Judge rules against county in Castle Creek trail dispute
October 8, 2010
ASPEN – A district court judge has ruled against Pitkin County in its contention that it can build a trail along Castle Creek Road without obtaining county permits – a decision the county intends to appeal although it has the legal ability to construct the trail anyway, according to Chris Seldin, assistant county attorney.
Judge James Boyd issued the ruling Monday in a case that dates back to July 2007, when the county was preparing to build a paved pedestrian/bicycle path between the Marolt housing complex and the Aspen Music Festival and School campus on Castle Creek Road, south of town. The campus is also home to Aspen Country Day School.
A group of landowners obtained a temporary injunction to halt the project, and then a standing injunction, which the county unsuccessfully appealed. Castle Creek Road landowner Edward Wachs subsequently filed a new lawsuit in district court that sought to either block the trail construction or force the county to seek permits for the work and conduct public hearings on the project. A trial took place in June 2009, and the parties to the lawsuit – Wachs and the then-Board of County Commissioners – have been awaiting Boyd’s ruling ever since.
According to Boyd, the county must follow the procedures necessary to obtain two right-of-way permits and then actually obtain the permits before proceeding.
The judge based his ruling on requirements within the county’s Asset Management Plan, according to Seldin, but that plan has been amended since the case began.
The new plan, he said, “makes it crystal-clear that Pitkin County doesn’t have to give itself permission to manage and maintain its own roads.”
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The county, if it had the money and inclination, could begin constructing the trail at any time, according to Seldin.
Nonetheless, the county will appeal Boyd’s ruling, in part to obtain a $570,000 bond that was put up by the landowners who obtained the injunction. The bond was to protect the county against losses it would incur if the project did not go forward as scheduled three years ago.
“The project was mobilized and ready to go when this lawsuit was filed,” Seldin said.
The project involved construction of a paved bike path from Marolt, which houses music students during the summer months, along the east side of Castle Creek Road to the campus.
The need to cut trees and other vegetation was a concern for some area landowners.
“From the county’s standpoint, that is a high hazard area,” said Brian Pettet, director of public works for the county.
The trail was intended to separate bicyclists and pedestrians from vehicle traffic on the narrow and, in some areas, winding road. It would also keep bicyclists and pedestrians away from an area on the west side of the road that is prone to falling rocks, he said.
The trail was to be constructed entirely within the 60-foot right of way allotted for the county road, Pettet said.
“There was enough width there to add a pedestrian amenity,” he said.
The county and city of Aspen were to split the $2 million cost of the project. The county Open Space and Trails budget still contains its share of the funding, said Gary Tennenbaum, county lands steward, but the status of the city’s share was less clear. The partnership agreement between the county and city has expired, Seldin said.
Whether the county will pursue the trail’s construction remains to be seen.
“Now the county’s got to decide what to do with it,” Tennenbaum said.
Wachs could not be reached for comment Thursday.
In its appeal to the state appeals court in Denver, the county will argue that the old Asset Management Plan, which required government agencies to acquire permits before doing work in county rights of way, didn’t apply to the county itself, Seldin said. It did apply to such entities as sewer and water districts doing work within a county road right of way, he said.
Such agencies would be required to indemnify the county.
“It makes no sense to indemnify oneself. Why would you do that?” Seldin said.