County rejects Musick’s `takings’ claim for W/J | AspenTimes.com
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County rejects Musick’s `takings’ claim for W/J

Allyn Harvey

Pitkin County commissioners denied yesterday that their decision last March to downzone 112 acres near Woody Creek stripped the property of all value.

In fact, the commissioners declared, developer John Musick and the two corporations that own the land have ample opportunity to realize a profit.

The latest twist in the ongoing saga between Musick and the county commissioners took its next logical step at yesterday’s “takings” hearing.

Musick, who has been at odds with the county for a year about how to develop the W/J Ranch, attempted Tuesday to convince commissioners that downzoning the land from an affordable housing designation to a RS-20 designation stripped it of most, if not all, value.

Under the affordable housing zoning, Musick could have built hundreds, and perhaps more than 1,000, deed-restricted units. With the RS-20 designation, he said he is limited to, at most, five free-market homes.

But the commissioners did not buy Musick’s argument, instead finding that at least 20 units of affordable and free-market housing can still be built on the land. They also agreed that the longtime Aspenite had been less than forthcoming about what the property cost and the amount that has been invested in roads, water lines and other infrastructure.

“The applicant has not shown us anything at all about what he’s invested in the property,” said Commissioner Mick Ireland. “All we’ve heard is it cost $38.5 million in cash and cash equivalents. We don’t know what that means.”

Commissioners voted 5-0 to approve a motion that concludes their actions did not constitute a takings and Musick should not be compensated for lost value. Musick vowed to appeal the decision in the state courts. A long, strange hearing As with nearly every other public matter involving the maverick Musick and the W/J Ranch, the hearing had its share of idiosyncrasies.

The county’s attorney asserted at one point that Musick could theoretically put a university on the parcel under its new zoning.

Musick’s attorney contended that the county land-use code is written so poorly that the commissioners had no choice but to find that they acted illegally.

The board, meanwhile, declined to allow one of Musick’s witnesses, Dr. James Anthony, to take the stand. The decision so upset one member of the audience that she stood up and chanted a prayer in her native Hawaiian.

Despite the more outlandish moments that punctuated the proceedings, most of the four hours were spent reviewing the concept of takings and an application to build 778 affordable units on the property, which commissioners rejected last fall. The meeting was a continuation of a hearing that began in April. The `takings’ claim Takings is a legal concept that has become more and more important in recent years. A “takings” occurs when government action strips a parcel of all or most of its value. If the affected property is left with viable uses, according to both attorneys at yesterday’s hearing, a takings has not occurred.

In April, Musick’s attorney, John Nelson, argued that the downzoned section of W/J is some of the least desirable free-market property in the Woody Creek area. Local architect Ted Guy and other witnesses testified the land has enormous development potential with affordable housing, but wondered if it has any on the free market.

“This property comes with significant debt, no access to the river, a nearby affordable housing development and power lines overhead,” said Guy. “I question whether a free-market lot there would sell for even one million [dollars].”

At yesterday’s hearing, assistant county attorney Marcella Larsen defended the downzoning and countered Musick’s contentions. She quizzed a county planner, a county appraiser and a county engineer on the property’s development potential, its resale value and the costs for building a bridge and a parking garage to go with Musick’s proposed affordable housing.

Lance Clarke, deputy director of Community Development, noted that the new zoning allows Musick to build as many as five, 15,000-square-foot homes for sale on the free market. “It seems to me that any zone district in the county that allows that would be economically viable,” he said.

Larry Fite, the county’s chief appraiser, said that undeveloped properties located in the same area as W/J sold for anywhere from $640,000 for two-thirds of an acre to $2.9 million for 21 acres.

Larsen contended that if Musick managed to carve the property into five 20-acre parcels and sell them, he would earn somewhere between $3.2 million and $14.5 million.

She also attacked Musick’s assumption that he could make about $85 million dollars if he were allowed to build 778 units.

Larsen also pointed out that Musick’s profit analysis was based on the assumption he could build more than 200 resident occupied, affordable housing units – the most lucrative of all affordable housing types. Resident occupied units are not allowed in the affordable housing zoning designation.

On rebuttal, Nelson noted that resident occupied housing already exists on the property and added that the commissioners had not raised issue with the idea last fall when they denied the application.

When Nelson tried to call Dr. Anthony, a sociologist, to testify on whether the county acted in its own interest in downzoning the land (another area of takings law), board chair Leslie Lamont brought the meeting to a close. She and the rest of the commissioners agreed that Dr. Anthony’s testimony was not relevant to the county code on takings, which is limited to financial effects.


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