Invalid zoning lowered Smuggler land price, says claim to Pitkin County
The Aspen Times
Aspen, CO Colorado
ASPEN – The invalid zoning of land owned by the late George “Wilk” Wilkinson on Smuggler Mountain allowed Aspen and Pitkin County to negotiate a price to buy the acreage as open space that was at least $10 million too low, according to a notice of claim recently submitted to the county.
Wilkinson’s estate filed the notice Jan. 15. County Attorney John Ely briefed county commissioners on the claim in executive session Tuesday.
The notice is a required step under Colorado’s Government Immunity Act if a party intends to file a lawsuit against a governmental entity, but it doesn’t necessarily mean legal action will follow.
“A lawsuit is a possibility, but not a certainty,” said Denver attorney Donald Ostrander, representing the estate.
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According to the claim, the county engaged in various activities to prevent Wilkinson from developing his land on Smuggler, including downzoning the property to limit its development potential. In 2004, stricken with a brain tumor, Wilkinson realized his prolonged fight with the county would have to be resolved and elected to sell the land as open space, the claim says.
“That purchase price was based upon the assumption that the county downzoning to a rural residential zone had been [a] valid and appropriate downzoning and that a challenge would be a lengthy and costly legal proceeding,” the claim reads.
Based on the downzoning, Wilkinson reached an agreement to sell the property – about 170 acres – to the city of Aspen and Pitkin County for $15 million. The transaction took place in late 2005; Wilkinson died in September 2006.
In September 2009, real estate broker Deborah Goldstein found an interoffice memo indicating the county had improperly downzoned the land, according to the claim. Goldstein had represented Wilkinson in the transaction; she mailed the memo to attorney Ray Wall, a counsel for Wilkinson.
The 2007 memo, written by county long-range planner Ellen Sassano and sent to county commissioners, indicates the land in question was rezoned in 2005, but “due to an error in public noticing at the time,” commissioners had directed county staffers to repeat the rezoning process. Commissioners approved the rezoning for a second time in 2007.
The difference in the negotiated price between the downzoned land and the property under its prior zoning has not been calculated, according to the notice of claim, but “it is not less than” $10 million.
The rezoning approved in 2005 did not change with the action in 2007, Ely said.
“There was a glitch in it, so the exercise was repeated just to make sure it was solid,” he said.
Smuggler Mountain flanks Aspen on its northeast side. Smuggler Mountain Road, which winds up the mountain and accesses Wilkinson’s former landholdings, is popular with mountain bikers, hikers and locals walking their dogs.
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