Basalt permaculture farm will stay open, legal access on the road up remains in question

The legal access “can of worms” remains open on Cedar Drive in Basalt after the Eagle County Board of County Commissioners denied a special use-permit for a permaculture farm when the applicant could not definitively prove they had legal access on Upper Cedar Drive.  

The Central Rocky Mountain Permaculture Institute will stay open and continue to offer the majority of its agriculture programming. Camping on the property and the two-week overnight permaculture design course will not be allowed. 

Jerome Ostentowski has taught sustainable farming practices at CRMPI for nearly four decades and said he has spent hundreds of thousands of dollars on the effort to keep it open after his retirement. After the commissioners denied the application, he felt dejected.

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“All this work we’ve done has amounted to nothing,” he said after the Tuesday meeting. “Really, the neighborhood is losing.”

Because Colorado is a right-to-farm state, he will keep CRMPI open while he and his team decide next steps. 

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The meeting at the El Jebel Eagle County building was set to determine whether or not Osentowski and his team could prove legal access on Upper Cedar Creek Drive — an issue brought up by neighbors during public comment earlier in the special-use permit process.

Land-use planner Maya Ward-Karet and attorney James Knowlton presented what the Ostenowski camp viewed as proof of legal access during the meeting, which had been continued from Jan. 10. 

But, as county attorney Matt Peterson explained, the legal access had not been confirmed by a judge and advised the commissioners that whether or not a road is public is at the discretion of district courts. 

“(The applicant) asserted that they believe that road is public under an old federal statute that’s commonly referred to as R.S. 2477,” Peterson said. “To make a long story short, R.S. 2477 was a power that Congress had granted to essentially allow people as they were settling throughout the western United States to form roads, so that they could access their property.”

He added that the burden of proof on whether or not the road is public falls with the applicant. 

That process to go through the courts to determine legal access could take up to two years, according to Peterson and Ward-Karet. 

“Jerome has already spent an enormous amount of funds doing the research to get to this point,” said Ward-Karet, explaining their intent should the commissioners deny the application. “And, because the decision you make today will affect everyone else in the neighborhood, should it be determined that additional documentation is required, we plan to work with the Road Association and other members of the neighborhood to pursue legal action to get an easement specifically recorded for these two portions of road.”

Ultimately, the commissioners decided that because the applicant could not prove legal access, it meant that other standards to grant the special-use permit could not be met. Changes like updating the operations plan for safety improvements, a plan to shuttle visitors to reduce road traffic, and the future of CRMPI after Osentowski’s retirement had all been discussed in the process but went down with the special-use permit.

“I’m terribly disappointed that this is where we’ve gotten to because I really feel like that community had the opportunity to make this property safer … with the conditions that were going to be put in place,” said Commissioner Jeanne McQueeney. “I’m so disappointed you’re all not able to work this out.”

Faced with the option to withdraw the application or let the commissioners deny it, Osentowski and his team chose to let the commissioners deny it 2-0. Commissioner Kathy Chandler-Henry was absent.

They wanted the record to show that the application had been denied because of a legal access issue, Ward-Karet said. And once they are able to prove legal access, they hope that will result in a speedier application when they re-apply. 

But that legal effort will take significant time and funds. Osentowski said he hopes to recruit as many neighbors as possible to determine legal access, as access on the road affects them all.