Basalt struggling with being tough guy in land-use disputes
August 26, 2002
Basalt town officials are struggling to decide if they want to maintain a low-key approach while dealing with people who violate the zoning code or start cracking down, Aspen-style.
Basalt is leaning toward more aggressive enforcement due to changes in personnel, more layers of regulations and increased willingness by owners of multimillion-dollar homes to push the envelope on what’s allowable.
Town manager Tom Baker said the zoning code appears black and white in many cases, but aggressive enforcement by the staff recently has spurred some citizens to complain of “unreasonable” treatment.
“We have been trying to get along with people for a long time in Basalt,” Baker told the council in a meeting last week. “That transition period is going to be difficult.”
Baker said that escalating real estate prices are bringing different types of buyers and developers to Basalt. The new breed can afford to hire land-use attorneys who look for ways to get around regulations.
Baker asked his board to clarify how stringent an enforcement it wanted, especially in the case of special guidelines for construction in Environmentally Sensitive Areas, or ESAs. On the one hand, the board has given the message that it wants the staff to be “reasonable.” On the other hand, some members have suggested that the “letter of the law” is unreasonable, he said.
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Baker sought a definition of “reasonable” action.
Councilwomen Jacque Whitsitt and Anne Freedman pushed for strict enforcement of the zoning, building and land-use codes.
Whitsitt said she felt the town had been “lax” on enforcement in the past. She said it should enforce its code or, if it is unwilling to do that, change the code.
Freedman said she is particularly concerned about Basalt getting a reputation for being too lenient on people who build without approval, then seek a solution.
“One message that has to come through clearly is that you don’t go through ignoring the building code then come to us for an adjustment,” Freedman said. “None of this ‘I’ll do it first then make the change.’ That’s totally unacceptable.”
She suggested Basalt enact stiff fines – such as $20,000 or even $50,000 for violators. Baker said that wouldn’t be sustainable nor would it solve the dilemma of defining what level of enforcement the board expects.
Mayor Rick Stevens and Councilman Leroy Duroux warned that interpretations of rules like the ESAs may have become too aggressive and gone beyond the intent. Recent enforcement actions have created “unintended consequences,” Stevens said.
Two recent enforcement cases have sparked internal squabbling among the staff as well as the debate among the Town Council.
Contractor Jeff Lewin of Lewin Construction was issued a stop work order, known as a red tag, last month for work on a house at 210 Riverside Dr. The town staff alleged that he performed work in the Environmentally Sensitive Area that wasn’t approved.
While working on a house that was eventually sold to new Aspen Skiing Co. senior vice president David Perry, Lewin built a deck rather than a patio and he replaced a second deck with a larger version.
Lewin said the larger deck was an inadvertent mistake, and he was willing to remove the 14 extra square feet. The construction of a deck rather than a patio was a result of miscommunication, he said.
Drawings approved by the town showed a deck, Lewin said. Documents allowed only a patio of the same size.
To try to fix the situation, Lewin made an offer that some town officials construed as a “bribe” but that Lewin considered a practical solution.
Lewin said he didn’t think it made sense to tear out the 8-by-15-foot deck and replace it with a patio of the same size. Instead he offered to contribute the estimated cost of the work, about $2,000, to the town for use in a playground or for a charity of its choice.
When Mayor Stevens recounted the offer to the Town Council, Councilman Jon Fox-Rubin labeled it a bribe. Lewin said it was not intended to be a bribe, and he noted it wasn’t proposed to benefit any individual.
Whatever it was, town engineer Betsy Paussa said she felt the offer was improper. Lewin also suggested the solution to her.
“I of course said ‘no,'” she said. “I considered it an offer that the town would never consider under any circumstances.”
Paussa said the town’s Technical Review Committee, comprised of the attorney and various planners and public works officials, unanimously felt that Lewin should tear out the work and build what was approved.
The Town Council indicated that the staff took the appropriate action.
Construction at a home just two doors down from where Lewin was working split the Technical Review Committee and town board.
In that case, a homeowner constructed a fence and retaining wall over the bank of the Fryingpan River without getting an ESA review. A review might have prohibited the retaining wall, Paussa said.
In a split decision, the staff let the homeowner keep the improvements. The majority felt it would be unreasonable to make the homeowner remove the fence.
“I personally didn’t agree with that,” said Paussa. “Sometimes I tend to be more of an environmentalist.”
Town council members didn’t debate that case in detail, but it was clear they, too, were split on the appropriateness of enforcement. The board did pledge to revisit the intent of the ESA regulations at a later date.