Couple sues Pitco over housing regulations
August 21, 2002
A local couple is suing Pitkin County for the right to build a large home on a steep slope that’s prone to rock fall.
Billy Ray and Bonnie Eubanks are trying to force the county to abandon a new policy that was created around their development plans that makes it impossible for them to build a new house.
The Eubanks own a lot – with a house – on the edge of Shadow Mountain in an unincorporated section of the county overlooking Castle Creek. Their existing house is located on a slope that’s steeper than the county currently allows houses to be built on and is in a recognized rock slide zone.
About three years ago, they applied to build another house on their land farther up the hill in an area that is also prone to rock slides, but were warned approval would be difficult, if not impossible, given the geologic conditions on the lot.
The Eubanks and their consultants continued through the process in spite of the warnings. The land-use policy in effect at the time exempted them from having to worry about rock slides, avalanches or steep slopes as far as their development application was concerned.
Most properties that people develop in Pitkin County are required to go through what is known as the 1041 hazard review process. The 1041 process has been in effect in one form or another since the mid-1970s, when the state Legislature passed a law that allows local governments to consider geologic hazards, wetlands, wildlife habitat and wildfire risk when people apply to build homes.
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When the county adopted a review process to address those concerns, it exempted all of the existing “Board of County Commissioners approved” subdivisions from going through the 1041 process.
The Eubanks subdivision did not exist in the mid-1970s, but was created as part of a court settlement in the early 1980s. The Eubanks, through attorney Herb Klein, claim that their subdivision is a board-approved subdivision and therefore exempt from the 1041 review standards.
Their suit points out that when they bought the land in 1996, they were told by a member of the community development department they could redevelop it without having to worry about the 1041 review process.
“In fact, the community development department maintains a list of board approved subdivisions for the very purpose of identifying those which are exempt from the 1041 policy,” the complaint points out.
Nevertheless, the county denied the application on 1041 concerns and directed staff to require all lots – whether newly created or in existing board-approved subdivisions – to go through 1041 review from now on.
“We do have an obligation not just to protect the owner, who may be willing to take some risk,” said County Commissioner Mick Ireland. “We’re obligated to protect the people who build and service that house and the rescue personnel who might have to go in there if it’s taken out by an avalanche or rock slide.”
He pointed out that the county would allow the Eubanks to tear down their existing house and build a new one in its place. He said they could even expand the existing residence. What they can’t do is create a new building site on a lot that is already 100 percent encumbered with geologic hazards.
“There are already a lot of houses on 30 percent slopes – we’re not gong to make people unbuild anything that’s already there,” Ireland said.
The Eubanks’ lawsuit claims that the county violated their constitutional rights to due process, because the county attorney showed up at their appeal hearing with a resolution of denial already written.
The suit also claims the county violated the Eubanks’ equal protection guarantees under the 14th Amendment to the U.S. Constitution because it allowed immediate neighbors on similar lots to build their homes without 1041 reviews.
And it notes that the Eubanks relied on the county community development department’s advice in 1996 about redeveloping the lot.
The suit was filed last Thursday in District Court.
[Allyn Harvey’s e-mail address is firstname.lastname@example.org]