BOCC to Droste: No takings | AspenTimes.com
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BOCC to Droste: No takings

Allyn Harvey

Snowmass developer Peter Droste’s request for a takings determination was soundly denied yesterday by the Pitkin County Commissioners, setting the stage for a showdown in either state or federal court.

The commissioners found that a previous denial of Droste’s application to build a 15,000-square-foot home, and a four-mile, $4 million driveway/road does not constitute a takings. The road would run from Brush Creek Road to the top of a ridge overlooking both Owl Creek and Brush Creek.

Takings is a legal concept that comes from the Fifth Amendment of the U.S. Constitution, which says private property may not be taken for government use without proper compensation. Droste maintains that by denying his application to build a road to 304 acres of the family property, the county is, in essence, taking his land from him.

Droste’s attorney, Wayne Schroeder, promised an appeal of yesterday’s ruling, calling it “the only alternative” the family has. Schroeder declined to say whether the legal complaint would be filed in state or federal district court.

The Droste family – represented by Peter Droste, Schroeder and planning consultant Francis Krizmanich – maintains that a 1996 agreement with the county gives the family the right to build the road. A copy of that agreement, which places a conservation easement over 99 acres of the family holdings, confirms that an access road was part of the deal. If built, according to the agreement, it would serve property on the ridge belonging to the Seven Star Ranch as well as the Drostes.

The Droste family has been paid about $8 million by local taxpayers in exchange for placing two conservation easements over some of its property – the first over 99 acres in 1996, the second over 500 acres in 1999.

But circumstances have changed since the 1996 agreement. The owners of Seven Star Ranch, who are also planning to build homes on the ridge, are currently negotiating an alternative access from Owl Creek with the town and property owners in the Owl Creek Ranch subdivision, according to Snowmass Village Mayor T. Michael Manchester. So, they are less interested in building the road from Brush Creek with Droste.

Last spring, the county planning department declined to even consider Droste’s application for a road without an accompanying application to build a single-family home. The matter that was up for reconsideration by the county commissioners yesterday was the denial of the 15,000-square-foot home that the Drostes proposed to go with the road.

To get past the county restrictions on home size, the Drostes proposed building the house on 35 acres of the land on the ridge and combining it with 465 acres from the land in the valley that is covered by the conservation easement, which is allowed in the agreement. Lots of 500 acres or more are exempt from the county’s growth management rules, and the limit of 5,750 square feet in floor area.

But earlier this winter, county hearing officer Jim True denied the Droste application because it was not in line with the county’s 1041 regulations, which limit development in environmentally sensitive areas. He specifically pointed to the fact that the proposed home would be located in sensitive elk habitat.

Attorney Schroeder argued that the denial of the home was based on environmental regulations that are not allowed under state law. He pointed out that the state law that authorizes 1041 standards specifically exempts property that was zoned for single-family homes prior to its adoption in the mid-1970s.

“It’s a single shot denial, using one regulation which I call the Elk Regulation,” Schroeder said. “We’re going to take a shot back at the regulation if this proceeds past this hearing.”

The commissioners were undeterred by Schroeder’s threat of a lawsuit. Their 5-0 denial focused on several issues, but rested primarily on the concept of “self-inflicted hardship.”

“You, by your own choice alone, entered into an agreement with the town, which agreed to pay you $7.5 million for a conservation easement,” said County Commissioner Jack Hatfield.

Hatfield pointed out the Drostes were fully aware that the most appropriate section of their property for development was in the valley along Brush Creek, which is the very land covered by the conservation easement with the town of Snowmass Village.

Commissioner Shellie Roy noted that the family did not work with the county planning staff to look for alternatives to the development proposal. “You haven’t really utilized the county processes,” Harper said. “It appears you’re trying to circumvent the same regulations that other property owners go through.”

The commissioners also took issue with Schroeder’s claim that the lot under consideration was only 35 acres.

If the lot is reviewed as a 500-acre parcel, with 465 acres of the land encumbered with an open space conservation easement, then the Droste’s claim for a taking is not as strong.

There are better places to locate a house in areas protected by the conservation easement, and it’s more difficult to claim that government regulations have stripped a parcel of its value if the landowner has already earned several million dollars from the sale of that easement.

“It appears you have an application for development on a 500-acre parcel, you placed a conservation easement on the developable part and now are trying to build on the undevelopable part,” said Commissioner Mick Ireland.

The commissioners pointed out, and their planning staff agreed, that the proposal would have been reviewed differently if it had come in as a 35-acre proposal.

The Drostes have 30 days to file an appeal in either state or federal court.

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