Droste land fight finds new forum
The Droste family’s battle with Pitkin County over development of a scenic swath of the Brush Creek Valley moved from the courtroom to the Capitol last week.
County officials and other legislative watchdogs are fighting what they characterize as one landowner’s attempt to challenge Pitkin County’s land-use regulations through special legislation after repeated defeats in court.
Peter Droste has apparently won round one at the Statehouse, though. A Senate committee approved legislation on Thursday that critics claim would gut the ability of counties and municipalities across the state to regulate and control growth. Droste declined to comment on the Senate bill yesterday.
Senate Bill 215 was approved 5-2 in the Senate Committee on Agriculture, Natural Resources and Energy. It will go next to the Senate floor for debate. Its sponsors include Pitkin County’s representatives in the Legislature, Sen. Lewis Entz and Rep. Gregg Rippy.
The bill would exempt an unknown number of properties across Colorado, including the Drostes’ scenic lands outside Snowmass Village, from virtually all regulation, according to Carolynne White, an attorney for the Colorado Municipal League, which is lobbying against the legislation.
The bill appears benign at first glance, according to a letter from county commissioners to Entz, chairman of the committee, but it “is a true canard and its impacts on the ability of local jurisdictions to regulate and control growth within their communities would be devastating.”
The Drostes have filed suit against the county several times in their efforts to develop their property – about 925 acres bordered by Brush Creek Road on the northwest and Owl Creek Road on the southeast. The family has accepted about $8 million for conservation easements over some 600 acres of the ranch, including the undeveloped meadows along much of the lower section of Brush Creek, leaving 325 acres available for development.
According to the county, the Drostes could develop nine to 11 homes on the property.
The county rejected the family’s most recent development proposal, though, citing its impacts on wildlife habitat. The family sued and lost in district court. Last August, the Colorado Court of Appeals sided with the county, rejecting the family’s claim that its lands are exempt from county regulation.
The Colorado Court of Appeals concluded the Droste property is exempt from the so-called “1041 statute,” but that the county has authority to regulate development through the Local Government Land Use Control Enabling Act.
The proposed legislation would create an exemption to county land-use controls that have their basis in the Land Use Control Enabling Act, a state statute enacted on May 17, 1974. The act was a companion law to the 1041 statute, enacted at the same time. Under 1041, counties and cities may regulate certain uses, such as mining and pipelines, and to regulate development in certain areas, such as environmentally sensitive lands or areas where natural hazards exist.
The 1041 statute contains an exemption for lands that were zoned before the two statutes became law in 1974, White explained. The proposed legislation, she said, would expand that exemption to the Land Use Control Enabling Act, retroactive to May 17, 1974.
Properties like Drostes’, White said, “would be virtually exempt from all regulations if this bill passes.”
The zoning in effect on the Droste lands in 1974 allowed a house on every 10 acres, noted County Commissioner Shellie Roy.
“What this is, basically, is a poke in the eye at Pitkin County,” said Roy, who testified before the committee, along with Commissioner Jack Hatfield. “It basically says local governments have no jurisdiction on any land that was zoned in 1974 or before.”
“If somebody comes and says, ‘I want to put a Wal-Mart here,’ if it was an allowed use in 1974, it might well be an allowed use now,” said Commissioner Mick Ireland.
Pushing for the legislation at last week’s committee hearing, according to Roy, were several landowners who have battled with Pitkin County, including Peter Droste, Smuggler Mountain landowner George “Wilk” Wilkinson, upper Fryingpan resident Betty Lamont and Bill Mohrman, whose mining claim above the Hunter Creek Valley was downzoned when the county enacted its Rural and Remote zoning.
Sen. Entz did not return a call for comment Friday, but Rippy said it’s time the Legislature reviewed both 1041 and the Land Use Control Enabling Act. Rippy said his interpretation of the two laws would exempt landowners from land-use controls under the Enabling Act if they are exempt from 1041.
“If there are unintended consequences, we need to talk about those,” he said.
Janet Urquhart’s e-mail address is firstname.lastname@example.org
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“If somebody comes and says, ‘I want to put a Wal-Mart here,’ if it was an allowed use in 1974, it might well be an allowed use now.”
Ð Mick Ireland, Pitkin County commissioner