Pitkin County grants Celestial ability to build, but no additional TDRs
July 22, 2014
After nearly five years of litigation, Celestial Land Co. has received approval to build a home on its property located on Bulkley Drive off of Maroon Creek Road. At the same time, the group opposing the development at the requested site gained the approval that limits the size of the proposed building.
That's what the final determination was on Monday at a special meeting held by the Pitkin County commissioners. The commissioners voted to approve the proposed activity envelope and site plan review, but not until the commissioners added an amendment to not allow the addition of two transfer of development rights for the property.
"It was a split decision," said Glen Horn, an Aspen land planner who represented the group opposed to the development, known collectively as "Neighbors." "The question about the TDRs was a discretionary decision. The board felt it wasn't an appropriate site for a house the size proposed. The county essentially approved the applicant's site plan, but with a smaller house."
The Neighbors group consist of the Roaring Fork Land & Cattle Co., JM Skyways, the James Bulkley Family Trust and Katherine Bulkley 2006 Family Residence Trust and the Bruce E. Carlson Trust. Glenn Horn, Gideon Kaufman and Mark Hamilton represent Neighbors.
Celestial Land Co. represents property owner Robert Friedland.
Monday's meeting was a continuation from a May 28 hearing in which county staff made its presentation and recommendation of action to the commissioners. Celestial then made its presentation, after which the meeting was continued.
At Monday's meeting, the Neighbors group made its presentation, followed by questions, public comment and a rebuttal from the Celestial group before the commissioners made their vote.
The Celestial team was requesting approval to build a 13,250-square-foot home and caretaker unit on its 35-acre property.
That area is zoned to allow homes up to 5,750 square feet. Celestial already secured one TDR that allows it to build up to 8,250 square feet of building on the property and was hoping to gain two more that would have increased the building size allowed to 13,250 square feet. The Celestial team argued that the two TDRs would be used to build nearly 5,000 square feet of garage and living space underground and would only help to decrease the visibility of the planned home.
The group wants to build the new home on the edge of an avalanche-hazard zone. They also requested to put in debris flow and avalanche-mitigation structures and develop a debris-flow basin.
Neighbors argued that the site chosen for the new home is near the apex of an avalanche alluvial fan and would sit in an extremely dangerous spot. They offered an alternative site plan for a smaller home that would sit several hundred feet further from the apex of the avalanche zone.
"It's hazard avoidance versus hazard mitigation," Horn said. "Moving to a lower site area is much safer."
They also recommended to the board that the additional two TDRs would allow for too large of a building structure in such a rural area.
The Celestial team countered that the neighboring Pritzker mansion is larger than their proposed building and also is built in an avalanche-hazard zone.
"I hate to compare our project to the Pritzkers." Fognani said. "But in terms of sight disturbance and overall footprint, it pales in comparison to what nobody seems to find objectionable."
The commissioners each spoke before voting on the site plan and allowing the additional TDRs.
Commissioner George Newman was comfortable with the suggested building site but didn't believe the TDRs fit in such a constrained site. Commissioner Rachel Richards preferred the alternative building site and didn't believe putting a home so close to the avalanche apex area was a good idea with safer options available. She also didn't support the use of additional TDRs.
Commissioner Steve Child said he didn't believe the first TDR should have been approved, and he didn't support additional TDRs either.
"Putting this house at the apex of an avalanche zone is wrong," Child said. "Somewhere between the proposed site and the alternative site would work better."
Commissioner Michael Owsley said he checked with the county senior planner and the Celestial proposal met county code, so he supported enforcing the code and the application.
Commissioner Rob Ittner supported the application and the additional TDRs.
"We have a land-use code, and it's there to protect the quality of life in the county," Ittner said. "It's also there to protect the neighbors and to protect the property owners themselves. The property owner needs to know just what they can do when they buy a piece of property for X million dollars. We can't change the game on them."
The commissioners voted, 3-2, to approve the proposed activity envelope and site-plan review with commissioners Richards and Child opposed. The amendment to not allow the addition of two TDRs for the property also gained a 3-2 approval vote, with commissioners Owsley and Ittner opposed.
While both sides won part of what they were seeking, both came away disappointed.
"We're disappointed, obviously, that we didn't get approval for the use of the two additional TDRs," said John Fognani, a lawyer for the Celestial group. "We think if you can't approve the TDRs for utilization of extra space that's underground, what can you possibly use them for? We're happy that our location has been accepted and approved. We'll just have to decide where we go from here."
Horn said while limiting the size of the home was important, he was hoping the commissioners would err on the side of safety when it came to the building location.
"I'm disappointed," Horn said. "I thought there was a discretion in the code to move the house to a safer location, which also results in less site disturbance and less clearing of the trees. I thought there was code support for that. As far as a next step for the 'Neighbors?' I'm anticipating this is over."