County, Wilk agree on Smuggler
April 22, 2003
Pitkin County has reached a deal with George Wilkinson and other Smuggler Mountain landowners to ensure the public’s continued ability to use the popular route that winds up the mountain from town.
A settlement of the long-standing road dispute is scheduled for initial approval by county commissioners this week, with a public hearing and final approval anticipated May 14.
“It has been more than a long time coming,” said two-term Commissioner Shellie Roy. “It’s something we’ve been working on for as long as I can remember.”
The county had filed a lawsuit against “Wilk” and other parties in hopes of resolving the public’s right to Smuggler Mountain Road once and for all. That suit had been scheduled for a two-week trial in federal district court in Denver this month, but was delayed due to a scheduling conflict.
It is now likely the pending settlement agreement will instead go to Judge Marcia Krieger for approval, according to Chris Seldin, assistant county attorney.
Smuggler Mountain Road winds about seven miles up the mountain that rises up on Aspen’s northeast flank. The dirt road, which begins at Park Circle and ends at Warren Lakes atop Smuggler Mountain, is a popular route for hikers, mountain bikers and cross-country skiers.
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“Smuggler Mountain Road is a hugely popular and beneficial recreation resource for the community,” Seldin said. “The idea of that road being closed to the public is something most people in Aspen have never imagined.”
The public nature of the road, however, is something Wilkinson has challenged in past dealings with Pitkin County.
“In the past, he has indicated a desire to close it,” Seldin noted. “The county wanted to settle it once and for all.”
The settlement addresses roughly two to three miles of the road as it traverses various private parcels, including land belonging to Wilkinson and several of his offshoots. Also parties to the settlement are landowner Mickie Flanigan, the Music Associates of Aspen, the Aspen Valley Land Trust, the U.S. Forest Service and Starr Reserve at Smuggler Mountain LLC, which has options on Wilkinson’s landholdings, Seldin said.
Not all of the parties contested the public nature of the road, he noted.
The 20-acre MAA parcel, the uppermost private parcel along the road, is slated for purchase as open space by the county and city of Aspen for $650,000. Both governments are to put up $325,000; the price may be offset by the sale of a transferable development right off the parcel, which is comprised of two mining claims.
The settlement declares Smuggler Mountain Road a public road, but does not specify whether Pitkin County owns the road outright or has an easement interest. That distinction has been a major sticking point in negotiations with Wilkinson, according to Roy.
It will matter little, though, to the many locals who make use of the road, Seldin said.
“As far as public access goes, we got everything we wanted in this agreement,” he said. “Right now we are just delighted to have this one taken care of.”
If the county owns the road, it would potentially affect development on the mountain. An easement bisecting a parcel wouldn’t create two separate, developable pieces, as would be the case if a county-owned road cuts through a parcel, Seldin explained.
The county and city are hoping to purchase Wilkinson’s Smuggler lands as open space through a separate negotiation process, ending the threat of potential development on his property.
“It’s just one more step to getting Smuggler tied down,” Roy said of the road deal. “I think we’re making progress that way.”
The settlement doesn’t address ownership of the Hunter Creek cutoff, a road that splits off from Smuggler Mountain Road at the overlook platform that is often the destination for hikers and bikers.
The cutoff road winds into the Hunter Creek Valley and Wilkinson has periodically tried to close it to the public. In December 2001, he ordered Cindy Houben, the county’s director of community development, and an Aspen Times reporter off the road. He strung a cable across the cutoff route with an attached “No Trespassing” sign; the county subsequently cut the cable and reopened the road.
“There have been discussions about adding the Hunter Creek cutoff in a separate settlement agreement,” Seldin said. “Both parties have expressed an interest in resolving that one as well.”
Wilkinson is reportedly out of the state and could not be reached for comment, but Ray Wall, his attorney in the road case, said he suspects his client is ready to resolve some old, outstanding issues involving Smuggler and move on.
Although Wilkinson received a ruling on the road in his favor at one point in 9th Judicial District Court, it was a narrow decision, Wall said.
“I think we have believed all along that it was a public road,” he said.
An 1893 document dedicated the road to the county, but doesn’t make it clear whether the county holds an easement on the road or owns it outright, Wall said.
The county had planned to introduce that document as evidence in the lawsuit, along with the testimony of local residents who have made use of the road for 20 years or more, Seldin said. Some could testify to using it as far back as the 1920s, but 20 years of continual public use is the threshold to claim the road is public through “adverse possession,” he noted.
When the county looked for people to testify, it found 60 individuals willing to take part, Seldin said.
“The fact that we did get 60 witnesses to testify is a testament to the passion people feel about having the road open to the public,” he said.