Garfield County commissioners: Decision to deny removal of Aspen Glen eagle protection zone not a ‘takings’
Garfield County’s decision in fall 2021 to deny the owner of the Aspen Glen Golf Course a request to remove the bald eagle protective zone from riverfront land within the upscale subdivision did not constitute a “takings,” county commissioners determined Monday.
Commissioners on Oct. 11, after a public hearing that spanned three meetings, rejected the request by the Aspen Glen Golf Co. to remove the buffer zone overlay along a section of the Roaring Fork River.
The protections were put in place when Aspen Glen was approved in 1992 due to the presence of an active bald eagle nest near what’s now the bridge over the Roaring Fork River on an internal roadway called Bald Eagle Way.
Although eagles hadn’t hatched young at that specific site since 2016, and the tree holding the historic nest blew over in 2018, commissioners, by a 2-0 vote, determined eagles are still active in the area and that a broader wildlife impact analysis would be needed before deciding whether to remove the buffer zone.
Following that decision, the Aspen Glen Golf Co. sent a letter dated Oct. 25, 2021, through its Glenwood Springs attorney, Chad Lee of the Balcomb and Green law offices, claiming the denial constituted a property rights “takings,” and asking for a hearing before the commissioners to get a ruling on that claim.
That hearing took place Monday.
Rather than some strong-arm attempt to try to overturn the board’s decision, Lee said Monday that the owner was simply following the process before potentially taking legal action against the county.
That said, Lee outlined the legal reasons they believe the decision denied the owners of the parcels within the buffer zone the economic benefit of property ownership.
“We’re here to stick up not only for the private property rights of our clients but other property owners in the county,” Lee said. “This decision set a dangerous precedent … and denied the property owner of reasonable use and economic return on their property.”
Lee also argued that Aspen Glen Golf Co. followed the nearly two-year-long process to have removal of the buffer zone fairly considered, and at no time until the commissioners decision was made was a wildlife impact study mentioned.
Because the particular parcels in question were not approved for development with the 1992 plan or in subsequent years, though, it’s not a vested right, the County Attorney’s Office and an attorney for Aspen Glen homeowners who want to keep the buffer zone in place, said.
Assistant County Attorney Graham Jackson advised that the owner of the property agreed to the approved Planned Unit Development with the property restriction in place. Its removal is discretionary, not guaranteed, he said.
Therefore, the commissioners decision was not an exaction of property rights, he said.
Several Aspen Glen homeowners who lobbied the commissioners at the public hearings last fall not to remove the buffer zone also weighed in against the takings claim.
Because Aspen Glen Golf Co., which also owns the golf course itself, has not pursued the broader wildlife impact study suggested by the county commissioners, it would be premature to give full consideration to the buffer zone removal, resident Mark Gould Jr. said.
County commissioners — minus Commissioner Tom Jankovsky, who declared a conflict of interest due to his wife’s property management business at Aspen Glen — stuck behind their previous decision and said they don’t see it as a takings.
Commissioner Mike Samson reiterated that, as a property rights advocate, he struggled with the decision last fall and again Monday.
“The thing that always guides me is, what is best for Garfield County,” he said.
“I don’t think there has been a takings here,” Samson said, noting that he didn’t believe the applicant had proven removal of the buffer zone was in the best interests of the residents or the county as a whole, and did not adequately prove their case for its removal.
Added Commissioner John Martin, “Yes, (the buffer zone) can be removed, but the criteria has to be met. The eagles are still there, and they use that site. I think it still serves a very important (purpose) and is very lucrative sales pitch for Aspen Glen and the golf course.
“It’s not a takings; in fact, it’s an enhancement of the PUD,” Martin said.
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