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Droste land case to weaken law?

Brent Gardner-Smith

A key section of Pitkin County’s land-use code was challenged yesterday as landowner Peter Droste tried to make the case that “1041” regulations did not apply to his land due to prior zoning.

If Droste’s challenge is ultimately successful, it could weaken a provision the county has used to control building on steep slopes, in sensitive wildlife habitat and on sites threatened by flooding, avalanches, fire or landslides.

The label “1041” refers to the state legislation that gave Colorado counties the power to require developers to avoid such hazards. Pitkin County has adopted an aggressive interpretation of the 1041 regulations and has used them to not only require mitigation, but to prevent building from occurring at all in some locations.

In an unusually tense and formal hearing Monday in the old commissioners’ meeting room in the Pitkin County Courthouse, Droste and his attorney, Wayne Schroeder, made their case. They argued that since the Droste property was zoned before Pitkin County adopted the 1041 regulations in 1975, Droste should be allowed to build an expensive and complicated access road and driveway to a new homesite on the ridge between Brush and Owl creeks.

Droste believes there are 20 potential homesites on the ridge, many with sweeping views of the local ski areas that could make each of them worth up to $5 million. Aspen realtor Robert Ritchie, who is actively generating buyer interest in the property for Droste, attended Monday’s hearing.

Former Pitkin County Commissioner Jim True, hired by the county to serve as the hearing officer and review the land-use application for consistency with the 1041 regulations, asked to hear additional legal arguments on the 1041 issue today at 10 a.m.

Aspen land-use attorney David Myler was hired by Droste and Schroeder to give a legal opinion as to whether Droste’s property was exempt from the 1041 regulations.

Myler, who said he didn’t necessarily support Droste’s application, wrote that a sweeping exemption built into the original 1041 legislation means “that development of a single-family residence on 500 acres of the Droste Family Property, together with a private roadway … would be exempt from the regulations contained … in the Pitkin County Land Use Code.”

“I think the Legislature left a pretty big hole in the legislation,” Myler said at the meeting. He pointed to the provision that said if a piece of land was zoned by May 17, 1974, then it was exempt from the 1041 regulations. The Droste parcel was zoned on March 25, 1974.

To date, the “zoned lands exemption” has lain dormant for 27 years and not been challenged by other developers. Myler said it could be because a lot of people thought the 1041 regulations made sense, i.e., don’t build your house in an avalanche path, and that the regulations were often applied as part of a larger, more complex land-use review and so escaped direct challenge.

The two applications that Peter Droste has brought forward, one for a winding road up a steep slope, and another for a homesite and a driveway in sensitive wildlife habitat, have been written so that only the county’s interpretation of the 1041 issues are between him and a green light to begin building and selling.

True, in his role as hearing officer, said he would likely take several days to make a decision on the case. He is well aware that no matter his decision, it is likely to be appealed to the Board of County Commissioners for additional review.


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