Land-use system facing tough call
In an unusual twist to what is normally a simple process, a sole Pitkin County planner has the power on Dec. 19 to approve the Droste family’s controversial land-use applications for a two-mile driveway and a building site for a 15,000-square-foot house.Under a streamlined process instituted in January 1999, planners serving as county “hearing officers” can approve 1041 land-use applications, which seek to determine if a house or access road is located on terrain that presents a wildlife, avalanche, wildfire, geologic or floodplain hazard.For the most part, determining if a building envelope avoids 1041 hazards is a black-and-white issue. And so, instead of going first to the Planning and Zoning Commission and then to the Board of County Commissioners for approval, 1041 applications can now be approved by a sole member of the county planning staff.”The code amendment was really designed to help people get on with life,” said Cindy Houben, the county’s planning director. “We’ve taken 30 percent of the case load off the plate of the P&Z, and the majority of the cases go through very smoothly.”Since January 1999, there have been 49 hearings dealing with straightforward 1041 applications. Of those, nine have been denied because the building site was too steep, there were wildfire concerns, or, in one case, because of rockfall danger. Of the nine denials, seven have been appealed as a “taking.” Those appeals are then heard by the county commissioners.On the seven appeals, the commissioners agreed with four of the applicants that there was a taking and worked out an approval. Of the three cases where the commissioners backed up the hearing officers’ denials, one filed suit and eventually won an approval, one went back through the process and got approval, and one has yet to taken action after being denied.A potential downside of the streamlined 1041 process, however, is that if an application is denied and then appealed, the issue comes before the commissioners as a takings issue, and not a land-use issue. Takings hearings are often more litigious, and the commissioners are then looking at a land-use application through a narrow lens.”The first time the BOCC sees it is as a taking,” said Lance Clarke, deputy county planning director, “and they don’t have a lot of background on the issue because they haven’t reviewed it. In the old days, they were the ones who denied the 1041, and they were familiar with the issue before it got to the takings stage.”It also ups the ante, and the role of attorneys.”This gets you to the board immediately in an adversarial process,” said Francis Krizmanich, a former county planner who is now a land-use consultant representing the Droste family. “I’d rather see it go through the public review process.”All of this is of more interest than normal because on Dec. 19, Clarke will convene a public hearing on two applications from the Drostes, one asking for permission to build a complex access road, the other asking for a building envelope.Technically, they are the kind of applications that the streamlined 1041 process was designed for.The Droste family wants to create a 35-acre lot and a driveway, which is a common request in the county.What’s different, however, is that both the driveway and the lot are in critical wildlife habitat. In addition, the Droste family has said that if the applications are denied, they will not only consider it a taking, they will consider it a breach of contract of two previous conservation easements on the balance of their property. The family feels that language in the conservation easements, which set aside 600 acres of wildlife habitat, gives them the right to build the proposed two-mile-long access road.And while not technically part of the applications that will be considered on Dec. 19, there are up to 20 additional homesites that could be created on the Droste property, all of which would be accessed by the new road.”The number of 1041 applications that are this momentous and this complex has been very few,” Clarke said.
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