Base Village vesting almost falls through due to outside talks
October 14, 2014
A Snowmass Village town councilman accused three of his colleagues Monday of communicating with Related Colorado about its application outside of the public review process.
After more than two hours of negotiation between the council and Related over new agreements regarding the stalled Base Village project, Councilman Chris Jacobson delivered a long soliloquy in which he said that he believed there had been ex-parte communication between Related and council members Fred Kucker and Markey Butler as well as Mayor Bill Boineau.
The elected officials ultimately approved the application, extending Base Village vesting for the next four years, by a 3-2 vote. Jacobson and Councilman Jason Haber dissented. The officials in the minority expressed discomfort with even taking a vote on the application Monday, concerned that the council was setting itself up for litigation.
Jacobson alleged that Kucker had discussed the application with Don Schuster, Aspen Skiing Co.'s vice president of hospitality development. Skico is under contract to purchase Base Village property from Related and build a hotel there, pending Monday's approval.
"I never had ex-parte communication with an applicant," Kucker said in response to Jacobson's claims. "Don Schuster is not an applicant."
Kucker had told Related in public that he would not approve its application unless it would pay damages for not meeting deadlines on the privately owned buildings in Base Village, he said. Schuster had told Kucker that Related would add a clause to that effect before the next meeting, and when the documents for the Sept. 8 meeting were released without that information, Kucker called the Skico executive.
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"Probably an hour or two later, he called me back and said, 'They're going to submit a new application with the liquidated clause in it,'" Kucker said. "I thought it was terribly important that we all have in front of us the application that the applicant was ultimately going to (present)."
Related offered at the Sept. 8 meeting to pay $1,500 a day, up to a total of $1 million, for every day that completion of the second phase of the Viceroy hotel went past deadline. That day, the council gave the application its first vote of approval, with the same 3-2 majority.
According to Jacobson, Kucker also commented that Butler was negotiating the amount of those liquidated damages with Schuster. Butler defended herself Monday by saying that she had a conversation with Schuster the day after a council meeting to clarify a different issue with the Skico's Base Village hotel.
"I did not negotiate nor did I think it appropriate to bring up anything financial," Butler said. "That is hearsay."
Jacobson did not accuse the mayor of ex-parte communication but said he believed Boineau was aware of it and did not act in time to stop the officials from voting on the first reading of the ordinance and approving the new development agreements on Sept. 8.
Resident Arnie Mordkin, an attorney, questioned whether Schuster should be considered an applicant since he had publicly disclosed Skico's contractual relationship with Related early on in the review process. As a private attorney, had Kucker been his client, he would have advised him not to respond, Mordkin said.
Haber thanked Jacobson for bringing the issue to light and advised against taking a vote on the ordinance Monday.
"I think we are compromised in terms of the validity of any action we take today," Haber said.
An inquiry under Colorado's Rule 106, which allows members of the public to appeal land-use and development decisions, could cause the council's decisions to be "stayed for months," Jacobson said.
"This last discussion smacks of politics, like, it stinks of politics," resident Bob Sirkus said. "You have Mr. Haber running for mayor and his sidekick Mr. Jacobson making accusations about the rest of council … in the middle of campaign season."
Sirkus also is a candidate for local office this year, running for a seat on Town Council in the Nov. 4 election.
Schuster came to the podium and confirmed that he had spoken to Kucker and Butler and added that he had called all of the elected officials at different times to discuss Skico's planned hotel.
"Face it, we're all in a small town," Schuster said.
In spite of the allegations, the three council members in the majority decided to move forward with a vote on the ordinance.
"I'd like to thank the Snowmass community, its town staff as well as its town council and planning commission for allowing forward progress to continue in Base Village," Romero said. "The extension of the interim Base Village vesting rights in exchange for a series of developer milestones is a path forward that we all need to ensure the future health of Snowmass' tourism economy."
Related must submit an application to amend the planned-unit development for most of the buildings in Base Village by Oct. 15, according to the new development agreements. Keeping its vesting is now conditional on it meeting that and 21 other milestones, one of which it already fulfilled by submitting plans for a roundabout on Brush Creek Road.