0 It is critical to note that. since the 1990 Approval, Development Defendants have never developed a single lot,
and Lots 2, 3, and 4 have remained untouched despite the 1990 Approval that are now 15 years old. Hence, them
is nothing to tear down, and the matter is not complicated by intervening development by Development
Defendants.
2t The Record on Appeal -- carefully and dutifully prepared at gmat effort by Jcanette Jones -- is found in 5
binders containing 1,881 pages broken out into 235 separate exhibits. The ReA is organized chronologically by
BOCC meeting dates, followed by 17 "batches" of materials. REX 142. The Taylors and their counsel express
Their gratitude to Ms. Jones for her enormously efficient efforts and her graciousness.
Pitkin County DisU'ict Court, State of Colorado
Terry R. Tcg,lor, et al. v. John R. 7bcker, 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 8
Subdivision. 1L 0021, 0694, 1055. Development Defendants sold Lot I in 1998 to Gaston and
Nancy Alciatore for $1.1 raillion. R. 0311. The Alciatores improved Lot I with a 2-story
residence structure. In 2000, the Taylors purchased Lot 1 from the Alciatores22 and regularly
(but now haltingly and reluctantly) use it as their second home with their twin 6-year-old
daughters, Trent and Natalie, for several months per year (the "Taylor Residence"). R. 0021;
REX 49. Development Defendants' Lots 2, 3, and 4, the Taylor Residence and the PUD's
common areas constitute the "Little Cloud Subdivision." REX 182, 183. Little Cloud is
located just south of the Aspen Ice Garden and west of Koch Park at the foot of, and on the
lower slopes of, Shadow Mountain. R. 1101, 0338, 0955, 1043.
C. DEVELOPMENT DEFENDANTS' 1990 APPROVAL FOR THE LIYI'LE CLOUD
.SUBDMSION
1. Tucker's General Submission
In or around May 1988, Tucker and Cottonwood jointly filed a "Submittal for a Planned
Urban Dcvelopmenf' ("General Submission"). REX. 149, 231. Tucker's and Cottonwood's
development team included Wayne Ethridge ("Ethfidge'),23 a then-sitting County
Commissioner, (R. 0022, 1360), and land planner, (R. 0022), and Nicholas Lampiris
(~Lampiris"). Lampifis purportedly held a doctorate and was held out as the "consulting
geologist.' R. 1643. PiPkin County's 1988-1993 Land Usc Code § 5-401.3(0 required a
"geologist report' "with particular emphasis on evaluating and predicting the impact of serious
geological or haT~rdous conditions on the proposed land use chan~cs and devclopmems.' R.
As pointed out by counsel, the Taylors were represented by counsel -- Brooke Peterson. R. 0561.
REX 148. Ethridge did tand planning under the company name "Groundwork." R. 1647.
Pitkin County District Court, State of Colorado
Ter~. R. Taylor, et aL v. John R, Tucker, 11I, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 9
1758. (Emphasis added). As set forth below, Larnpiris and Tucker failed to comply with this
rule.
2. General Submission Approval and Tucker's Detailed Submission
The PUD received a general submission approval from the BOCC at a hearing on
January 24, 1989, and pursuant to BOCC's February 14, 1989, Resolution Number 89-18.
ILEX 163; R. 455-457. On December 29, 1989, the Development Defendants, through
Etheridge,24 submitted the "Detailed Submission for Little Cloud Subdivision" ("Detailed
Submission"). REX 233.
3. Tueker's 1990 Approval
The BOCC considered Tucker's Detailed Submission and final plat approval
application at hearings held on May 15, 1990, and June 12, 1990. R. 1018. On June 12, 1990,
the BOCC approved Resolution Number 90-120, which contained a number of conditions of
approval for the detailed submission and final plat for the Little Cloud Subdivision/PUD (the
"1990 Approval"). REX 132. Among the conditions of the 1990 Approval was that
Development Defendants must "adhere to recommendations made by [] Lampiris..." and that
"Ia]Il material representations made in the application shall be adhered to." R. 1021. It is
critical to note that Resolution 90-120 contained a flaw in that it omitted the recommendations
tbr a berm/trench feature for Lot I. REX 132; R. 1019, 0089.25
24
Development Defendants were also represented by local attorney Gary A. Wright. REX 169. Moreover, in
1993 Tucker sued Ethridge (93CVI43-3) (REX 193-I97), lnaking the instant case the fourth Little Cloud lawsuit.
Lewis has also filed a C.R.C.P, 106(a)(4) case against the County Defendants. See, R. 0917.
25 Thus, the Alciatores built thc Taylor Residence sans even this inadequate defense. REX 58 -- this berm/trench
~'would not have provided sufficient protection against the 'design magnitude' 100 year avalanche..."
Pitkin County District Court,. State of Colorado
Terry R. Taylor, et al. v. dohn R. Tucker, 11t, et aL, Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 10
On April 5, 1991, Development Defendants executed and filed for recording a Plat f(~r
the Little Cloud Subdivision/PUD, along with a Subdivision Improvements Agreement and
Declaration of Covenants. REX 182, 183.
4. Lewis Contract~,awsnit
On or about July 25, 2000, Lewis entered into a Contract to Buy and Sell Real Estate
(hereinafter "Lewis Contract':) to purchase Lot 2 from Development Defendants. R. 1395.
Lewis' Contract price for Lot 2 was $1,295,000.00. On or about October 12, 2000, in
connection with the Lewis Contract, Lewis commenced an action against Development
Defendants, styled Lewis v. Tucker. et al., Case No. 00CV287-1, wherein Lewis sued
Development Defendants for causes of actions sounding in breach of the Lewis Contract,
breach of the Subdivision improvements Agreement and Plat, fraudulent misrepresentation and
negligent misrepresentation. REX 198. Development Defendants countersued. REX 199.
This division presided. Lewis later agreed to contingently settle the Lewis/Tucker lawsuit by
agreeing to purchase Lots 3 and 4, in addition to Lot 2.
D. BOCC ACTIONS LEADING TO RESOLUTION NO. 163-2004
1. Taylor's First Appeal
On July 8, 2002, just weeks after a June 19, 2002, "Stipulated Motion to Vacate Trial
Date and Stay Proceedings" Agreement, in Lewis v. Tucker, et al., Lewis executed and submitted
an Access Driveway Development Permit with COM DEV. R 1053. On September 24 and 25,
2003, respectively, the Pitkin County Engineer, Bud Eylar ("Eylar'), and Lance Clarke
("Clarke") of COM DEV approved I,ewis' First Driveway Permit -- which included a comment
?itkin CounD' District Court, State of Colorado
Terry R. Taylor, et al. v. John t~ Tucker, III, et al., Case No. 04 CV 208-1
PLAINTIFFs' OPENING C.R.C.P. 106 BRIEF
Page l 1
that a "[r]ockfall mitigation plan required before construction can commence" ("First Driveway
Permit"). R. 1054.
On October 16, 2002, the Taylors timely filed an appeal of the issuance of the First
Driveway Permit, in accordance with Pitkin County Land Use Code Sections 3-300-02 and 5-
210-010, and requested a hearing befbre the BOCC. REX 8, 217 (216). Another neighbor, Jay
Kuhne, formally joined the Taylors' First Appeal. REX 214, 217. The Taylors contended,
among other things, that the initial approval "granted by the BOCC was flawed and the
approval ignores ecological, environmental and geological hazards." The Taylors retained two
expert/consultants: Arthur 1. Mears ("Mr. Meats") (Avalanche/Natural Hazards Consultant)
and David A. Cushman (Engineering Geologist/Edward O. Church, P.E., Geological Engineer)
to investigate and provide expert testimony and reports to the BOCC. See, e.g, REX 217, 210,
212,213.
Mr. Mears is a recognized expert in avalanche hazards (R. 0076), and is actually cited in
Pitkin County's 1985-1993 Land Use Code as a resource for evaluating avalanche hazards here.
R. 1752.26 Mr. Mears determlncd that Lot 1 (the Taylors' Residence) is located on thc
boundary cusp of red (high hazard) and blue (moderate hazard) avalanche zones. REX 218,
236. Additionally, Mr. Mears found that the driveway "will also be overrun by avalanches" and
approximately 350 feet of the proposed driveway access to Lots 2, 3, and 4 crossed avalanche
zones. R. 0091.27 Pitkin County 1985-1993 Land Use Code § 5-401-2(d)(2) provided that
2~ Citing to Snow Avalanches in Aspen Area, Pitkin County Colorado (Colorado Geological Survey, Art Meats,
t975, Sp. Pub. #7). R. 1752.
27 Pitkin County's (currenl) Land Use Code § 3-80-050(A)(3)(I) provides that roads "shall avoid avalanche areas."
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al, v. dohn R. Tucker, HI, et al., Case No. 04 CV 208-1
PI.,AINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 12
"development shall not be accessible only by crossing dangerous [avalanche] areas." R. 1751.
On January 15, 2003, Mr. Mears issued a report finding that:
The most feasible tbrm of mitigation consists of replacing the
current Little Cloud access road with a deep, wide trench as
shown on figures 2 and 3... In order to protect all of the house
and entry area and most of the la.m/play area on the east of the
house, either mitigation system will be approximately 160 feet
long.
REX 18; R. 0094. On February 12, 2002, Meats testified to the BOCC28 that:
As you know, I have consulted for the County before, and the
reason I bring that up, is because I am aware that the County is
concerned about the safety of residents in the County. So I want to
cut through some of the .procedural considerations that we have
gone through and point out that Lot I is exposed to avalanches, in
my opinion, and I don't think there is much question about that. 1
think everyone here agrees that it's exposed. Because it's
exposed, it needs protection. The protection that is available is not
ideal, by any means. But the protection, the way I see it, has to
take place at the grade of the access road. If the access road is
used, for avalanche protection, it can't be used as a road to access
Lots 3 and 4. It seems to me that these facts are fairly simple and
straightforward. There is no other way that I see, to protect the
building.
R. 0070.
At each opportunity presented to COM DEV start; Clarke (and Eylar) recommended
denial of the Taylors' First Appeal. 29 In defending COM DEV's issuance of Lewis' driveway
permit and the 1990 Approval, Eylar (the County engineer who was involved in the 1990
*-~ The BOCC held hearings on the Taylors' First Appeal on Novcmber 20, 2002, February 12, 2003, July 9, 2003,
August 14, 2003, January 27, 2004, and February 12, 2004. REX 4, 14, 25, 42, 73, 85. The Taylors, Lewis and
Development Defendants presented arguments, expert testimony and evidence concerning the geological, legal and
mitigation issues raised by the Appeal Parties and Development Defendants. Id.
REX 6, 8; R. 0087, 124, 0300, 0624.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.ILC.P. 106 BRIEF
Page 13
Approval) responded to the Taylors' First Appeal and suggested to the BOCC that the Taylo~s
had illegally consLructed an access gate. REX 201; R. 1414. This caused the BOCC to stop
processing the Taylors' First Appeal. In fact, Eylar was found to be wrong, as the Taylors'
access gate was always legal. REX 215.
At the February 12, 2003, hearing (REX 14), the BOCC directed staff to prepare on
analysis of the haTzrds, including: (i) avalanche, (ii) protection of the Taylors' Residence, (iii)
lack of berm, (iv) water and toyic materials, (v) wildlife, (vi) slope stability, (vii) rock retaining
walls, (viii) tunnels and caves, (ix) trails, and (x) environmental hazards. See, REX 32. On
June 26, 2003, Clarke stated that COM DEV "will not be producing a written report in response
to the BOCC filing directions...it was determined that County staffdoes not have the expertise
to analyze water quality, avalanche, rockfall and similar hazards and that there was no County
thnding to consult outside experts." REX 35.30
2. Resolution 019-2004 and the Farris Motion
At the January 27, 2004, BOCC final special hearing on the First Appeal,
Commissioner Jack llatfield moved to grant the Taylors' First Appeal with conditions,
including: "that there is further mitigation relative to rockfall and avalanche..." R. 0584. "[I]t
been demonstrated by the record that its, that there's a danger of red zone avalanche..." R.
0586. Clarke acknowledged that, if another permit was issued, such a new permit "would have
to show avalanche and rocldhll mitigation for the road." R. 00589. The BOCC hearing was
adjourned so as to allow staff time to draft findings of fact relative to the BOCC's findings and
~0 This is a critical admission by COM DEV as to its lack of expertise to deal with the issues they were in fact
tasked to deal with in Resolution 163. Moreover, the one expert COM DEV did contact was ignored.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. dohn R. Tucker, II1, et aL, Case No. 04 CV 208- I
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 14
lengthy deliberations' on Commissioner Hatlield's motion to grant the Taylors' First Appea~.
REX 73.
At a regular February ! 1, 2004, BOCC hearing, the BOCC approved Resolution 019-
2004, which had been drafted by COM DEV staff on the BOCC's specific directions and
findings. R. 0600. Resolution 0.19-2004, recorded on February 26, 2004, provides in pertinent
part as follows:
The BOCC finds that additional information....conclusivel¥
demonstrates that portions of the Little Cloud Subdivision access
driveway are within rockfall and avalanche hazard areas to a
much greater extent than known or represented at the time of the
original subdivision approval...
REX 134. (Emphasis added). As will be demonstrated in this appeal, Resolution 163 ignores
these conclusive demonstrations.
The BOCC further found in revoking Lewis' First Driveway Permit that: "The
mitigation proposed in the access permit.., is found to be inadequate." Id. Resolution 019-2004
concluded:
The BOCC further finds that health and safety concerns
necessitate that if there was any further development of the
subdivision that additional l~a~ard mitigation be designed to
provide appropriate rockfall and avalanche hazard mitigation for
the residences in the subdivision and for users of the access
roadway."
(Emphasis added),
~ As will be demonstrated herein, the BOCC ignored its own Resolution 019-2004 findings and directives in
entering. Resolution 163.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. Jo/mR. Tucker, II1, etak, Case No. 04 CV 208-1
PLAINTIFFs' OPENING C.R.C.P. 106 BRIEF
Page 15
The BOCC's meetings, befbre the adoption of Resolution 019-2004 on Janyary 23,
2004, are instructive. Commissioners, and specifically Commissioner Farris, expressed grave
concerns about representations relating to the 1990 Approval. For example, in addition to the
February 12, 2003, BOCC directive to staffto review virtually all aspects of Little Cloud (REX
32, 35), the minutes from the BOCC's August 14, 2003, provide:
Also [Commissioner Farris] continued, she would further like to
investigate the issue of whether or not there were
misrepresentations given previously, whether purposely or not
purposely. _She said that she believes that needs to be looked into
to pursue whether or not what was approved was based on actual
fac__~. ("Farris Motion").
R. 0183. (Emphasis added). BOCC Chairman Hatfield stated -- regarding the Farris Motion --
that the issue befbre the BOCC was only the roadway appeal, but the minutes conclude:
Chairman Hatfield said that he thinks that the other issue or'
misrepresentations during the original approva'l is huge_ He said
that in his mind these are separate issues t?om the [fa'st driveway]
permit appeal.
R. 0185. (Emphasis added). Commissioner Roy commented as well about the Farris Motion:
[/toy] stated, for thc record, that her personal feeling on this is
that she finds herself in an unfortunate position. She said that she
has to honor what is decided by prior Boards. But, if that
decision was made based on untruths,32 she believes she could
overturn that.
R. 0184-5.
On January 27, 2004, after voting to grant the Taylors' First Appeal, Commissioner
Farris persisted in the Farris Motion:
32 As demonstrated below, the BOCC has committed serious legal error in believing and holding that "untruths" or
actaal fraud are required for it to review the 1990 Approval -- it is in fact merely mistake. See, discussion at § IV.
D. infra.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. dohn R. Tucker, I11. et al., Case No. 04 CV 20g-1
PLAINTIFFS' OPENING C.ILC,P. 106 BRIEF
Page 16
[II have something to say on this issue belbre we're done. We
have a lot of people, a lot of discussion that brought up the fact
that the process requires additional scrutiny. I have a statement to
make and I would like to know if you will accept it as a motion if
there's someone who seconds it I would like it to be a motion.
I would like to direct our attorney to review the approval process,
the original approval process for this subdivision, to see if the
application met the required scrutiny for approval. Or, if there
was inappropriate or a flawed approval process or inappropriate
behavior thus making the approval invalid.
I believe there are a lot of people who believe that that occurred.
That it did not get the scrut--that would be my motion. I believe
there are a lot of people as evidenced by the friends [of Shadow
Mountain] who came in and spoke and the discussion during the
last three hearings that indicate that there is a feeling of scrutiny
of that area for development was not thorough. And, there are
those who believe that the process had some flaws. I would like
to know if anyone agrees that John [Ely] should be directed to
look into it.
The Commissioners' discussion that followed (R. 0609-0622) provides some insight
into the conundrum they felt they faced (and apparently, eventually, reluctantly and erroneously
gave into) -- but all the Commissioners agreed that Little Cloud was a gmat concern and the
1990 Approval was a mistake:
Commissioner Clapper: "I think it's a bad place for a
sub&ws~on .... 0608-9.
Commissioner Ireland: An investigation could help them "learn
from mistakes." (R. 0611) "How did the [1990] board make this
mistake?" R. 0612.
Commissioner Roy: "[Farris'] words to me they resonated with
me... I have always hated this subdivision...R. 0613.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. dohn R. Tucker, Ill, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 17
The Taylors have repeatedly requested that the County Defendants take up the Farris
Motion. See, e.g., REX 117, at R. 0928; REX 107 at R. 0575-6. As set forth below, the
Taylors have also pointed out at that basic common law principles of fraud and
misrepresentation do not apply and that the County Defendants only need to find mistakes (not
"untruths") in the application and apply the Land Use Code. The Commissioners have
"conclusively" found these mistakes in Resolution 019-2004 -- and the Land Use Code requires
reversal of Resolution 163 and indeed, much of the 1990 Approval.
It is clear that Commissioner Roy's conundrum of"honoring" a past Board's erroneous
action (R. 0184-5), has to date led to an illegal failure and refusal by the County Defendants to
pursue the Farris Motion. Instead, their enactment of Resolution 163 results in a continuing and
serious compounding of the dangers caused by the 1990 Approval in excess of BOCC's
jurisdiction.
3, Lewis' Second Access Driveway Permit~ the Ta¥1ors' Second Appeal and the Gleaso,,
Report
On March 19, 2004; Lewis signed an application form for an Access Driveway Permit
which was stamped "received" by the COM DEV April 7, 2004 ("Lewis' Second
Application"). cf. REX 1052, 1070. On July 16, 2004,33 Clarke and Eylar approved "Lewis'
Second Driveway Permit" subject to:
33 First, COM DEV's files have no documents to indicate that either Clarke or Eylar (or their respective staffs)
performed any analyses or that they had met with Lewis or his experts. Second., in letters [o Clarke dated August
24, September 20, and October 4, 2004, the Taylors requested that COM DEV provide any internal staff analyses
for the Second Driveway Permit -- and nothing was provided. ..T. hird, Clarke confirmed that there were not
numerous meetings between Lewis and his experts and with COM DEV, Eylar or him, and that there are no CO-'-~
DEV docmnents relating to any internal analysis or to any meetings. See, REX 107, at IE 0868.
Pitkin County District Coqrt, State of Colorado
Terry R. Taylor, et al. v. .John R. Tucker. [I1, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 18
· all representations in the April 23, 2004, Letter and Lewis' February 10, 200~,
Letter,
· $100,000 escrow for Lot 1 avalanche mitigation, and
· "bruge (sic) nef' construction details to be approved by county engineers.
R. 1052. Lewis' Second Application was "approved subject to the representations in attached
letters of April 23, 2004, and February 10, 2004 from Curtis Sanders.''34 R. 1073; R. 1074-76.
On August 5, 2004, the Taylors filed an appeal of the issuance of Lewis' Second
Driveway Permit ("Taylor's Second Appeal") (REX 117), which resulted in additional
submissions by Lewis and Taylor to the BOCC. See, e.g., REX 118, 119, 120, 121, 123, 126,
102, 103, 104, 105, 106, 107, 111,112, 113, and 114.
In a COM DEV memorandum to the BOCC, dated November 23, 2004 (but issued
November 17, 2004) it was indicated that the BOCC had directed COM DEV to contact the
Colorado Geological Survey "to independently review the materials" submitted by the Taylors'
and Lewis' experts in connection with Lewis' Second Driveway Permit and the Taylors'
Second Appeal. R. 0757. On November 9, 2004, Andy Gleason, Geologist/Avalanche
Specialist lbr the Colorado Geological Survey State of Colorado issued a report to COM DEV
for the BOCC. REX 108. Mr. Gleason's November 9, 2004, independent report to the BOCC
stated in pertinent part, on the avalanche hazards, that:
Both avalanche experts (Mears and Schaerer) agree that the
Taylor house is within an avalanche path and needs some type of
mitigation to protect it from future avalanche occurrences. Both
sides also agree that some type of rockfall mitigation is prudent.
Where they differ is the type, extent and size of the avalanche
mitigation device and the amount of area needed for the volume
34 Curtis Sanders, ofKrabacher & Sanders, P. C., represented Lewis in the appeals to the BOCC below.
Pitkin Count), District Court, State of Colorado
Terry R. Taylor, etak v. John R. Tucker, Ili, etak, Case No. 04 CV 20g-I
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEI*
Page 19
of avalanche debris expected with the occurrence of a design
avalanche.
After reviewing all the reports on the size of the avalanche path,
the expected volume of a design avalanche and the proposed
mitigation techniques, ! believe that the argumentsss by Arthur I.
Mears are more robust than those of Peter Schaerer. Specifically,
the wedge shaped avalanche mitigation wall proposed by
Schaefer does not avvear to have the necessary area between thc
access road and the wall to fully contain the possible volume of
avalanche debris, which would pose a hazard to the Taylor
house,so This appears to be tree even with Schaerer's proposed
cutting of the bank behind the wall.
Id. at R. 0878. (Emphasis added). Mr. Gleason's November 9, 2004, report to CaM
DEV/BOCC also touched on the rockfall hazards:
It appears that the rocks in the potential starting zone are larger
than the rocks that have already fallen close to the site.
.Some of the proposed rockfall mitigation devices seem to be
incompatible with the forces associated with a design avalanche.
(Emphasis added).
Id. at R. 0879.
On November 23, 2004, a special two-hour meeting was to be held before the BOCC to
hear the Taylors' Second Appeal. REX I01. Mr. Gleason's report was never addressed by
CaM DEV stall' and the BOCC, other than to include it in the November 17, 2004, CaM DEV
memorandum and packet, which, as per usual, recommended denial of the Appeal. It was,
ss Lewis retained the dedicated services of three avalanche experts, Beat Van Allmen and Peter Lev of Alpentech,
as well as Pcter Schaefer. Rex 3 I, 33.
s6 See, Mr. Mears who confirms this several ways. See. e.g., REX 60, 46. ("I am certain that sufficient storage
volume to contain the avalanche snow does not exist between the proposed access road, fill slope, and the house.")
(Emphasis in original). Mr. Meats -- R. 0306.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et at v. John R. Tucker. III, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 20
however, addressed by Mr. Mears. R. 0771.37 Commissioner Ireland observed, following 'a
brief executive session, that he did not know how the BOCC would decide the Taylors' Second
Appeal. K. 028. Commissioner Ireland, nonetheless, made a motion to consider directing staff
to draft a resolution based on a record in support of "its position" so that the BOCC could then
consider whether o_~r not to adopt or deny the staff's recommendations in the next open regular
BOCC session. R. 0829, 0831. The motion passed 3-1, with Commissioner Hatfield voting
*'nay," as he believed that the directive gave staff the wrong direction (a denial) altogether as
"substantiated by the record." R. 0831.
On December 9, 2004, the Taylors submitted to the BOCC their proposed resolution
granting the Taylors' Second Appealfi8 REX 245, 246. This never made the BOCC's packet.
REX 130. On the late afternoon of Friday, December 10, 2004, because the Taylors' Second
Appeal was a December 15, 2004, BOCC regular meeting agenda item -- COM DEV sent out
its packet, which included only its COM DEV's draft resolution denying the appeal. REX 130.
3' Mr. Mears testified about Gleasons' report:
"Andy is the member from the Colorado Geological Survey who reviewed my
report and Peter Schearer's report and it was a request by Pitkin County to do
that and a good idea; you need to have an impartial opinion on this. I believe
I'm impartial too. And I'm sure you all believe that I don't care one way or
another if the Little Cloud Subdivison goes in. 1 don't live in Aspen, it's not
by business, but Andy Gleason is clearly an impartial person on that. Andy
has considerable experience in this area. tlc has wide experience in this
particular snow climate, he knows what can happen, be is doing PHD research
right now, as he is with the Colorado Geological Survey, on file snow pack of
Colorado and some of its characteristics....And I agree obviously, with Andy's
point of view, which suggests tlaa/yes, there is isn't enough room, which is
what I tried to show you with these diagrams and what I've been discussing."
R. 0771. The BOCC and its Resolution 163 ibmore Messrs. Gleason and Mears on this issue.
38 PlaintifFs' counsel had received permission from the Count)' Attorney to submit a counter proposed resolution,
granting tile Taylors' Second Appeal; R. 0991,0992, and 0993.
Pitkin County District Court, State of Colorado
Terry R. Too,lot, et al, v. John R. Tuclter, ltl et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 21
On Saturday, December 11, 2004, the Taylors' counsel sent an e-mail to the County Attome~
objecting to the proposed resolution of denial. REX 247. On December 14, 2004, the Taylors
submitted a formal letter to the BOCC outlining in greatcr detail their objections to the
proposed resolution. REX 248. See also REX 247.
On December 15, 2004, the BOCC, on perceived procedural grounds, rejected even
considering (1) the Taylors' proposed resolution, or (2) the Taylors' December 14, 2004, letter
objecting to COM DEV's proposed resolution. REX 0987. Instead, Commissioner Farris (as
Chair) called for an immediate vote denying the Taylors' Second Appeal (R. 0986, 0988, 0989),
but other Commissionem kindly prevailed upon the Chair to allow some discussion, but limited
it to COM DEV's proposed resolution. R. 0990. A vote was then taken and COM DEV's
proposed resolution was approved by a 3-1 vote -- Farris, Clapper and Ireland voted -- yea,
Hatfield voted -- nay and Roy abstained.
IV. ARGUMENT
A. C.R.C.P. 106 STANDARDS OF REVIEw
The standard of review under Rule 106(a)(4) is clear: "Rule 106(a)(4) requires district
courts to set aside final orders of an administrative agency if the agency, in the exercise o£
quasi-judicial authority, exceeds its jurisdictions or abuses its discretion." Electric Power
Research Inst., Inc. v. Denver, 737 P.2d 822, 825-26 (Colo. 1987).
Where, here, a governmental body enters a decision based upon a misapplication of its
own law, the court must reverse that decision. Stature v. City and County of Denver, 856 P.2d
54, 57 (Colo. App. 1993) ("A reviewing court is required to set aside the final orders of an
administrative agency if the agency applied an erroneous legal standard"); Van ~icMe v. Boyes,
Pitkin County Distric! Court, State of Colorado
Terry R. Taylor, et al. v. John R. T~wlcer, 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 22
797 P.2d 1267, 1274 (Colo. 1990)39 (reviewing court must consider whether the body or officer
misconstrued or misapplied the law); Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 790
P.2d 827, 830 (Colo. 1990) (court reversed municipality's misinterpretation of allowable uses
in RA-1 zone); Colorado Div. Of Employment & Training, Dept. t~'Labor & Employment v.
?arkvie~: Episcopal Hosp., 725 P.2d 787, 791 (Colo. 1986) ("Administrative construction of a
statute should not be adopted where a different construction is plainly required, or where the
result reached by the agency is clearly inconsistent with legislative intent"); Tra~,elers Indem.
Co. v. Barnes, 552 P.2d 300, 303 (Colo. 1976) ("[w]hen an administrative official misconstrues
a statute and issues a regulation beyond the scope of the statute, it is in excess of administrative
authority granted"); Meyer v. Lakewood Country Club, 220 P.2d 371,372 (Colo. 1950) (district
court may set aside agency decision based on "unwarranted inferences or improper application
of the law'~'); Amer. Respiratory (;are Services v. Manager of Revenue, City & County of
Denver, 835 P.2d 623, 625 (Colo. App.1992) (district court's C.R.C.P. 106(a)(4) decision
reversed and underlying governmental decision vacated on grounds that it improperly construed
a taxation ordinance); e.g., Denver Center for Performing Aria' v. Briggs, 696 P.2d 299 (1985)
(in reviewing a decision pursuant to Rule 106(a)(4), the interpretation of language is a question
of law to be resolved by the court); accord D. Knapp, Colorado Civil Procedure Forms and
Commentate' (1996), {}106.5 (C.R.C.P. 106(4)(a)).
3~ "iT]he difficulty a certiorari Plaintiff faces in meeting this standard may be alleviated somewhat by the fact that
the reviewing court may consider in determining the existence of an abuse of discretion, whether the BOCC or
officers misconstrued or misapplied thc law." Knapp, Debra 13 Colo. Prac. Civil Procedure Forms and
Commentary, § 106.5 (2004) (citing Van Sickle v. Boyes).
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. dohn R. TuckEr, II/, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.ILC.P. 106 BRIEF
Page 23
The Record is clear, even applying the strict standards of review under Colorado law,
that the County Defendants made several serious legal errors, and thus abused their discretion,
exceeded their jurisdiction, and acted ultra vires by functioning outside of and in a manner not
authorized by the County's land use ordinances, and by substituting ad hoc and subjective
criteria that are neither legal nor consistent with County and State law.
B. PITKIN COUNTY'S LAND USE COOF,
A recitation and discussion of some of the County Defendants' relevant controlling
Pitkin County Land Use Code provisions is necessary to demonstrate the BOCC's several and
serious legal errors.
(i) General
Pitkin County 1985-1993 Land Use Code § 5-401 ~, was applicable to
all lands within the unincorporated areas ~f Pitkin County, as provided in subsections (1), (2),
(3), and (4) of the Land Use Code § 5-401.1. R. 1750. Section 5-401.2(b) provide that:
No development or activity ~hall be permitted in a geologic
hazard area which would subiect occupants or users of the area to
hazardous conditions; create or worsen such conditions affecting
other developments, activities, and lands; subiect other persons or
thc County to dangers or expenses required to mitigate such
hazardous conditions, respond to emergencies created by such
conditions or rehabilitate the improvements, activities and lands.
R. 1752. (Emphasis added). Similarly, the 2001 Land Use Code § 3-80-030, provides "General
Standards" applicable to all Areas of Local and State/1041 Environmental Hazard Areas,
including that:
C. Development Prohibited: Development is prohibited within
an Area of Local and State Interest/1041 Environmental Hazard
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. ~. John R. Tucker, I11, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 24
Area iff (1) Site planning and engineering techniques cannot
completely mitigate hazards to public health, safety and welfare.4°
(2) Development subjects other persons or the County to dangers
or expenses required to mitigate ho?2rdous conditions, respond to
emergencies created by such conditions or rehabilitate
improvements and lands.
§ 3-80-030(c)(1)(2). (Emphasis added). Clearly, Resolution 163 violates both versions and all
subsections because it (1) allows otherwise prohibited development and in areas that cannot be
"completely mitigated," and (2) requires the Taylors to undertake to attempt to protect their
home with Lewis' suggested wedge wall that the BOCC's own expert, Mr. Gleason, says is not
adequate, agreeing with Mr. Mears.
40 Ireland, on January 27, 2004, spoke forcefully to this issue:
"The guy who's not represented at the hearing is the guy who's houses sitting
at the house and he doesn't know squat from avalanche because there isn't a
word in his or her native language for the word avalanche, you know. And the
guy who's delivering pizza I don't think, and I've said this before, I don't think
we're going to have a system where he signs a waiver before he runs off with
the pizza into the avalanche zone waving his right to be buried. We're The
guys that protect those people and those values."
And yeah, you do make trade offs. You got to have an Interstate 70
somewhere so there's a risk. But, that's because you have to do it. You don't
have to do this particular driveway in this particular manner. There is no
compelling societal interest in the cheapest possible driveway through a multi-
million dollar subdivision, i was up there. And you know Jack [Haffield]
made a great point about the rock and the curve. You 'know, my -- I err,
believe I have an obligation to err on the side of caution. And the if we get
sued and they're able to, you know, force us to allow the driveway the way it is
I'm willing to accept that chance. And I don't harbor any resentment against
whoever is suing, either side or if you combine forces. I don't really. I
understand that's an economic issue. I feel I want to error on the side of public
safe~.
R. 0593-4. (Emphasis added). For reasons still unknown, Commissioner Ireland cast the final 3-1 vote on
Resolution 163. -
Pitkin County District Court, State of COlorado
Terry R. Taylor, et aL v. John R. Tucker, IlL et aL, Case No, 04 CV 208-!
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 25
(ii) Avalanche
Pitkin County's 1985-1993 Land Use Code § 5-401.2(d), Avalanche Areas, which
controls Little Cloud, provided that:
(1) The applicant shall show that the proposal is either located in
a site free from avalanche danger or is adequately protected by
avalanche defenses or structural provisions. (2) Proposals shall
.not result in a high concentration of population or activity in areas
during periods of avalanche activity and development shall not be
accessible only by crossing dangerous area~q.
R. 1751. (Emphasis added). Furthermore, Pitldn County's 2001 Land Use Code § 3-80-
050(A)(1), Avalanche Area~ provides: "Development is prohibited within High Hazard
Avalanche Zones." Resolution 163 completely contravenes these old and new land use
provisions.
(iii) Slope Stabili .ty
Pitkin County's 1985-1993 Land Use Code 5-401.2(0, Potentially Unstable Slopes,
provided:
(1) Any development proposal in a potentially unstable slope area
shall evaluate the severity of thc slope instability. In extremely
hazardous areas development shall be discouraged. In areas of
moderate hazard, development shall only be permitted if the
applicant assumes the cost of engineering design and constmctioa
stabilization and maintenance measures...
R. 1753. (Emphasis added.) Pitkin County's 2001 Land Use Code § 3-80-050(C)(2)
Potentially Unstable Slopes, provides: "Development is prohibited on slopes greater than thirty
p rcent (30¼)...
Pitkin County District Court, State of Colorado
Terry' R, Taylor, et aL v. John R. Tucker. II1, et aL, Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.I~C.P. 106 BRIEF
Page 26
(iv) Rockfall
Pifldn County's 1985-1993 Land Use Code § 5-401.2 (g) Rockfall Area, provided:
(l)Swacmral construction associated with residential ...
development shall be prohibited in rockfall areas.
R. 1754. (Emphasis added). Pitkin County's 2001 Land Use Code §3-80-050(D), Rockfall
Areas, provides that: "(1) Development is prohibited in Rockfall Areas....' R. 1550.
Resolution 163 impermissibly and per se violates all of these critical policies and
"104l" considerations laid out in the Land Use Code, as well as the specific "1041' provisions
in the old and new codes on the geologic hazards implicated here. The severe "1041" mistakes
made in 1988-1990 cannot be corrected by the BOCC's further ignoring of the Land Use Code,
Resolution 19-2004, and C.R.S. § 24-65.1-101, et seq, with ad hoc mitigation "criteria" rejected
as inadequate by its own independent expert from the Colorado Geological Survey Resolution
16Ys attempt to do so is illegal and ultra vires.41
C. THE COUNTY DEFENDANTS EXCEEDED THEIR JURISDICTION/ABUSED THEm
DISCRETION BY AGA/N IGNORING THE LAND USE CODE AND "1041'
LEGISLATION AND CONDONING FURTHER DEV~ELOPMENT IN AN AVALANCHE
ZONE AND ROCKFALL AREA WITH UNSTABLE SLOPES AND UNRESOLVED
SUBSIDENCE ISSUES
Tucker's consultant, Dr. Lampiris, provided a single letter/report to Ethridge dated June
6, 1988 (the "Lampiris Letter") (REX 232; R. 1643-45), in which Lampiris represented that he
had "completed [his] ~eologic investigation for the purposes of House Bill 1041..." Id.
Thc "1041" hazard of ground/mine subsidence is discussed below.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John l~ Tucker, Ill. et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 27
(emphasis added).42 Tucker's Genera] Submission, Section 5-100.1, represented to the County
that:
As evidenced by the geologic report prepared by Dr. Nicholas
Lampiris...the property contains stable soils and exhibits good
geologic characteristics. The homesites have been selected, based
in part, on Mr. Lampiris' report, and all sites and residences will
be designed in accordance with Dr. Lampiris' recommendations.
Specifically, Dr. Lampiris' report mentions the possibility of
rockfall affecting site number one. In addition to specific design
features of the homes which will mitigate any potential rockfall
ha?ard, the roadway has been designed to intercept rocks before
they reach the home.43
REX. 231; ROA 1611. (Emphasis added). There was no basis or legitimate excuse for a Ph.D.
and a Shadow Mountain developer to state to the BOCC and COM DEV that Little Cloud had
"good geologic hazards." Moreover, this representation should not have been accepted by
COM DEV, P&Z or BOCC. Tucker's General Submission, Section 5-100.2(A), (B), also
represented that:
Dr. Lampiris' report analyzed the geological characteristics of the
applicants' property in considerable detail.44 As previously
indicated, the applicants will follow the 'geologists'
recommendations and those of appropriate county agencies
regarding mitigation of any on-site hazards.
42 The Lampiris letter does not set £or~h (i) what Lampiris' "geologic investigation" entailed, (ii) what data he may
have relied on, (iff) whether he looked at the County's avalanche and rockfall mapping as required by Land Use
Code § 5-401.3(0 (R. 1758) or (iv) what testing, if any, he performed. See, REX 232. This letter was the "f'mal
draft of the geologist report." REX 149.
4~ [.irst, as set forth above, residential structural development was and is prohibited in rockfal] areas. Second, the
design was changed by Tucker to do away with this "protection." R. 134. Third, a large stretch of the access road
and the proposed residences are al__!l in rockfall areas. R. 0783, 0806, 0879; REX 112, 116.
44 Once again, there was no evidence to support Tucker's editorial, and nothing was submitted as to what Lampiris
actually did by wa), o£any analyses. REX 232.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.ILC. P. 106 BRIEF
Page 28
M. (Emphasis added). Tucker's General Submission also addressed 1041 Special Hazard
Review issues (R. 1617-8), with avalanche hazards addressed first as it is in the Land Use
Code. id. It bears repeating that Pitkin County's 1985-1993 Land Use Code § 5-401.2 (d)
Avalanche Areas (which then applied and controls the Little Cloud submissions) provided that:
(1) The applicant shall show that the proposal is either located in
a site free from avalanche danger or is adequately protected by
avalanche defenses or structural provisions. (2) Proposals shaI1
not result in a high concentration of population or activity in areas
during periods of avalanche activity and development shall not be
accessible only by crossing dangerous areas.
R. 1751. (Emphasis added). Tucker's General Submission represented in connection with
avalanche -- a critical 104 i hazard issue45 -- that:
5-401.2(b). Avalanche Areas. As evidenced by the presence of a
dense, mature spruce and fir stand, the property exhibits n_._~o
history of avalanche activity. Homesites two, three and four are
located immediately downslope of this timber stand, and
homesite number one, is also marked by the presence of several
large trees, further evidence of stable snow conditions.
R. 0617.
avalanche danger," as
(Emphasis added). Tucker was attempting to suggest that the site was "free from
required by the Code. The Lampiris Letter represented:
Lot #'s 3 and 4 - "iS]now slide hazard is at a minimum
because of the general topography and thick cover of
conifers on the hillside above the site."
Lot 2 - "This site is somewhat more open to .small snow
slides..."46 Recommendation: "Small berm/trench
feature".
4~ C.R.S. § 24-65.1-103(2) defines avalanche as "a mass of snow or ice and other material which may become
incorporated therein as such mass moves rapidly down a mountain slope."
Pitkin County District Court, State of Colorado
Terry R. Too,lot, et aL v. John R. Tucker, I11, et aL, Case No. 04 CV 208-I
PLAINTII~FS~ OPENING C.R.C.P. 106 BRIEF
Page 29
· Lot 1 - "This site is susceptible to small snow slides..."
Recommendation: Same, but not in Resolution 90-120,
discussed sut~ra.
REX 232. (Emphasis added).47 Apparently, Tucker was also attempting to suggest that the site
was not only free of danger, but that "small slides" could be protected, or mitigated against. All
tour experts agree that even had the small berm/trench t'eature made it into Resolution 90-120
and been constructed, it would be inadequate. For example, Lewis and Mr. Schaefer have their
30-foot high, solid, reinforced concrete wedge-wall with gabions.
Tueker's Detailed Submission represented, among other things, that:
· As requested, the attached letter from Dr. Lampiris...addresses
the potential hazards associated with development of the site.
Further investigation by Dr. Lampifis led to his conclusion that
seepage from the Alabama tunnel was not evident m~d,
consequently, of little concern.48 Small snow slides which
occurred in the sprine of 1989 had no effect on the proposed
· All material representations have been and will be adhered to.
R. 1650. (Emphasis added). Rather then "connecting the dots" ~4th such things as these "small
snow slides" and the Chen Northern, Inc. report, REX 68, and Mr. Meats' mapping and "1041"
requirements, Development Defendants simply managed to push through the PUD. Chert
pair of Lewis' experts concluded in May 2003 that: "The real threat is: the rare, but inevitable, large
avalanche (large for this particular slope) which takes out the entire snow cover and breaches the small terrain
transition bench just below the access road, (IL 0153), i. e., just above the Taylor home.
~? Lewis' experts show the approximate direction of climax avalanche force directly slamming into the Taylor
residence. R. 0134.
4g In fact, Resolution 89-18, Para. (I I)(h), required Tucker to "submit a more detailed geologic analysis of
potential water seepage...slide potential" -- obviously "slope stability." Instead, Tucker (not Lampiris) spoke to
"small snow slides" and avoided addressing the stability issue altogether.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. dohn R. Tuclver. 111, et al., Case No. 04 CV 208-1
PIUAINTIFFS' OPENING C.ILC. P. 106 BRIEF
Page 30
Northern, Inc. then reported to Tucker, between l'..is General and Detailed Submission: "[I]t is
apparent that the steep area located south and uphill of the residence is considered potentially
unstable with respect to landsliding or creep. Avalanches and areas having avalanche potential
have been mapped on the steep slope area and in one case, appear to impact the proposed
building site [i.e., the Taylor Residence]." R. 0488.
In their Detailed Submission "summary", Development Defendants stated that "[qhe
land use code is intended to provide high quality, environmentally sensitive developments."
They ignored the first priority, which is and was safe development.
As discussed below, the BOCC now has uncontested and compelling evidence that Lot
I (and 2) and several hundred feet of Re proposed access road are in dangerous avalanche
zones.4~ See, e.g., REX 79, 101, 103, 108, 111, 119. No one disagrees with these fae~s.
Resolution 01%2004 directed that "if there was any further development...hazard mitigation be
designed to provide appropriate...avalanche hazard mitigation for the residences in the
subdivision [i.e., the Taylors' Residence] and for users of the access road." R. 1031.
Resolution 163 ignores the County Land Usc Code and Resolution 019-2004 because it allows
a prohibited road (which crosses dangerous areas and not completely mitigated) to proceed to
development and unprotected by any avalanche mitigation due to "site constraints." R. 0813.
In fact, the BOCC ignored Messrs. Mears and G[eason, who both opine that, not only does the
"brugge' netting rockfall catchment device not protect against avalanche (R. 0933) - it can
4~ Annexed hereto as Exhibit "B" in the Appendix are samples of excerpts of various experts' findings regarding
the av'alanche hazard_
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker. 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 31
make avalanches more dangerous by adding to the debris field (R. 0778, 0934), or acting as a
ramp. R. 0778.
Mr. Gieason agrees with Mr. Mears' avalanche mitigation recommendations (R. 0878),
which are that:
Avalanche mitigation can be achieved by constructing a
"trench/wall" structure in place of the current access road...or a
"roof ramp" structure approximately 150-200 feet long... The roof
ramp structure would protect the Taylor house from avalanches
and rockfali.
REX 119, at R. 0934. (Emphasis in original).
Mr. Gleason thus also agrees with Mr. Meats (R. 0878) that the "Avalanche mitigation
of the Taylor house cannot be achieved by the wedge-shaped retaining wall discussed [by
Lewis' experts]." Id. Resolution 163 not only ignores these experts, but it allows the access
road to cross prohibited dangerous areas - w/thout avalanche protection -- directed by
Resolution 019-2004 and prohibited by the law.
It bears repeating that Pitkin County's 1985-1993 Land Use Code 5-401.2 (f),
Potentially Unstable Slopes, provided:
R. 1753.
(1) Any development proposal in a potentially unstable slope area
shall evaluate the severity of the slope instabilits~. In extremely
hazardous areas development shall be discouraged. In areas of
moderate hazard, development shall only be permitted if the
applicant assumes the cost of engineering desit, n and construction
stabilization and maintenance measures...
(Emphasis added)rio Tucker's General Submission represented that:
50 Pitkin County's 2001 Land Use Code § 3-50-050 (1) -- provides simply that "Development is prohibited on
slopes greater than thirty percent (30%)..
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, 111, et al., Case No. 04 CV 208-1
PLAINT~'~S' OPENING C,R.C.P. 106 BRIEF
Page 32
5-401.2(p). Potentially Unstable Slopes. All homesites are
located on stable, low to moderately - sloping sites, consequently
no impact on slope stability is expected as a result of construction
of the residences.
The access road traverses some areas that are steeply sloped.
While the soils are known to be stable, special roadway
construction techrfiques are proposed to mitigate any potential
negative effects on slope stability.
R. 1617-8. (Emphasis added). The Lampiris Letter and Development Defendants thus only
raised unstable slopes as a possible issue as it related to road cons~a-uction~ and then represented
that "no impact would occur due to residential construction.''5~ Lampiris noted that, as to Lot 3:
"it is important to conduct a factor of safety analysis on the hillside where the toe will be
removed." R. 1644. This has never been done. R. 1551. Lampiris also noted that the access to
Lots 2, 3, and 4 "will need to be engineered along a fairly steep, but relatively stable hillside.''52
Id. Leads' geotechnical experts, CTL, has disagreed with Lampiris/Tucker and reported that:
"mosI slopes are sIeeper than 30 percent and should be considered unstable." R. 1444. CTL
also reported that a "cut face" -- "has failed and assumed an inclination of approximately 65
percent which appears to be near an equilibrium between stability and failure." Id. 53 Finally, in
direct contradiction to Tucker's representations, CTL reported to Lewis, in September 2002,
that excavation for residential construction "will involve the risk of activating a comparatively
large-scale slope failure or undermine existing rock outcrops causing a significant rockfall
-~ Annexed hereto as Exhibit "C" in the Appendix are samples of excerpts of various experts' conu'adictory
findings regarding unstable slopes.
~z Tucker never explained what "relatively" meant, nor is it a term of art in the Land Use Code or in C.R.S. § 24-
65.1-I01, et seq.
53 CTL also reported that the failure-- I0-15 foot vcrtical scarp - is imminent. R. 1'!.44.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. do/m t~ Tucker, 11/, et al., Case No. 04 CV 208- I
PLAINTIFFS~ OPENING C,R.C.P. 106 BRIEF
Page 33
event..." R. 0366. Critically, and absolutely, ignored by COM DEV and the Commissioners,
Tucker had represented to the 1988 BOCC and P&Z, that "[t]here are no geologic conditions
which will act to make this [access road] design any more difficult then elsewhere in the
County where hillside roads must be built." R. 1116. Resolution 163 itself establishes the
fallacy of this statement. First., despite direction to protect the road from avalanche,54 Lewis has
somehow prevailed upon the BOCC to ignore Resolution 019-2004, C.R.S. § 24-65.1-101, et
seq., and the Land Use Code by simply asserting that the site is too "constrained" to protect the
road from avalanches.-s~ Second, the fact that heavy metal "brugge''56 netting (6-12 feet high) is
now being considered to protect several hundred tEet of the roads7 from rockfall is positive
proof that (a) Tucker/Lampiris were dead wrong that this was "any more difficult," and (b) the
County Defendants and Resolution 163 ignore and would violate the Land Use Code. Third,
Tucker, Lewis and the County Defendants will be hard-pressed to find any precedent for an
Aspen subdivision access driveway requiring 340 feet of reinforced, 6-12 foot high, metal
"brugge" netting along its length, and also for a downtown Aspen subdivision requiring
massive avalanche walls58 that inadequately protect portions of homes. Lewis has also
_s4 Resolution 019-2004 directs that "additional hazard mitigation be designed to provide appropriate rockfall and
avalanche hazard mitigation for the residences and for users of the access roadway." IL 1031.
.~5 Schaerer: "The protection of the Little Cloud driveway is severely hampered by site constraints." R. 0887. See
ala'o R. 0183 (Sanders: "The problem with protecting the rest of the road is the site constraints.").
56 R. 0770 Geo Brugge -- is a Swiss based engineering company and manufactures and markets various types of
rock catchment devices.
57 R. 1093.
ss Lewis' expert testified that the wail, however, would have to be 30 feet high to protect the Taylor Residence. R.
0802. Mr. Gleason agrees with Ma. Meats that even this wall is still not sufficient protection. R.. 0878.
Pitkin County District Court, Stale of Colorado
Ter~. R. Taylor, et al. v. dohn R. Tucker, 111, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R~C.P. 106 BRIEF
Page 34
demonstrated that Development Defendants and Lampiris59 failed to identify the actual and true
nature of the site's slope stability hazards or misrepresented and/or purposefully dox~mplayed
the actual and true nature of this geologic hazard in order to assure development approval.
Resolution 163 ignores the Land Use Code and would allow development to continue despite
the clear slope stability issues and the prohibition against development in areas with 30%
slopes.
It also bears repeating Pitkin County's 1985-1993 Land Use Code regarding, Rockfall
Area:
(1) Structural construction associated with residential ... activity
shall be prohibited in roekfall areas.
§ 5-401.2(g). (Emphasis added). Pitkin County's 2001 Land Use Code §3-80-050(D)(1),
Rockfall Areas, succinctly provides that: "Development is prol)ibited in Rockfall Areas." R.
1754. (Emphasis added). Tucker's General Submission in connection with 1041 Hazard
Review represented that:
5-401.2 (g). Rockfall Area. No homesite is proposed in the "drop
zone" of a rockfall area, and the dense evergreen vegetation on
the site provides material which might reach the area from
adjacent property. Site number one, while located the greatest
distance from any rockfall source, might, in extreme
circumstances be exposed to moderate rock_fall hazard ..... The
retaining wall on the north side of the access road abutting the
~* Seventeen years ago, Lampiris concluded his June 6, 1988, letter by stating:
"1 believe that it is important that I be present during staking of each building
site, and the suggested landscaping features, because they are so important to
the project."
Lampiris now lives in Mexico, and the evidence is overwhelming that there is no amount of"landscaping" that will
protect the Little Cloud and the people living and working there.
Pitkin County District Court, State of Colorado
Terry t~ Taylor. et al. v. dohn t~ Tucker, II1, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPF~NING C.R.C.P. 106 BRIEF
Page 35
R. 1618.
that:
property has been raised to a height of three and one half feet to
intercept any rocks which, under extreme circumstances, might be
dislodged t?om Shadow Mountain. This higher section of
retaining wall and the angle of the roadway will serve to divert
material from the residence. The proposed landscaping6° has
been placed to provide additional protection.
(Emphasis added.) The Lampiris Letter had represented, regarding rockfall hazards,
Lots 3 and 4 - "[R]ockfall...hazard is at a minimum
because of the general topography and the thick cover of
conifers on the hillside above the site.
Lot 2 - "This site is somewhat more open to...minor
rockfall than the previous two [lots]." Recommendation -
"a small berm/trench feature.., around the rear of the
home."
Lot I - "On an essentially flat site at the base of the
hillside..." Recommendation - same.
R. 1644-5. Tucker represented to the P&Z and the BOCC Pitkin that no homesite is proposed
in the "drop zone" ora rockfall area. R. 1618. This slight of hand led to an "end ma" of the
then -- and still -- absolute prohibition of "residential structural construction" in rockfall areas.
Lewis' own expert, Liv Bowden of CTL, aptly testified in the Second Appeal as to the rockfall
at Little Cloud: "And you have to realize that the rockfall that's been going on, on that site
[Little Cloud], is something that has been happening for thousands of years -- ten thousand
years anyway." R. 0806. (Emphasis added).6~ There can be no innocent explanation for a
Ph.D. to have reported as Dr. Lampiris did. Resolution 163 erroneously and illegally ignores
60 This might explain why Lampiris had been keen on being present for landscaping. See, REX. 147.
6} Photographs of rocks on the slopes of Shadow Mountain and in Linle Cloud can be found at R. 1553-4; 0954.
Pitl~in County District Court, State of Colorado
Terry R. Taylor, el al. v. John R. Tucl~er, I1l, et al., Case No. 04 CV 208- l
PLAINI'IIq~'S' OPENING C.R.C.P. 106 BRIEF
Page 36
the gross misrepresentations about rockfall at Little Cloud, despite the absolute prohibitions,
these misrepresentations simply clear the way for illegal residential related construction in
rockfall areas, violating the old code and the new code provisions. R. 1550, Development
Det~ndants' I988 suggestion that specific "design features of the homes...will mitigate any
potential rockfall hazard...," constituted a tacit admission in and of itself of a "1041" violation
and presaged that this development is in fact illegally approved in prohibited and dangerous
rockfall areas. R. 1611. On May 12, 2003, Lewis' engineering consultant, CTL, succinctly
advised Lewis that: "the access driveway for [Lots 2, 3, 4] and the [Taylor] home on Lot 1 are
in a rockfall area." REX 30. This too is prohibited.
Neither version of the code used the term "drop zone." Moreover, the fact that, in 1988,
Dr. Lampiris even suggested mitigation for the homes -- and in 2005, Lewis proposes a 340
foot-long "rock catchment device" or a "brugge" net62 (R. 1093) -- establish de facto violations
of the Pitkin County Land Use Code. Resolution 163 ignores the applicable prohibitions
against development in rockfall zones (but allows that Lewis has complied with a driveway
permit and with ad hoc criteria of "increased mitigation for rock fall") (R. 1035), which are
"incompatible" with the forces of a design avalanche (R. 0879) and, according to Mr. Mears,
would serve to exacerbate the avalanche debris flow. R. 0934.
The 1985-1993 Land Use Code 5-401.2(n), Ground Subsidence, provides:
(I) In extremely hazardous areas structural development shall be
avoided...(2) In moderate hazard areas engineered design and
construction shall be approved by a qualified engineer or
geologist and as part of the site plan.
s2 Mr. Mears has given the opinion that "the design rock fall fence" would need to be 11.13 feet high in order to be
effective as against rockfall. REX 119 at R. 0933.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, 111, el al., Case No. 04 CV 208-I
PLAINTIFFS' OPENING C.ILC.P. 106 BRIEF
Page 3 7
Lampiris said very little about this "1041" hazard despite the honeycomb of mine tunneling in
the area:
Lot 2 "is a bench formed by old mining tailings workings out of
the old Alabama Tunnel...the tailings have been in place a long
time and should be fairly stable, but site specific soils engineering
will be necessary."
R. 115. Tucker's General Submission represented that this "1041" subsidence hazard is "not
applicable to this application" (R. 1619) -- and until now has gotten away with this falsehood.
In 2002/2003, David Cushman reported to the BOCC: "The mine subsidence issue is curiously
not addressed by Lampiris, even though mine workings and tailings piles are mentioned." REX
210, at R. 1461. CTL has stated about this "1041" hazard that: "We recommend excavating
exploratory pits in the suspected mine adits..." REX 29.
CTL also conducted earlier Subsidence Analyses for Kuhne/Taylors, in 1998/2002:
Previous mining activity is evident by the presence of a mine
spoils pile on Lot 2 with some of the spoils along the south edge
of Lot 20. It appears that an abandoned adit is above and behind
the spoils pile. Areas above the old mine adit may be subject to
subsidence. Thc mine spoils may be considered an
environmentally hazardous material.
R. 0022. This hazard not yet even studied, and yet in violation of its own Code, C.R.S. § 24-
65.1-101, et seq., Resolution 163 denied the Taylors' Second Appeal and cleared the way for
development over extensive and potentially dangerous mine works and hazardous materials.
See, R. 1571 -- map of area's expansive mine works and tunnels, and CTL Report to Lewis.
REX 29.
Pitkin County District Court, State of Colorado
Ter~. R. Taylor, et al. v. John R. Tucker, HI, et al., Case No. 04 CV 208-1
PLAIN'I'iI~'FS' OPENING C.R.C.P. 106 BRIEF
Page 38
D. THE EVIDENCE IN THE RECORD CONCLUSI~ELY DEMONSTRATES RESOLUTION
No. 163-2004 ANO ITS LINEAGE 1990 APPROVAL VIOLATE THE COUNTY LAN~0
USE CODE AND "1041" LEGISLATION
Applicable legal authofity required BOCC to grant ',he Taylors' Second Appeal and
revoke thc dfivcway permit (and the PUD approvals themselves) based upon not being
informed aborn dangers to public health and safety. In Williams v. Smith, 230 P. 395 (Colo.
1924), the Supreme Court held that an approving body can revoke an approval where there was
"additionai information to that body showing danger to health and safety, of which its members
were not informed at the time of the resolution." Ia~ at 396. This appeal has an evidentiary
record replete with such "additional information" not known (or made known) to thc BOCC at
the time thc1990 Approval was granted. It is instructive that C.R.S. § 24-68-106(3) provides
that the vested fights statute docs not preclude judicial determination "based on common law
principles" of whether (or noO a vested rights property exists.
Furthermore, it is generally accepted that:
* A building permit issued in violation of law or under
mistake of fact confers no right, and may be revoked upon
discovery of the error, even after building operations have
begun.
o No vested fight can be acquired under a building permit
obtained by fraud or misrepresentation; good cause
consequently exists for the revocation of a building permit
when the application for thc permit contained a material
misrepresentation regarding the plans and specifications
for the structural portions of the building.
13 Am. Jut. 2d Buildings § 18. Likewise, as noted in 6 A.L.R. 2d 960, (1948):
* Generally speaking, a permit issued under mistake of fact
or in violation of law confers no vested right or privilege
on the person to whom the permit has been issued, and
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, HI, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 39
may be revoked, notwithstanding he may have acted upon
it, and any expenditures made in reliance upon such
permi~c are made at his peril.
Particularly apt in this litigation is: § 8. Fraud or misrepresentation by permittee, which
proves that:
The general proposition has been frequently stated (as would
seem clear from the broad role stated in § 3, supra), that no vested
right can be acquired under a building permit obtained by fraud or
misrepresentation.
A permit issued under a mistake of fact confers no vested right or privilege and may be
revoked at any time. Ebzerg v. City ~'Sheridan, 982 P.2d 1251, 1257 (Wyo. 1999) ("a permit
issued under a mistake of fact confers no vested right or privilege and may be revoked at any
time"); Bruno v. Zoning Board of City of Philadelphia, 664 A.2d 1077, 1080 (Pa. Commw. Ct.
1995) (applicant must show "good faith throughout the proceedings"). In Bruno, the city
denied a variance, but staff erroneously issued a written order otherwise. The applicant then
proceeded to build on this erroneous "basis." The applicant was later found not to have had
good faith reliance. Here, thc facts are even more compelling because Tucker misrepresented
t~acts regarding the several critical hazard issues that affect life and safety. Whether those
misrepresentations were criminal, fraudulent, or totally innocent is of no moment -- especially
when life and safety are at stake.
Thus, cases where misrepresentations have been made by the applicant are highly
instructive to this appeal. In O./~. Corporation v. Thomas F. Lewis, 373 So.2d 929, 930 (Fla.
Dist. Ct. App. 1979), the Florida Court found that the evidence supported a finding that the
Pitkin County District Court, State of Colorado
Terry R. Taylor. et al. v. John R. Tucker, III, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIF+F
Page 40
development application contained material misrepresentations regarding plans and
specifications. In O.P., the "misrepresentation" was simply a failure to properly execute
engineered specifications for a 12-story building. Not surprisingly, the developer's defense in
O.P. was that the Village had approved the development. The Court held that the approval
could be revoked due to the misrepresentation in the permit application process.
A Pennsylvania Court also upheld a township's revocation of an occupancy permit
where it was issued based upon "a false and misleading application." Robi Enterprises, Ltd. v.
Muhlenberg Towr~s'hip, 1982 WL 138, 27 Pa. D & C 3d. 121,129 (Pa. Com. Pl. 1982) ("It is
clear that a permit issued illegally, or under a mistake of fact, or under circumstances
amounting to deceit confers no vested right or privilege upon the [applicant] notwithstanding
reliance upon the permit.") In Robi, the applicant had misrepresented the intended use of the
premises.
In another case, a Florida town council that discovered the building of a hotel would
result in a violation of 40-foot ocean set back ordinance could properly rescind its approval and
a building permit. God,'on v. Town of Lgur.~vide, 8 So.2d 497, 498 (Fla. 1942) (approval
provided express condition "all facts stated in the application are true..."). Here, BOCC
Resolutions 89-18 and 90-120, both state as to Little Cloud that: "All material representation in
the application shall be adhered to." In God~'on, the high watermark had moved -- through no
fault of developer -- and yet the Florida Supreme Court still found that revocation was proper.
A core purpose of the Pitkin County Land Use Code is "To protect the health, safety
and public welfare of Pitkin County residents and visitors." 2001 Land Use Code § 1-40-050.
PitkJn County District Court, State of Colorado
Terry R. Taylor. et al. v. dohn R. Tuclter, II1, et al., Case No. 04 CV 208-!
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 41
As a policing mechanism, the Code also provides that development approvals for single-family
dwellings "may be revoked.., if terms and conditions of approval have not been met." 2001
Land Usc Code § 4-140-20. Similarly, an approval ora site-specific development plan may be
revoked or suspended and vested rights forfeited, if the applicant does not "fully abide by the
terms of any conditions of approval." Land Use Code § 4-140-10. Tucker/Lewis may argue
that they have or will comply with all such conditions -- however, their problems run much
deeper and to the very essence and sanctity of Pitkin County's land use approval process itself
and the enactment of"1041" legislation. In 1988-1990, Tucker must have known that if he was
fulsome about the nature of the geological hazards, he ran the risk that the approvals he sought
would be denied. See also C.R.8. § 24-68-103 (providing that "failure to abide by terms and
conditions will result in a tbrfeiture of vested property rights"). Those "terms and conditions;'
contemplated here are ones ,,to protect the public health, safety and welfare."
More recently in 2001, a Maryland court upheld a county commissioners' revocation of
an approval where it had been misled into believing that all adjacent property owners had given
a written consent to a re-subdivision of a rccreation area. Calvert County Planning
Co~nrnission v. tlowlin Realty Management, Inc., 364 Md. 301, 772 A.2d 1209 (Md. 2001).
That Court held:
An agency, including a planning commission, not otherwise
constrained, may reconsider an action previously taken and come
to a different conclusion upon a showing that the original action
was the product of fraud, surprise, mistake, or inadvertence, or
that some new or different factual situation exists that justifies the
ditl~rent conclusion.
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. John R. Tucker, 1tl, et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R,C.P. 106 BRIEF
Page 42
Id. at 1223. It is most interesting to note that the Maryland court upheld the countY
commission's revocation finding that the body did not need to prove a civil or criminal fraud,
but merely that the development approval was based on a "mistaken belief...induced by the
applicant's representation that proper consents had been obtained..." Id. Here again, the facts
are more egregious and indeed go to public health, safety and welfare, which were not
implicated in Calvert.
In 1997 San Francisco's revocation of a building permit was upheld as proper where
substantial evidence supported a finding that the city was misled by applicant's
misrepresentations. Stokes v. Board of Permit Appeals', 61 Cal. Rptr. 2d 181, 186 (Cal. Ct.
App. 1997) (owner represented that building was an active bathhouse when in fact it was
vacant). The fact that the applicant had spent almost $400,000 in improvements based on
reliance on the approval was not enough to estop the city's revocation. The court found that
because the city had not been apprised of the facts, there were no vested rights. Id.
There is a codified exception to the Colorado prohibition of subsequent regulations
against vested rights ~- which have likely expired here in any event. C.R.S. § 24-68-105(b)
provides that vested rights do not inure to the benefit of an owner:
Upon the discovery of natural or man-made hazards on or in the
immediate vicinity of the subject property, which hazards could
not reasonably have been discovered at the time of site specific
development plan approval, and which hazards, if uncorrected,
would pose a serious threat to the public health, safety, and
welfare.
As the development applicant, Tucker/Cottonwood Gardens were charged with identifying,
evaluating and mitigating, among other things, geological hazards. Instead, Pitkin County
Pitkin County Districl Court, Slate of C{florado
Terry R. Taylor, et al. v. John R. Tucker. II£ et al., Case No. 04 CV 208-1
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 43
never had true and accurate information as to the very existence, nature, and true scope of four
geological hazards implicated on the slopes of this mountain, all of which "pose a threat to
public health, safety and welfare." These natural hazards are clearly on and in the "immediate
vicinity" of the Little Cloud Subdivision and were supposed to be studied and addressed
squarely and fairly by the Developer Defendants. Resolution 163 cannot legally undo these
errors based on ad hoc criteria and worse -- by purporting to mitigate same in contravention of
the County's own expert's advice.
V. CONCLUSION
[Thc b,,e lefit ,~n incJellkle imp'r'es~ion upon 'kine min~
OlC 'khe h~'r,j§ pioneem Ol~ 'k~o~e t::Jat~, who~e ~u~.,c,w~ul 'r,e¢ollccJr. ion~
oF 'khe 'ker~ible mis'[orq:unes cause them 'ko ~peak in ~aJ 'ke'r,m~ oF 'khe
REX 62. These "indelible impressions" have unfortunately faded a bit -- but Colorado's
"1041" legislation is meant to counter our recurring ignorance of and lack of respect for the
much different geologic clock.
For the foregoing reasons, thc undisputed Pacts and reasons before this Court manifestly
establish that the County Defendants clearly exceeded their jurisdiction, committed legal errors,
and violated their own land use codes, C.R.S. § 24-65.1-101, et seq., and Resolution 019-2004
in thc enactment of Resolution 163. Accordingly, the Taylors respectfully request that this
Court reverse the decision of the Board of County Commissioners as found in Resolution No.
163-2004 and direct the County to ti) comply with the Pitkin County Land Use Code and § 24-
Pitkin County District Court, State of Colorado
Terry R. Taylor, et al. v. .John R. Tucker, II1, el al., Case No. 04 CV 208-1
PLAtNTIlZFS' OPENING C.R.C.P. 106 BRIEF
Page 44
65,1-101, et seq., fbr any fiature development at Little Cloud, and/or (ii) direct the County
determine the legality of the remaining Little Cloud Approvals.
Dated tiffs 1st day of July, 2005.
Respectfully submitted,
GA RFI EL2~//fi~/~i~CHT, P.C.
MatO{9~ ¢ Fe~guson, A.R. #25687
J. Lawrence Hamil, A.R. ~4143
ATTORNEYS FOR PLAINTIFFS
TERRY R. TAYLOR AND CYNTHIA E. TAYLOR
ON THE BRIEF:
Matthew C. Ferguson
J. Lawrence Hamil
Eric D. Musselman
Pitkin County District Court, State of Colorado
Terry R. Faylor, et aL v, doh. R Tucker, 1li, et al,, Case No. 04 CV 208- I
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF
Page 45
CERTIFICATE OF SERVICE
I hereby certify that on July 1, 2005, a true and correct copy of the foregoing
PLAINTIFFS' OPENING C.R.C.P. 106 BRIEF was served on the following via Lsxls-NSXlS FILE
AND SERVE:
Alan C. Friedberg, Esq.
Pendleton, Friedberg, Wilson & Hennessey, P.C.
1875 Lawrence Street, Tenth Floor
Denver CO 80202-1898
Stanley L. Garnett, Esq.
Brownstein Hyatt & Farber, P.C.
410 Seventeenth Street
Twenty-Second Floor
Denver CO 80202-4437
Christopher G. Seldin, Esq.
Pitkin County Attorney's Office
County Attorney
530 East Main Street, Suite 30t
Aspen CO 81611
J. Lawrence Hamil, Esq.
Hamil/Hecht LLC
140 E. 19th Avenue, Suite 600
Denver, CO 80203
113787_1
Michelle~Hyde
eT/22/28B5 11:34 S5492742~r~ ERO:~,I~,RD M'ARIN£
~O~-~l-~e~ B9: ~ FROM-' TOt ~?t
August 18; 2000
Tom Lewis
Lewis ~operty l~nvisiors, Inc.
[/925 S.W. 148th Street
Miami, Florida 33176
Via fac.~imile @ 1-305-582-1333
De.~r Tom:
Lot 2 Little Cloud Subdivision
At your request, ! ha'ye undertak~.a and completed a review' of the in£ormatl.on
provid~ to me relatNg to the re.iht ~lMgs and geolog~ or Lot 2, Little Cloud
Subdivision, in ~pm~ Colo~do; As a pa~ of my w0&, I ~viewed pNo[ i~por~s f~m
the geot~hnical ~ngin~ng firm of ~gn-Nor~crn, autho~d by
rcglstcr:d prof:,sion~ engine, sous, d~l log und
S~cmr~s Di~i*ion of Ken R. White Comply,
Fo.llovang my ~:evle,v of the information, 1 completed a brief site Visit which
allowed me to form the £ollowing conclusion: th* mine tailings v~aste pile that
remains on Lot ~ does not pose a stgruific'anl en~,ir~nmgntal risk or ~azarrl ann
does not result in a finding of environmental degraS~tlo, a to the site. Nlor=ovm-,
the ,~ite n:conn~tiSsancc Supports a Gndln~g that [hm'~ is no str~sse, d v=g'ctu£ion or other
indicators o£ degradation occurring, there ,,yore no obvious mutcrials stored or .
dumped on site, narrow ]eof cottonwood trees are growin g through the'ta, iliz,.gs p~-
and m'em~ adjacent to the t~ilings pile are replete with vegetation typical o~ this area.
The resulu~ of Chcn-Noahera's tc~ting indicates t~¢ taUing~ are benign in dry
~ocrn but m'.ty leach out toxic levels o.f.' carrain minerals if allowed lo remain on-sim
'*nd am .~ubjaet to nautlnc irrigat~0n in t}~c future. ~,Vh~le the CJ'~en report sugge, zrs
spmding thc soils and then burying them with ~'opsoi. I, or digging a pi~ and burying
thc tailingS. I would recornn~nd against this approach. Rather, 1 would recommend
the bulk of the tailings be ~:ernoved and dl.tpo.~ed of at the Pitkin County landfill or
other licensed disposal sire. Remova! of the !oilings would create a much
reliable and lasting remediation and would lessen the potantial for future problems
related m leaching minerals being u-unspotted to other prope~i~.
Tl~e soils report indicate..~ the tailings materials are not suitabl~ for use in
st~ctu~:-,d uppllc,,t[o~lx due to sba. lc coutent '-,nd thc~:efo~e do not appear to ha'~e much
value to the property. In addition, the constituency of the shale talus ~aakes it pron~ to
creep and the report sugg'csts tho tN.lings piJe could heed.urn unsmb].¢ ii satu. tated by
rain or anew. Therefore, k may bc reason--bt= to r~quest the s=llmr rcmov= thc tailiug~
£~am Lo~ 2 prior ~o completing thc.a-ansacdoa.
RdS-~I-RO~O 09:.5.3 FROM:
954~27~?~ ~RO~ARD ~IAR2NE
T0:9'
~5 9561
BBA~ ~'NRqR, ONqFf, ENTAL, LLC
August 1 F,,, 2000
Con.geq~e~ntly, it may tx: poxsiblc for you to complete your purchase without
any further ass. efsment or ~nalyses of the property-or t~lin~. However, you should
be aware [hat a potcntial leader may requ~e the completion of a comprchc~ive Ph~e
. f Environment~ Site Ass~sment and rh[s wor~ could be completed by my firm
wi~in ap~oximaely ~0 days from autbodTmtion~ I do not sasp~t th2 ESA will
produce auy addido~a~ conc~s with ~he si~e though si~tt I have compiet~ ESAs
recently on prope~es in bo~ d~cfions adjacent to the Little ~oud Subdlvi~om
If you decide tO proceed with your purchase ,'tad wish u~ to c~o~plet¢
additional work, including the removal of the re{ne tailings, pie-use fecl free to give
me a call. I will make my.~elf available to ari~.wer any quesdor~ you may have.
Sincerely,
By
G , CF.S, CEI
PfinoipaW-~
02i%1,01
08...']o.,,2 06 1] 28 FAX ~]0 S~6 5848 SCH~,IUESER GORDON
~F~ 002,,"009
LE IS
PROPERTY iNV STOiKS,
750 i~ .W,. 7'r ~ AVE,
DAb,;I.~. B EAC J'~, FL ~3004
FACSIMILE TllANSMITTAL SHEET
LLC
Bud .E,ly: Tom E.
FAX NUMBER:
(PTO) 920-5374 Aught 1~, 2005
Go~ TOTAL NO. OF PA~ES INCLUDING CO.R:
PHONE NUMBER; ~D~'; REFe~N:; HUM~
9 o-5 G
Keg ~= Clmud Sub~ YOUR RE~NCE NUMBER=
· Lot 1 ~a~:d ~=ll
NO ~ ~=8/COMMEI~FF$:
It w~.: ~- plcz~'o_'~: m~timg you thc othe. r dy md I look fo~d m =o~ ~ you on ~c
:=pons¢' :o ~f~tb~ F=~son's le~= ~d J~y 20, 2005 ,t~g ~e Lot 2 ~ Mo~
Pr,,,Rt
~ ~ed pzof~o~ ~n~, so~, dH~ log ~d
zms on ~t 2 ~ not po~e · M~cm~ ~mm~
~g of en~tonmm~ d:~zdx~on ~ ~e ~m"
~ ~t to~c ~ ~ I~ on: of ~c ~e pflc B~h ~n r~tc~:es his 5~a~ ~nd
~ if ~l~ ~ w :~;~ ~-~ ~d =re sub]cc: to~
~c ~ M~,~ P~: ~d ~: scope of ~ork
=~ G~ B~ ~d St~ P~=~ ~t ~= ~ ~l~ oa ~t 2 do not po,c zn ~o~
¢$.,"13Z2005 1l 2S F;,;,,: S70 5S4£:
2¢Ht,IUESER ~ORDON ~,tEYER
LPI HOLDINGS
~ 002/O09
PAGE 83
Mo~ P~t for Lot 2 be ~ppzo~d ~o~, In zd~fion,
mppr~ be ~o~ for ~c ~e~ed
~k y~ m ~c= md ~ho~d you
co=m~ mc zr (~04) 307-8878.
Tom El, ~
730 t4,~,. ?r, /,'VEIqU£. ' DANIA DEACH, I:L ~3004
· .,3~.o SCHt,tUESER ~-ORDOH [IE","ER
u:..' 1a;4uuo I1 ZW h,¢,;::: W,'O 845
89/13/2885 @S', 1'1 954921L ~' LPI HOLDINGS PAGE 84
Be~ch bn¥tronmental. LLC
T,m Lcwt~
750 N.E, 7
D~nia Beach, Flori
~33004
Augu~ 15, 2.005
Sent via Fax to 1-30~-g47-374 5
E~ Mr, Le~s: ' . '
~e ~te to a bdef~pe~on md ~w of ma~ta ~i~ incl~ 8
~e tal~s ~m St~ 7awl~ ~cn-No~ ~d a
Ma~ & S~s out of ~ Co~Mo.
/
As mend~ ~ m~, I~r of Aug~ I8, 2000, ~e ~5=gs, acco¢iag to ~. Pawt~
that ~cn~ o~ >fwhtch B b~ on 6~ Pa~<~'s ~o~ioml
mm~ i~¢ad~ Ir ~e ~, Since ~c~ w~ no ~fion sy~m ~ ~¢ t~¢, ~d
~ Mt. Y~]~, ~. ~co~ud ~ ~ ~ field ~mfls,
or h~rd ~o ~ ~lt~ ~ 2000.
~ my 1~, I m]~ :smd'you co~d ~1~ ~ pot~ probl~ of~tmm le~ r.h~ by
~plo~g ouc oft ~ options. Pawl~ su~
b~g ~m M~ ' to g f~ of~nmm~d ~t~
~g ~ ~l~gs ~d I ~end~ r~oving ~ ~ ~ s~ as ~ wo~d
cr~a~e "a mu~ mar: ~liab~ ~d I~lng r~m~afi~." ~y of ~ ~e o~o~ wo~d
l~ly'mmlve ¢on~s ov~ ~e p~:~d f~ leac~g of toxic min~s, I also
~gg~d ~nt "~ ~y be ~o~ble m mq~st ~
Lot 2 prior to eom~ ~= ~aofioa." As ~. Paw~ m~m~d~d, a civil
~g~e~ ~d ~the ~a;ng of~¢ ~m pUe ~d soft cove.
In re~pon~ to Matt
August 1 8, 2000 l=t
mine milktgs may b
c~rtmiu m-in~rals [fa
isrigati on.'
Frrguson's letter to I~c~ Clark, M_~. Fergt~on ~s~ ~t ~
: b~i~ in ~ fo~ ~y ~ mbje~ to l~ch[i~] ~ to~c l~e~ of
SCHi,!UESE~ GORDOH I,IE',/EP
L_PI HOLDINGS
005/003
P;GE ~5
any ~w~n% if fac
likely ~tlil be fc
Princlp~---
Sep
05 02
ll:12a
Snedon
August 30, 2002
Freilich, Myler, Leitner & Carlisle
106 S. Mill Street, Suite 202
Aspen, CO 81611
Attention: Mr. E. Michael Hoffman
Attorney at Law
Subject:
Geologic and Geotechnical Consultation
Potential Effects of Development of
Lots 2, 3 and 4, Little Cloud Subdivision and
Tract A of Government Lot 20
.on Kuhne Residence
Aspen, Colorado
Job No. GS-3738
As requested, we have prepared this letter to summarize our geologic and
geotechnical consultation regarding potential effects of development of Lots 2, 3
and 4, Little Cloud Subdivision and Tract A of Government Lot 20 on the Kuhne
Residence at 315 West Hymen Avenue in Aspen, Colorado. The scope of our
consultation was described in our proposal GS-02-218, dated August 21,2002. We
reviewed available plans showing existing site conditions and previous and
currently proposed access road construction. After reviewing plans, we made a site
visit to observe existing conditions and check topographic mapping. We performed
a limited slope stability analysis.
Site Conditions
The subject property consists of TractAofGovernmentLot20and Lots 2, 3,
and 4 of the Little Cloud Subdivision. The site is located on the lower slopes at the
base of Shadow Mountain in the southwest part of Aspen, Colorado (see Figure 1).
Single and multi-family residential buildings are on adjacent downhill property to the
north. Alarge single family residence has been built on property to the southeast.
The Little Cloud Park is adjacenttothe northwest. Land that has not been built on
is to the southwest. SGM 01 33
CONSULTING ENGINEERS
234 CENTER DRIVE · GLENWOOD SPRINr~S, COLORADO E~1601 a..(970) 945-2809
Sop
05 O2
Da p~ M. Snadon S7~595~1
The south terminus of First Street is at the east part of the site, An
abandoned railroad bed crosses the northeast part of Lot 20 and Lot 2. Asectior~of
fillembankmentfortheabandonedrailroad bed creates a closed topographic basin
southoftheembankmentinthe northeast part ofthe site. Lot20andLot2areinthe
northwest and northeast parts of the site, respectively. Lots 3 and 4 are on slopes
above and southwest of Lot 20. A gently sloping topographic bench is at the west
part of Lot 20 and east part of Lot 4. A vet], steep, excavated slope above the old
railroad bed is in the northwest part of Lot 20. An old mine and spoils pile is located
on the west part of Lot 2. ,
Ground surfaces at the site generally slope down to the no_rt, heast at
moderate to steep gradients. On the lower ('soutl~) part of Lot 20 grades were
measured and visually estimated at 30 to 35 percent. On the north parts of Lot 20
grades were measured and visually estimated at 45 to 55 percent. Ground surfaces
on the upper part of Lot 2 are comparatively fiat on top of the spoils pile and
otherwise slope down at approximately 50 to 60 percent. Lower part~ of Lot 2 slope
down at approximately 20 to 25 percent. Lots 3 and 4 generally slope down to the
northeast at grades measured and visually estimated at 25 to 35 percent. The
topographic bench area at the east part of Lot 4 is gently sloping with grades.
measured at approximately 5 to 10 percent. Vegetation consists of brush, grasses.
and weeds on the. lower parts of the site with conifer forestation on the upper parts.
of the site. Figures 2 through 4 are photographs of the'site.
p.5
Geoloqic Conditions
The site is underlain by surficial soils consisting of Quaternary aged talus and.
colluvium derived from lower and middle Paleozoic aged bedrockwhich is exposed
on the slopes above. Talus and colluvium are granular materials that generally
consist of poorly consolidated angular gravel, cobble and boulder with a matrix of
silty sand. Bedrock below the site is likely lower and middle Paleozoic and
Precambrian aged. Actual depth to bedrock is unknown, however, the surficial soils
are probably thickest on the lower parts of the site.
Potential Geoloqic HazarH
We identified several geologic hazards at the site that need to be considered
during the planning phases of development to ensure that a safe development is
achieved. Geologic hazard mitigation will need to be carefully' planned and
constructed to provide protection to the Kuhne Residence and other structures
below the site during and after construction. Geologic hazards at the site include
rockfall, slope stability and snow avalanche. An additional consideration is evidence
of previous mining activity on Lot 2 and along the south edge of Lot 20.
SGM 0134
FREILICH, MYLER, LE[TNER, CARLISLE
KUHNE RESIDENCE
~Tl.~ JOB NO. G$-3731~ '3
Rockfall
Numerous rocks and boulders were observedatthesitethat have originated
from the rock outcrops above the site. Many of the rocks are resting against trees
which have deformed and grown around the rocks. The rocks influence onthetree
is evidence of a process that is active in a recent time frame established by the age
of the trees. The degree of hazard increases on the higher parts of the slopes
closer to the rockfall source area. In our opinion, the degree of rockfall hazard is
moderate at the lower parts ofthesite and high atthe higher parts ofthe~ite, ln our
opinion, rockfall mitigation would be needed for any development on Lot 20 and Lots
3 and 4. Mitigation of rockfall could involve avoidance of at risk areas or various
proactive methods. Proactive mitigation methods include removal and/or
stabilization of the rockfall source area, the construction of impact barriers, berms,
and catchment structures, or a combination of the above. We recommend a detailed
rockfall hazard evaluation be p~rformed to quantify the degree of hazard from
rockfall for specific areas of the site. Design level mitigation recommendations can
then be made for development of Lot 20 and Lots 3 and 4.
Potential risk of rocks falling and damaging the Kuhne Residence and other
structures be!ow the site will increase during earthwork operations to construct the
hazard mitigation and access road. A plan to protectthe Kuhne Residence and other
structures below the site should be developed by the contractor prior to
commencing earthwork operations.
Slope Stability
Most slopes at this site are steeper than 30 percent and should be
considered to be potentially unstable. Construction plans and methods for retaining
walls and foundation walls that require excavation into slopes steeper than
approximately 30 percent should be reviewed by a qualified geotechnical engineer
on case-by-case basis to evaluate excavation and hillside stability concerns.
Depending on the actual engineering characteristics of the soils and the actual
planned construction, various types of excavation and slope reinforcement systems
wi[I be required. Sloping excavation sides may be appropriate at some locations
where site geometry allows. Retainage via soil nail walls, Mechanically Stabilized
Earth (MSE) walls, tied-back driven piles with lagging or other methods may be
required.
At the north west part of Lot 20 we observed a steep excavation fa~e for the
abandoned railroad bed into the toe of the slopes of Shadow Mountain. The
excavation face has failed and assumed an inclination of approximately 65 percent
which appears to be near an equilibrium condition between stability and failure. A
'ar vertical scarp of approximately 10 to 15 vertical feet high is at the top of the
dexcavation face. We believe failureofthescarpis immJnentandthescarpwill
~slopesimilartotheexcavation face slopes below. A detailed slope stability
'TNER, r'A~LISL£ $ G M 0 1 3 5
, Sep U5 02 p.'/
11: 12a D~i N. Snadon ~'/U~Eb~bSl$
analysis would be needed to determine if construction above the scarp is feasible.
From a preliminary viewpoint, we believe that the excavation face would need tb be
retained or construction would need to be set back from the top of the scarp a
horizontal distance equal to at least the height of the excavation.
Avalanche
Due to steep slope geometry, elevation above sea level and lack of tree
cover on parts of the site and areas above the site, a snow avalanche hazard may
exist. We suggest the site be evaluated for snow avalanche hazard by someone
who specializes in snow avalanche to determine the degree of hazard that exists
and appropriate mitigation.
Previous Mining Activity
Previous mining activity is evident by the presence of a mine spoils pile on
Lot 2 with some of the spoils along the -south edge of Lot 20. It appears that an
abandoned ad. it is above and behind the soils pile. Areas above the old mine adR
may be subject to subsidence. The mine spoils may be considered an
-envirc)nmentally hazardous material. Phase II environmental testing should be
performed on samples of the mine spoils to determine if a contamination problem
exists. Mitigation of contaminated mining spoils includes dust control during
construction and burying the material on site with several feet of "clean" soil.
Review of Reports and Plans
We reviewed the following reports and plans to prepare this report:
Description Job Number and Date
1 City of Aspen Records Job No. 8049A,
Little Cloud Subdivision dated July 03, 1989
Book 26, Pages 10, 11, 14 & 15
2 Geologic Hazards Evaluation, Tract A of Job No. GS-2569,
Government Lot 20 and Lots 2, 3 and 4 Little dated October 13, 1998
Cloud Subdivision, Aspen, Colorado
3 Driveway Plan and Profile and Job No. 8049C,
Drive.way Sections and Site Details dated August 12, 2002
Note: All plans prepared by Schmueser Gordon Meyer, Inc.
FREIL/CH, MY[ER, LEITNER, CARLISLE
KUHNE RE ~.iDEhlCE
CTL~'r JOB NC). G$-3738
SGM 0136
5ep ub u~ 11: l~a
D~i H, Snadon S~SE595~1
The access drive alignment proposed in 1989 and the currently proposed
access drive alignment are similar. 8ook 26, pages 14 and 15 are Road Plan and
Profile and Sewer Line Profile plans, respectively. Three retaining wall details are
shown on these plans. The wails shown are cast-in-place concrete cantilever walls
with a stone veneer. Construction details are shown for walls applicable to the
following cases, a) retaining walls uphill of the road with a maximum height of 5 feet,
b) retaining walls uphill of the road from 5 to 10 feet in height and c) retaining walls
downhill of the road to a maximum height of 9 feet. Cast-in-place cantilever
retaining walls are a positive retention system once constructed. To construct this
type of retaining wall, excavation into the existing hillside is required. The majority
of sloPe failures occur during the wall construction period between excavation into
the ~.~l :.~ ..........
,,,,,s,u~ u~,u wa~, completion and bacilli. If cast-in-place concrete cantilever
walls are constructed, it appears that temporary retainage of excavations via soil
nails will be required to mitigate the potential for slope failures during construction.
Failures could effect the site being developed, the Kuhne Residence and other
structures below the site.
Plans dated August 16, 2002 show retainage of road embankment fills and
excavations into the existing hillside with soil nails, rock buttress walls and
mechanically.stabilized earth (MSE) retaining walls. Construction of rock buttress
walls, similar to construction of cast-in-place concrete cantilever wails, requires
excavations into the existing hillside. It is critical that the effects of these
excavations on the 'existing hillside stability be evaluated prior to excavation to
evaluate the potential risk of hillside failure.
Discussion
The access drive alignment planned in 1989 and currently proposed are
similar. Design level details for cast-in-place concrete cantilever walls were
provided on 1989 plans. Typical details for soil nail walls, rock buttress walls and
MSE walls are shown on the current plans. It is clearly stated on the current plans
that the typical details shown are not intended for construction. The soil nail walls,
rock buttress walls and MSEwalls need to be designed by an engineer considering
specific conditions at the wall locations.
Cast-in-place concrete cantilever walls were the most commonly used
retainagesystemin1989. During the past5tol0years,soilnailwallsandMSEwalls
have become common retainage systems used in the Roaring Fork Valley. Our
experience is that if properly constructed, soil nail walls and N~SEwalls provide a
practical solution to retainage requirements with less risk during construction and
good long-term performance. Soil nail walls are constructed using a"top-down"
procedure that resuit in less excavation face being unretainedduring construction.
This reduces risk of destabilizing the existing hillside during construction.
FREILICH, MYLER, LEIThlER, CARLISLE
KUHNE RESIDENCE
CTLrT JOB NO. GS-3738
SGNI 0137
· Sop
05 O~ 11: 13a
~a~l H. Snadon 9~92595B!
The performance of rock buttress walls depends on the rock sizes and
design factors including embedment depth, base to height ratio and drainage
considerations, We consider the existing rock wall at the site to be of poor
bonstruction. The existing rock wall provides minimal retainage.
We believe development of the site is possible. However a significant amount
of geotechnical investigation and retainage system design is required prior to
commencing earthwork atthe site. Wejudgethereisahigh risk of potential damage
to the Kuhne Residence and other structures below the site, if construction
proceeds prior to the recommended investigation and desigrh
ResultS from our review of available plans, site visit and engineering
analyses are summarized below. Recommend additional studies we believe should
be performed prior to site earthwork are also presented.
p.9
Summarized Results
Potential geologic hazards are rockfall, Slope instability and snow
avalanche. Voids from previous mining activity may also be below the
site,
Rockfall hazard is rated at medium to high. Mitigation of rockfall
including avoidance, impact barriers, berms, catchment structures or
a combination of the above will likely be required. A detailed rockfall
hazard evaluation is recommended.
The majority of the site is considered potentially unstable. Retaining
walls including soil nailed walls, rock buttress wails and mechanically
stabilized earth (MSE) walls will be required to construct the access
road. The effects of new excavations into the existing hillside stability
should be evaluated at each location. Retaining walls should be
designed by a qualified engineer. We recommend a detailed slope
stability analyses be performed.
Avalanche potential should be evaluated by someone who specializes
in snow avalanche to determine the degree of hazard that existing and
appropriate mitigation.
The existence of underground voids from previous mining should be
investigated. This investigation will involve mapping e¥idence on the
site of previous mining activity and reviewing available mining maps.
FRE LJCH, MYL£R, LEITNER, CARLISLE
KUHNE RESIDENCE
CTL~ JO~ NO. G$-3738
SGM 0138
Sep
05 O2
11: lqa D a~l H. Snadon 9~2595G1,. ~ :
p.lO
We appreciate the opportunity to work with you on this project. Should you
have questions, please call.
CTL/TH/GM/P ~.6~1, INC.
....,
//Z. '. \,~_/,. ~ ..'.',~,~'
copies sent) '
FREILICH, ~YLER, LEtTNER, CARLISLE
t~tJHNE RESIDENCE
SGN~ 0139