Droste gets firm ‘No’ from county
September 12, 2002
Peter Droste’s effort to develop trophy homes on what state and local experts say is one of the most environmentally sensitive ridge lines in the county received a unanimous thumbs down from the Pitkin County commissioners.
The commissioners voted 5-0 yesterday to deny Droste’s application to build as many as 14 homes on a 24-acre parcel that overlooks the Brush and Owl creek valleys.
The commissioners based their denial primarily on two issues: wildlife and water. They agreed there is too much wildlife and not enough water on Droste’s land to allow a dozen 15,000-square-foot homes and two smaller employee units.
An appeal is likely, according to the family’s attorney Wayne Schroeder.
The Droste property is about 900 acres in all. It is bordered by Brush Creek Road on its northwest side and Owl Creek Ranch on the southwest. The family has accepted nearly $8 million for conservation easements over more than 500 acres of the ranch, including the undeveloped meadows along much of the lower section of Brush Creek.
State and county wildlife officials have said that all of the family’s property that is not encumbered by the easements is critical wildlife habitat, which makes it impossible to develop under Pitkin County’s land-use code.
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The Drostes want to combine the development potential from a 99-acre section that is encumbered with a conservation easement with the development potential on the 24-acre parcel, which is not covered with a conservation easement, in order to build the subdivision.
The property’s current zoning in the county land-use code allows one unit for every 10 acres. They offered to use transferable development rights needed for the 15,000-square-foot houses.
A 1.9-mile road engineered with several tunnels and bridges through hills and over gullies would need to be built to access the ridge from Brush Creek Road. County engineer Bud Eylar questioned the family’s ability to build such a road without encroaching into steep hillsides.
“It pains me to make this motion,” County Commissioner Shellie Roy said as she made the motion to deny the application. “I had complete sympathy for the Droste family because they owned a parcel nobody wanted anything built on.”
Roy said she was frustrated by the fact that the county planning staff and others in the community had crafted a development plan that would not destroy critical elk migration and wintering grounds. She pointed out that the proposal included as many as 20 building sites on the lower reaches of the ranch.
The family rejected the plan, according to testimony given at the hearing, opting instead to accept a $7.5 million payout from the town of Snowmass Village for a conservation easement on 500 acres along the lower portion of the ranch.
“That process disintegrated when Mr. Droste’s real estate broker told him he could sell houses on the ridge for $3 million apiece,” said attorney Joe Edwards.
Edwards was representing the Owl Creek home owners association and the Owl Creek Caucus, which both oppose the plan. Edwards accused the family of manipulating the process in order to generate a lawsuit that, if successful, will exempt them from regulations that have been in effect for two and a half decades.
He pointed out that the Droste’s have divided their property into 35-acre lots that will ultimately force the county to accept development in areas deemed critical elk winter habitat. The access road proposed in their application extends into undeveloped areas that are currently used by the Burnt Mountain elk herd for winter grazing.
He also said the family’s plan for water and sewer utilities was suspect: Much of the water on the ranch is committed, under the conservation easements, to irrigating the fields along Brush Creek; and the soil underneath the proposed subdivision isn’t likely to support the leach fields needed to support a dozen large houses.
In making her motion, Commissioner Roy noted that the state engineer had questioned the availability of water.
“To deny construction of these home sites in order to protect wildlife and avoid development on ridge lines is not a taking, but reasonable regulation,” Edwards said.
Throughout the hearing, the commissioners returned to the point that the Drostes had accepted millions in exchange for conservation easements over the most developable sections of their land, apparently positioning themselves for a “takings” appeal and a likely hearing in district court.
Takings is a legal concept that applies to situations where the government, either through direct appropriation or through legislative action, takes property or diminishes its value to zero.
“Isn’t that [conservation easement] a self-imposed restriction?” Commissioner Mick Ireland asked more than once.
“That’s a question you can answer for yourself. I don’t agree with where you’re going with it,” replied Droste development consultant Francis Krizmanich.
“Where am I going?” Ireland asked.
“I don’t know,” Krizmanich said, spurring the room to laughter. “I’m not getting into that game, we’re proposing to develop somewhere else.”
Unless they can convince a judge to accept their case, it appears the Droste’s won’t be developing anywhere else anytime soon.
But their attorney, Schroeder, pointed out that when the county and the town of Snowmass Village bought the conservation easements, they also agreed to allow the family to relocate development from the encumbered areas.
“In buying a $7.5 million conservation easement, they also bought into leaving developable property along the ridge,” Schroeder said.
[Allyn Harvey’s e-mail address is firstname.lastname@example.org]