Aspen Mountain land owner challenges backcountry zoning
August 19, 2010
ASPEN – A company that purchased land on Aspen Mountain from Ed Smart in 2004 is waging a legal battle against Pitkin County and several other parties to try to earn development rights for a home about a mile outside of the ski area.
Imago LLC is fighting the legal battle on two fronts. It claims its 50 acres on a prominent point overlooking Castle Creek Valley were inappropriately rezoned by Pitkin County in 2005 from AF-10 to rural and remote, significantly shrinking the size of development that is allowed.
Imago filed a second lawsuit in late July against Pitkin County, the Aspen Skiing Co. and multiple individuals to try to gain legal access from Summer Road on Aspen Mountain to its landlocked mining claims.
The issues are linked in an important way, according to Imago attorney Ray Wall of Stillwater, Okla. The county wouldn’t review Imago’s development application in 2005 because it ruled the owners couldn’t prove they had adequate access to their land, he said. The county then rezoned a significant amount of land on Aspen Mountain and Richmond Ridge to rural and remote, including the mining claims owned by Imago.
Imago wants to establish the access in case it prevails in the rezoning dispute. The zoning case was tried before Pitkin County District Judge James Boyd in April. A decision is pending.
“That was the only challenge to rural and remote zoning that we’ve seen,” said Assistant County Attorney Chris Seldin, referring to the mid-2000s rezoning.
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Pitkin County hasn’t been served yet with the second lawsuit filed by Imago. The county is defending its handling of the rezoning and the Imago application.
Aspen Mountain is a patchwork of private and public lands. The county has traded many of the mining claims it acquired after the silver crash of 1893 to the U.S. Forest Service. The rezoning of significant portions of private land in the 1990s and 2000s reduced the development potential.
“The county’s position has been that large homes requiring extensive services are not appropriate on upper Aspen Mountain,” Seldin said. “That sort of development might lead to demands to plow [Summer Road], which would be incompatible with the county’s management plan for the road and, obviously, the operation of the Aspen Mountain Ski Area. The rezoning ensures that this sort of development will not happen.”
Imago bought six patented mining claims from Smart in March 2004: the Deluge, Extension, Republic, Black and Eclipse lodes and Silver Tip, according to the lawsuit filed last month. Smart, who has a long history of mining claim wheeling and dealing on Aspen Mountain, also conveyed easements for vehicular access across adjacent property to the 50 acres acquired by Imago, the lawsuit says.
Wall said Imago is controlled by Bruce Blackwell, a resident of Oregon. At one time he considered applying to build a facility that an environmental nonprofit organization could use for seminars, according to Wall. A home would be the most obvious use of the site if Imago prevails in the litigation. The most recent lawsuit said the prior zoning allowed for homes of up to 15,000 square feet, but steep slopes and other natural obstacles would drastically restrict the size of the house that could be built on the Imago property.
Wall said his client has no desire to try to gain vehicular access in the wintertime. Access would be by snowmobiles or skis, he said.
An existing access road to the property peels off of Summer Road to the west of the bottom terminal of the Ruthie’s Lift along the Aztec Trail, roughly halfway up the west side of Aspen Mountain. The old road passes by property once owned by Jim Blanning. At least 10 mining claims lie between the ski area boundary and the Imago property.
The lawsuit contends the parties that hold interests in those claims are: Aspen Skiing Co.; Continental Divide Co.; Aspen Silver Water LLC; the estate of Edwin Smart; Pitkin County; Maco Stewart; Arthur Pfister; Nicholas and Margaret DeWolf; John F. Coughenour; Richard P. Fitzgerald; Steven M. Vance; Alonzo A. Vance; James C. Bull; David B. Savitz; Thomas R. Raines, trustee; Harold D. Swanson, trustee; Susan Tixier; “and all unknown persons or entities with an interest in the real property.”
Imago wants a judge to declare that it has legal access through those properties.
Aspen Skiing Co. attorney David Bellack said he hasn’t been served yet with the lawsuit. He noted that the Skico, along with numerous other parties that owned an interest in mining claims in that area, deeded them to the U.S. Forest Service after the rezoning to rural and remote. It couldn’t be determined if the mining claims that were deeded are the same ones involved in the litigation.
The lawsuit erroneously states that Smart is deceased. He resides in the Heritage Park Care Center in Carbondale, according to numerous sources.