County backs off on radical land-use move
As recently as Tuesday, it looked as if Pitkin County was ready to quietly void all development approvals issued before 1988 and force everyone who had acquired approvals since then to begin construction within five years or lose their right to build.But the proposal to rewrite the section of the land-use code on vested rights in just two weeks stumbled Tuesday when it came before the Planning and Zoning Commission. The P&Z was bothered by the hasty review process for a proposal that could dramatically affect the value of people’s property, so they refused to make a recommendation in hopes of slowing things down.The ploy was successful. The county agreed to give the P&Z more time to discuss the revisions with the public and make a recommendation to county commissioners. And instead of adopting the new rules as planned next Wednesday – just two weeks after it was first discussed at the Dec. 1 meeting of county commissioners – the county agreed to delay the final public hearing and adoption until at least Jan. 12.”I’m for this, but what I can’t be for is someone losing a $3 million development right in a 14-day period just because they happened to be out of town,” said P&Z member Charlie Tarver.The delay may also mean big changes for the final product. Just three days after the P&Z meeting, the county attorney’s office is backing away from some of the more radical revisions in the proposal, and recasting it as a way of giving landowners more time to build a project once it is approved.A vesting period is the amount of time a land-use approval is valid. During that time, the developer is exempt from some, though not all, changes to the land-use code and ensured the approval remains in effect. Development approvals are currently vested for three years in Pitkin County.But the language presented to the P&Z on Dec. 7 by assistant county attorney Marcella Larsen Chilson was far from a simple change meant to give people longer vesting periods.That proposal would extinguish all development approvals issued prior to 1988 – effective immediately. Anyone with development approvals issued since then would have a five-year vesting period, starting now, in which to build, or also face the loss of their approvals.When asked how many pre-1988 subdivisions would be affected, Chilson couldn’t say, though she confirmed they would simply disappear. But, she added, there is discussion among the county commissioners about giving landowners with historic approvals a five-year period to use it or lose it.County planner Lance Clarke noted that all pre-1978 development approvals were exempted from the county’s growth management requirements, and remain in place.The changes aren’t quite so harsh for those who have yet to apply for development, as long as they are ready to build. People would be given more time to complete a project – five years instead of the three – once they receive approval to build, Chilson said. But, as written, the new rules would allow extensions only in extraordinary circumstances.Land-use attorney Gideon Kaufman pointed out the new language weakens the vesting rights, because it allows the county to enforce any and all changes to the land-use code to a vested approval. For example, if a landowner received approval to build a home on a hillside with a 15 percent grade, but the county subsequently decided houses shouldn’t be built on anything more than a 5 percent grade, the approval would be void.”The vesting period in this proposal means nothing, because you’re subject to changes in the land-use code. I’d rather have three years vesting and be fully protected like now, because at least I’d know what I was really getting,” said Kaufman.The proposal drew a mixed response from the P&Z. Member Sheri Salzone said she liked the idea of extinguishing development approvals from the distant past, though she was reluctant to do it without much chance for public comment.Planning Commissioner Steve Whipple wasn’t so receptive. He owns a lot in a Brush Creek subdivision with approval for residential development and a 10-year vesting period. If the new language is adopted, he said he would be forced to develop the land right away – instead of later, or perhaps never – because the vesting would be cut to five years with little chance for an extension.”This isn’t some small-time change. This affects millions of dollars and people are going to play their hands. This legislation is very, very pro-county and not very user friendly,” Whipple said.Kaufman added that the virtual ban on extensions would throw estate planning into disarray and could force landowners to build now instead of a generation from now.”The people that will face the biggest problem with this change are the little guys, not the big tycoons, and they’re going to be wiped out,” predicted Glenn Horn, a planning consultant who used to work in the county’s planning office.County Attorney John Ely said yesterday the county commissioners had already addressed many of those concerns. He said historic approvals would likely have a five-year sunset period, and extensions would be allowed as a matter of course.”I’m not sure anybody wants to encourage development by saying if you don’t build now you’re going to lose your development rights,” Ely said.
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