Aspen developer claims NIMBYism
A group of homeowners in the Oklahoma Flats neighborhood is suing the city of Aspen, arguing that one of its citizen boards abused its discretion when it gave approval for a developer to build a home near them.
The complaint, filed last week by a group of eight individuals who own property near the proposed development, claim the city’s board of adjustment exceeded its jurisdiction when it gave Peter Fornell setback variances on a piece of land he plans to build a house on, located at 777 Gibson Ave.
Through their lawyer Lance Cote, the neighbors also argue that Fornell does not have a right to develop the lot because it did not go through a public-approval process.
That’s contrary to the legal opinion provided by City Attorney Jim True, who concluded in 2016 that the property is a legal lot with an existing development right.
Fornell bought the oddly shaped parcel, which abuts the heavily used Oklahoma Flats Trail, in 2018 from local attorney Doug Allen for $800,000.
“I knew it was going to be hard but not because of these people,” Fornell said, adding he believes it’s a classic case of NIMBYism (Not In My Backyard) levied by wealthy homeowners. “I’ve never expected to have these neighbors try to turn a local inside out.”
Cote said the NIMBYism characterization is inaccurate, and his clients are concerned not only about what’s legal but also impacts to the trail.
The city’s planning staff recognized impingements to neighboring properties and the trail, and recommended denial of the setback variance.
But the board of adjustment determined, based on True’s position that it is a developable lot by right, to grant the variance so setbacks are 5 feet in the rear of the house, 10 from the street and as little as 3 on the side.
“Setbacks serve a variety of important purposes, inclusive of buffering between properties and providing areas to conduct maintenance on a structure without having to perform work from an adjacent property,” reads a memo from the city’s Community Development Department. “None of which can be met by a three feet setback in a residential zone district.”
Fornell said he recognized at the time he bought the parcel that it would be challenging to build a home on it.
That is why he asked for setback variances, arguing there was a hardship.
Chris Bendon, the land-use planner for Fornell, said the city’s setback standards would only allow a sliver of the property to be built on, eliminating any development potential.
“Planners like flat, square lots,” he said. “This one is a bit kooky.”
The property has been described as “bizarre” because it is steep and has a sidewalk easement on it, as well as a city of Aspen trail, according to city planners.
The 7,700-square-foot parcel is a remnant of several subdivisions from decades ago.
Because of the challenges on the property, which allows for a single-family home, the net lot area is 3,600 square feet.
Fornell plans to build a 2,430-square-foot house, with a lap pool in the yard.
He said he wants to build a house for himself and isn’t using the lot for spec development, as some have suggested.
In their complaint against the city, the plaintiffs describe Fornell’s hardship as one he brought on himself.
“It’s a self-inflicted hardship that they shouldn’t be bailed out on,” Cote said last week.
Fornell said the house is 19 feet from the trail; at least one other property in the area is closer than that.
Tim Hurd, who owns a house on Bay Street, wrote an objection letter to the city of Aspen, noting that he gave up some of his property to the city and paid money to make the Oklahoma Flats Trail safer.
“I NEVER would have granted the significant additional easement on my property and contributed $750,000 of my own money to create a better, safer, more beautiful trail if I thought just a few years later an opportunistic developer would be given unprecedented variances by my ‘partner’ (the city of Aspen) and build a house on top of it!” Hurd wrote.
Hurd is one of eight neighbors suing the city, demanding that it declare the property does not possess any development rights.
Cote said last week that the parcel never went through a public-hearing process for either subdivision or the city’s growth management quota system review.
He said he doesn’t agree with True’s assessment that the lot has development rights.
“He hasn’t articulated his position,” Cote said.
True said based on his review of documents related to the parcel, it’s a developable lot.
“My opinion is that it wasn’t required,” he said of a public review.
Hurd, along with plaintiffs Vinod Gupta, John Carbona, Dick Volk, Edward W. Bradley, Janie G. Bradley, Eric Carlson and Bill Budinger, are challenging that position not only in court but appealing the board of adjustment’s decision to the city’s Community Development Department.
“They are using this to keep the clock ticking longer and their tactic is to wear me down,” Fornell said. “It’s now a war of attrition and money.”
Mark Tye, a longtime friend of Fornell’s, said something similar at the board of adjustment’s June meeting.
“A slew of lawyers that want to stop a longtime local to build a home reeks of what I don’t like about this town,” he said, according to the minutes of the meeting. “What he is proposing is reasonable for that lot. I don’t think what Peter is proposing is a gamble. This reeks of ‘not in my backyard.’ I say yes in my backyard.”
It’s not just Oklahoma Flats against Fornell’s plan.
Patti Clapper, who lives in the nearby Smuggler mobile home park, addressed the board of adjustment with her concerns.
She reaffirmed them Thursday.
“It’s about public safety … that trail is heavily used,” she said. “It’s a very, very complex lot. … It’s literally a narrow ridge right down along the bike path.
“The impact of anything there will be huge,” he said.
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