Droste and county argue over conservation plans
Aspen Times Staff Writer
The long-running feud between Pitkin County and Peter Droste continued yesterday in district court.
Attorneys representing the two sides argued over whether conservation agreements between the county and Droste give him the right to build a driveway across the mostly undeveloped Brush Creek Valley to reach another portion of his property.
The arguments before District Judge T. Peter Craven will next shift to the legality of the county’s moratorium on new development applications in the Owl and Brush Creek valleys.
In arguments Monday, Droste’s attorney, Wayne Schroeder, pointed out that neither of the two conservation easements purchased by the county abrogated his right to access the remaining, unencumbered property in the sage hills between Brush and Owl creeks.
“Do they really believe that I would sign away my land? That I would sign a contract that I think couldn’t be enforced?” Droste said at the end of the hearing.
The county’s special counsel, Josh A. Marks, argued that neither conservation easement gave Droste a right or any kind of approval to build the road. Rather, they reserved his right to apply to build the road, which must comply with the county land-use code.
In 2002, the county commissioners denied Droste’s development proposal based on the fact that the access road would have crossed steeper hillsides than allowed under county rules. The application was also problematic because it would place homes in what local and state wildlife experts say is critical winter habitat for the Burnt Mountain elk herd.
The fact that Droste and the county find themselves before Judge Craven indicates that negotiations between them on a potential settlement are bogged down.
Last month, The Aspen Times reported the county was seriously considering a deal with Droste that would have settled the feud and in all likelihood protected the elk habitat.
Droste said the deal, in which he would purchase the neighboring Seven Star Ranch and have the right to build 35 units, was still a possibility. But he noted that the county had yet to respond to his request to include the right to purchase transferable development rights so he can build homes larger than the 5,750-square-foot limit in the land-use code. The county’s transferable development rights program permits developers to build larger homes than normally permitted by purchasing building rights from owners of backcountry lots.
Droste’s lawyer argued yesterday that there are a number of contracts and documents that show the county and the town of Snowmass Village both understood that Droste would be coming back with an application to develop the portions of his 926-acre ranch that are not encumbered by conservation easements.
The family has been paid just short of $8 million for conservation easements protecting 599 acres of their property. Five hundred acres of the protected land is in the Brush Creek Valley, which Snowmass Village voters agreed to pay over $7 million for in 1999.
Schroeder notes that the access road conceived in 1994 by Droste and the owners of the neighboring Seven Star Ranch was referred to in a 1996 contract between his client and the county to preserve a 99-acre conservation easement:
“The following uses are consistent with this Conservation Easement … (A) construction, installation, use, maintenance, repair, improvement, reconstruction and replacement of an access driveway,” the agreement says.
Schroeder also cited a 1995 agreement between the county and the partnership that owned the Seven Star Ranch. The county paid $1.6 million for a portion of Seven Star deemed critical to local elk herds, and the partnership agreed not to pursue construction of the access road, which is needed to reach the Owl Creek section of Droste’s ranch.
In that agreement, the county apparently agreed that the access road could only be built if the Seven Star owners couldn’t find an alternative route to the areas they wanted to develop. The Seven Star owners have never pursued construction of the access road.
And Schroeder pointed out the 1999 agreement between his client, Snowmass Village and Pitkin County also contemplates future development of the property, and in no way bars the construction of an access road.
But Marks, the county’s attorney, said no agreement between the county and the Drostes ever guaranteed the right to build that road. And he said clauses in those contracts specifically said the road was subject to approval under the county’s land-use approval process.
“The terms of the conservation easement don’t prohibit the driveway, but they don’t exempt the Drostes from having to gain approvals from the county commissioners,” Marks said.
[Allyn Harvey’s e-mail address is firstname.lastname@example.org]
With many lingering questions still surrounding the fate of Aspen’s historic Old Powerhouse, City Council decided during Monday’s work session to hold off on providing staff direction on moving the preservation project forward until more information can be presented.