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HomeMy WebLinkAboutadditional.exhibits ADDITIONAL EXHIBITS SUBMITTED AT THE OCTOBER 11, 2006 PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS REGULAR MEETING EXHIBIT AGENDA ITEM EXHIBIT DATE NO. A Ordinance Authorizing Letter from 10/04/06 Execution of Concession Christopher J. Agreements for Off-Airport Castillian, Rental Car Operators at the Brownstein, Hyatt, Aspen/Pitkin County Airport Farber to Board of County Commissioners B Elam Gravel Pit Special Letter from Patrick 10-11-06 Review for Expansion of D. McAllister to Mining Area Board of County Commissioners C Elam Gravel Pit Special Letter from Patrick 10/11/06 Review for Expansion of D. McAllister to Mining Area Board of County Commissioners 0 Elam Gravel Pit Special Letter from Ann 10-10-06 Review for Expansion of Owsley, Secretary Mining Area Woody Creek Caucus to Board of County Commissioners E Elam Gravel Pit Special Letter from Mike 10/04/06 Review for Expansion of Cooper to Ezra Mining Area Louthis . Brownstein I Hyatt I Farber EXHIBIT I 4 10 -(I-OG 410 Seventeenth Street Twenty-Second Floor Denver, Colorado 80202-4437 bhf-Iaw,com October 4, 2006 Christopher J. Castilian Attorney at law T 303.223.1190 F 303.223.0990 ccastllian@bhf-Iaw.com VIA FACSIMILE AND MAIL (970) 920-5198 Board of County Commissioners Pitkin County Courthouse Plaza 530 E. Main Street, 3rd Floor Aspen, Colorado 81611 RE: Pitkin County License and Use Agreement for Off-Airport Rental Car Operators - Fee Increase Dear Commissioners: Thank you for the opportunity to present at the Commissioner's Work Session last week. We have also appreciated the professionalism and assistance offered by Jim Elwood and David Ulane from Aspen/Pitkin County Airport ("Airport"). As you know, our firm represents Vanguard Car Rental USA, Inc. and DollarThrifty Automotive Group, Inc., which each operate off-airport facilities under the brands National Car Rental and Thrifty Rental Car, respectively. Under the previous License and Use Agreement ("Aqreement"), off-airport operators paid the county seven and one-half percent (7.5%) of their adjusted gross revenues. Under the new Agreement that went into effect on May 1, 2006, the fee for off-airport operators doubled to fifteen percent (15%). On behalf of our clients, we offer the following comments for your consideration as you review the new Agreement and consider the excessive fee. Our clients acknowledge, in many ways, that the Airport is distinctive as compared to other airports of comparable size. It has a unique customer base and serves a very diverse population in the region. The rate increase to 15%, however, is not fair, is not justified, and will severely impact our customers, as well as the citizens and businesses of Pitkin County and the Roaring Fork Valley. Brownstein Hyatt & Farber, P,C. Denver, Colorado T 303.223.1100 F 303.223.1111 -Z1- Wash;ngton, D.C. T 202.296.7353 F 202.296.7009 ;r Albuquerque, New Mexico T 505.244.0770 F 505.244,9266 Asoen/Vail, Colorado T 970,945.5302 f 970.384.2360 , Board of County Commissioners October 4, 2006 Page 2 Fifteen Percent is Anti-Competitive and Not Related to Services Provided As you know, the Airport recently re-bid the on-airport rental car concessions, and as part of that process, negotiated a new license and use agreement that established the fee for on-airport operators at 10% of adjusted gross revenues. Additionally, the on-airport operators also pay a facility use fee and monthly rent for their various uses. In exchange for those charges, on-airport operators have counter space within the Airport's terminal, use of the quick-turnaround area, overflow parking and other facilities, and most importantly, direct access to existing and potential customers giving them a distinct competitive advantage. Off-airport operators, on the other hand, receive nothing in return for the 15% fee other than permission to enter the Airport premises with their vans to pick-up up pre- booked customers, Off-airport operators are not allowed to have a presence in the terminal, are not allowed to use any portion of the terminal or parking structure, and are not allowed to use the commercial/public traffic circles unless pre-arranged with a customer. In essence, the county is doubling its fee to off-airport operators without providing any corresponding increase in services offered, and that is unfair. Under Colorado law, fees are not intended to be used to defray the general expenses of government, but rather to defray the cost of a particular governmental service, Bloom v, City of Fort Collins, 784 P.2d 304 (Colo.1989). While the Airport operates as an "enterprise" under TABOR, Pitkin County is the Iicensor/permittor to the license and use agreement with off-airport operators and subject to the limitations contained in Bloom, As compared to on-airport operators, the county is assessing a fifty percent higher fee to off-airport operators who receive virtually nothing in return from the airport, The 15% fee cannot be justified based on the Airport's or the County's costs as compared to the services received by the off- airport operators, and this appears to be in conflict with the Colorado Supreme Court's reasoning in Bloom. The 15% fee also severely impacts the off-airport operators' ability to compete in the marketplace. By doubling its fee to off-airport operators, the County is forcing those operators to either dramatically lower their rates to entice customers off-airport, or pass along the significant increase to their customers. Either scenario would prevent the off-airport operators from gaining a foothold in the marketplace, thereby jeopardizing the ability of off-airport operators to compete against the significant advantage on-airport operators enjoy, The end result is less competition and higher prices for all rental car customers at the Airport. Critical Part of the Tourism Economy The Airport is critical to the region's tourism economy, and rental car companies significantly contribute to that economy. We are sensitive to the traffic and pollution issues in the Roaring Fork Valley raised by the Commissioners. Increasing the use of public transit to and from the Airport is a laudable goal, however, it is not an adequate substitution for the majority of rental car customers using the Airport. The off-airport cars are not just driven to the hotel and parked while the customers are 3 Board of County Commissioners October 4, 2006 Page 3 skiing and enjoying the community, they are driven, on average, 339 miles per contract, up and down the Roaring Fork Valley, to restaurants in Carbondale, to the hot springs in Glenwood Springs, and up to Independence Pass to see the fall colors, In all of these places, our customers are contributing to the vital tourism economy of the region by dining in restaurants, purchasing gas, seeing the sites, and staying in accommodations elsewhere in the community. Iffewer rental car operators exist, prices might increase and those tourists may be less willing to visit the many wonderful amenities in Pitkin County and the surrounding area. Furthermore, our fleets are managed in an environmentally sensitive manner by utilizing newer cars (less than 20,000 miles) which are more fuel efficient and less polluting than many of the cars and trucks in the Valley. Disproportionate to Other Airports of Comparable Size/Customer-Base The 15% fee is an unprecedented percentage and a particularly high barrier of entry, As you can see from the table below, the Airport would be the highest off- airport fee as compared to similar airports serving similar economies and customers. Location Airport Off-Airport Fee Billings, Montana Billings Logan Field International 0% Ai rport Telluride, Colorado Telluride Regional Airport 0% - flat fee of $2,845/year Jackson Hole, Wyoming Jackson Hole Airport 7% Boise, Idaho Boise Municipal Airport 7% Durango, Colorado Durango - La Plata County 8% Airport Idaho Falls, Idaho Fanning Falls Airport 8% Tahoe, Nevada Lake Tahoe Regional Airport 10% Twin Falls, Idaho Magic Valley Regional Airport 10% Grand Junction, Colorado Walker Field Airport 10% Eagle, Colorado Eagle County Airport 14%" . Eagle County's off-airport rental car fee was negotiated after a protracted legal battle between the county and a private airport operator and is disproportionate to the other airports due to the settlement terms of that litigation, if . , Board of County Commissioners October 4, 2006 Page 4 As you can see, the off-airport rental car fees at all of the similar, regional airports serving resort communities are far less than the fee of 15% at Aspen/Pitkin County Airport. We appreciate the opportunity to offer our comments on the fee increase for off- airport rental car operations at the Aspen/Pitkin County Airport. We look forward to working with you and Mr. Elwood towards an amicable resolution of this issue, Please contact me if you have any questions, and I look forward to seeing you on October 11th, ~ Christopher J. Castilian cc: Mr, Jim Elwood Director of Aviation, Aspen Pitkin County Airport Ms. Hillary Fletcher Pitkin County Manager Mr. John Ely Pitkin County Attorney 10824\2\1007158.2 / I; ... EXHIBIT 113 10-11--0(; GIDEON I. KAUFMAN* HAL S. QISHLER .. PATRICK D. MCALLISTER LAW OFFICES OF KAUFMAN, PETERSON & DISHLER, P.C. BROOKE A. PETERSON OF COUNSEL . ALSO ADMITTED IN MARYLAND .. ALSO ADMITTED IN TEXAS 315 EAST HYMAN AVENUE SUITE 305 ASPEN, COLORADO 81611 TELEPHONE (970) 925-8166 FACSIMILE (970) 925-1090 October 11, 2006 Via Hand Delivery Chairpcrson Pitkin County Board of County Commissioners 506 E. Main Aspen, Colorado 81611 Re: Elam Gravel Pit Special Rcview for Expansion of Mining Arca - Continued Public Hearing from Junc la, 2006. Dear Commissioncrs: This finn represents General Ute, LLC, Apogee Associates, Inc., Little Woody Creek LLC, andJamm Associates. These parties continue to oqjecl and remain strongly opposed to thc expansion OftllC mining pit. Please see attachcd letter from Junc 13,2006 previously submittcd to tllC BOCC on behalf of tllese entities regarding tllis matter. If you havc any questions, please call. Thank you. Sincerely, Kaufman, Peterson & Dishier, P.c. A Prole 'ional Corporation -2!L~ lister {, '1 GIDEON I. KAUFMAN. HAL 5. DISHLER'" PATRICK D. MCALLISTER LAW OFFICES OF KAUFMAN, PETERSON & DISHLER, P.C. BROOKE A. PETERSON OF COUNSEL . ALSO ADMITTED IN MAIIlYLAND .. ALSO ADMITTED IN TEXAS ]15 EAST HYMAN AVENUE, SUITE ]05 ASPEN, COLORADO 81611 TELEPHONE (970) 925-8166 FACSIMILE (970) 925.'090 October 11, 2006 EXHIBIT IG IIJ -1/ -()(. LJ COpy VIA HAND-DELIVERY Chairperson pitkin County Board of County Commissioners 506 East Main Street Aspen, CO 81611 Re: Elam Gravel pit Special Review for Expansion of Mining Area Dear Commissioners: This firm represents General Ute, LLC, Apogee Associates, Inc., Little Woody Creek, LLC, and Jamm Associates. General Ute, LLC is the owner of Lot 4, Chaparral Aspen, Apogee Associates, Inc., Jamm Associates, and Little Woody Creek LLC all have significant real estate holdings in Woody Creek located along Little Woody Creek Road, which is to the east of the existing mining pit and proposed expansion. Each of the landowners described above are strongly opposed to the expansion of the mining pit. The existing mining pit operation already creates significant negative impacts on each of these landowners in the form of both unacceptable noise levels and ambient dust levels. Regarding the memorandum prepared for this hearing, we have the following comments: 1. At Page 3, Paragraph B, it states that there is "no evidence that the proximity of the operation has or will have impacts on Woody Creek. . .". This is simply not true. Again, the existing impacts from the existing operation are already significant and totally unsatisfactory to each of these landowners. Despite allegedly being in compliance with noise level requirements, the memorandum provided by the Planning Staff at the recent hearing before the Board of County Commissioners regarding permit renewal clearly states that constant noise existed. 11 , Chairperson pitkin County Board of County Commissioners October 11, 2006 Page 2 2. At Page 4, Paragraph D, it states that "there will be impacts, most certainly visual impacts, on the neighborhood from the proposed expansion, however, the Applicant has provided a mining plan that is responsive to concerns created by visual impacts". This is totally unacceptable to these landowners. It is our strong opinion that the Applicant has provided little to no documentation or other supporting information that is responsive to the concerns of these landowners, including visual impacts. The Applicant's submittal does not show visual impacts from the east, from the Chaparral Aspen area, and other properties along Little Woody Creek Road. 3. At the top of Page 5, it states "to Staff's knowledge, smoke and odor have not been an issue in the past, and the proposed expansion will retain similar operations". Again, this is simply not true. Complaints about noise and dust have been brought to the Commissioners' attention in the past. In fact, at the recent hearing before the Commissioners regarding renewal of the existing permit for the mining pit, General Ute, LLC strongly objected to the renewal of the building permit. Again, review of the memorandum prepared for that hearing, clearly shows that there are continuing noise problems regardless of whether noise level prohibitions are being exceeded. 4. At Page 5, paragraph F, it states that "the base of the pit is to remain above the static water table, and public or private water supplies will not be damaged or depleted from the mining activities". We respectfully submit that this aspect of the proposed mining expansion should be investigated further. We would suggest that the County engage a third party hydro- geologist or engineer to look into this further. We know already from the recommendation provided by pitkin County Environmental Health and Natural Resources that there currently exists "intermittent creek discharges directly to Woody Creek and has high potential for water quality impairment of Woody Creek directly upstream of the Town of Woody Creek, if not managed properly". Issues regarding water supply and quality are probably the most crucial in any proposed land use activity, let alone mining activity. s. At Page 5, Paragraph G, it states that "although ~ Chairperson pitkin County Board of County Commissioners October 11, 2006 Page 3 proposed expansion does not lie within designated wildlife habitat or hazard zone, it will have limited impacts on wildlife habitat and potential impacts on water quality". The Division of wildlife in its June 1 letter to pitkin County Community Development very clearly states that: "the area within the mining pit permit area designated for expansion does not lie within mapped winter range area; however, upon site inspection, the mountain shrub ridge and hillside receive significant winter range use as evidenced by the amount of browsing and clubbing of the vegetation, tracks and droppings. The ridge is an island of sagebrush, one of the fastest disappearing mountain shrub habitat types in the valley. Other major winter forage species of oakbrush, serviceberry, and bitterbrush are also found. These mountain shrub habitats provide habitat for a variety of wildlife, including small and medium size mammals, songbirds (brewers sparrow), mule deer, and elk. They also provide hunting areas for raptors, owls, and eagles. Black bear occupy the are, but will forage mainly in the oak brush/serviceberry complex along the northeast side of the property along Woody Creek." "Expansion of the pit will result in significant loss of winter range habitat, displacement of wintering big game to less preferable winter range areas, as well as other wildlife species will occur... The loss of this habitat is significant ..." We respectfully submit that this is a scathing review by the Department of wildlife, and had this review been provided for any residential development, we have little doubt that this would be a major cause for concern by the Commissioners. Again, regarding water resources, the Planning staff very clearly states that the Applicant is not even able to maintain compliance with the existing water resource protection plan. The foregoing is intended only as a cursory discussion of some of the issues which are raised by this mining pit expansion. Chaparral is prepared and will provide a more detailed response, if and when necessary. The position of this Board on mining activity is and has 1 Chairperson pitkin County Board of County commissioners October 11, 2006 Page 4 always been very clear. The answer is "no". We do not feel that this mining pit should receive a lesser standard of review. We respectfully that "mining" is mining, whether it be gravel or natural resources. My clients feel that this mining pit creates significant negative environmental impacts, including water, dust, wildlife and visual. The existing operation should not be allowed to expand, and we respectfully request that the Commissioners deny the application. Sincerely, KAUFMAN, PETERSON & DISHLER, P.C. A Profess' al Cor oration By Patrie PDM/bw )! EXHIBIT ID /tJ-//-t!& Woody Creek Caucus Planning Commission P.O. Box 297 Woody Creek CO 81656 TO: DATE: FROM: Pitkin County Board of Commissioners October 10, 2006 Ann Owsley Secretary, Woody Creek Caucus RE: Elam Annual Review and Pit Expansion Commissioners, At our meeting on September 28, the Woody Creek Caucus took under consideration the alternative excavation ofthe Elam Gravel Pit. The Caucus had previously proposed that Elam present a new plan to change the direction of taking gravel from the expansion of the pit. We preferred that the excavation happen first from the direction of the highway side, instead of taking from the Woody Creek Road side. After a presentation at our meeting by Elam, the Caucus again chose the "Highway Side" plan and referred the issue to the Woody Creek Planning Commission to refme. At its meeting on September 30, the Planning Commission approved the revised plan, and added a further request. We would like there to be a baseline study of the terrain to be excavated, before the site is disturbed. Our concern has been that efforts at future reclamation of the area need to be more in keeping with the native vegetation that exists now. Elam has only stated that they will do a "grass" mixture, and now have added that they will also plant some sage, but that is no guarantee that a true restoration will occur. We respectfully request that a professional conservation biologist be engaged to analyze the top soil, so that the particular mix may be restored to the area, and that a report be generated by that professional which will be used for reclamation efforts. Thank you. Sincerely, +'^- 'O~~ Aim Owsley , Secretary Woody Creek Caucus ;1 ~u~ ~ /J;&~ Jc(]k~5' Page 1 of3 Ezra Louthis from: Mike Cooper [cooper@cooperwalker.com] Sent: Wednesday, October 04,20064:21 PM To: Ezra Louthis Subject: RE: Elam Special Review EXHIBIT I ;- /c:? ;//-a' Ezra, Yes, the District enthusiasticaliy supported the proposal. Our experience and observations with Eiam is that they are a company that keeps their word, is sensitive to local concerns, is environmentally responsible and are a modei for a business with a stake in the future of the cOf\1munity. mike Michael Cooper Managing Broker CooperWalker Real Estate LLC 400 E. Hyman Aspen CO 81611 970,920.4500 970.920,1085 facsimile 970.379.4924 cellular Ps2: do you still want the letter? From: Ezra Louthis [mailto:ezral@co.pitkin.co,us] Sent: Wednesday, October 04, 2006 4: 10 PM To: Mike Cooper Subject: RE: Elam Special Review Mike, unfortunately the hearing is next wednesday, and I have to have the report done by tomorrow afternoon. Did the District support the proposal? thanks, 10/5/2006 )Q