Lawsuits filed in Celestial project |

Lawsuits filed in Celestial project

Andre Salvail
The Aspen Times

Both sides in the debate over Celestial Land Co.’s proposed residential development project in the Maroon Creek Valley have filed official complaints over a July 21 decision by Pitkin County commissioners that allows construction of an 8,250-square-foot home.

On Monday, both Celestial and a group of property owners identified in court documents as “the neighbors” filed suit in Pitkin County District Court against the Board of County Commissioners. The neighbors’ suit additionally names Celestial as a defendant.

For five years, the two sides have been embroiled in a legal dispute over the project. The Celestial planning team was seeking approval to build a 13,250-square-foot home and caretaker unit on its 35-acre property on the edge of an avalanche-hazard zone. It also requested to put in debris-flow and avalanche-mitigation structures and to develop a debris-flow basin.

The neighbors have argued that the site chosen for the new home is near the apex of an avalanche alluvial fan and would sit in an extremely dangerous spot. They offered an alternative site plan for a smaller home that would sit several hundred feet away from the apex of the avalanche zone.

Commissioners in a special meeting last month agreed on a resolution to allow the project to proceed on the spot that Celestial preferred but gave the company 5,000 fewer square feet than it requested. At the time, the resolution was seen by a planner representing the neighbors as a “split decision.”

The project location, on Bulkley Drive off of Maroon Creek Road, is zoned to allow homes as large as 5,750 square feet. Celestial already has secured one transferable development right that allows a building as large as 8,250 square feet on the property and was hoping to gain two more that would have increased the building size allowed to 13,250 square feet.

Celestial argued that the two transferable development rights would be used to build nearly 5,000 square feet of garage and living space underground and would only help to decrease the visibility of the planned home. The size, location and visibility of the residence are points of contention with the neighbors.

In short, the neighbors’ complaint seeks the following from the court:

• A ruling that commissioners exceeded their jurisdiction, abused their discretion and/or acted “arbitrarily and capriciously” by relying, referencing, incorporating or including what is known as the “Smith Determination” in their resolution. The Smith Determination was a May 2013 ruling by a county hearing officer, Thomas F. Smith, approving Celestial’s amended application from October 2012 that includes the debris-flow and avalanche-mitigation structures as well as the debris-flow basin. The application also sought approval to use two additional transferable development rights to bring the residence up to a size of 13,250 square feet. The neighbors allege that Smith had a conflict of interest in the matter.

• A ruling that commissioners failed to adhere to mitigation standards within the Pitkin County development code in approving Celestial’s proposed residential building site location, “as that location is not the least hazardous portion of the Celestial property.”

• An order striking the Smith Determination from the record and sending the entire matter back to commissioners for a de novo, or “fresh look,” review of the issue through a public hearing and a new finding without any regard to, reliance on or consideration of the determination.

• An order stating that commissioners failed to comply with the development code’s geologic-hazard and -mitigation standards in its approval of Celestial’s proposed residential building site location and to send that issue back to commissioners for a public hearing and a determination consistent with such standards.

Celestial, however, in its claim for relief, asks the court for:

• A ruling that commissioners abused their discretion and acted “arbitrarily and capriciously, outside of its authority and in contravention of applicable law” by denying Celestial’s request to use two additional transferable development rights to construct a 13,250-square-foot residence.

• A ruling that says commissioners provided no evidence for their finding that “the use of two additional (transferable development rights) to increase the size of the residence is not compatible with the existing rural character of the Maroon Creek Valley.” The complaint states that based on criteria such as house footprint, site disturbance and visual impacts, “the evidence in the administrative record before Defendant overwhelmingly demonstrated that Celestial’s proposed development was compatible with the existing rural character of the area.” In finding otherwise, commissioners “overlooked or ignored this evidence and instead made a decision with no basis in the administrative record.”

• A ruling that the resolution draws “an arbitrary and unsupported distinction” in concluding that a 13,250-square-foot residence “is not compatible with the existing rural character of the Maroon Creek Valley” while concurrently determining that an 8,250-square-foot residence is compatible with the valley’s rural character.

• A ruling that the resolution fails to consider how the mitigation measures outlined in Celestial’s October 2012 application do not adequately address the “steep slopes, alluvial fan, avalanche areas (and) intermittent stream” found in the approved development location.

John Fognani, a Denver attorney representing Celestial, said that the company is OK with the board’s approval for the 8,250-square-foot residence. He said the lawsuit is more or less a “placeholder” to be used in case of future legal wrangling between the neighbors and Celestial or the board.

He said Monday was the deadline for both sides to file a complaint with the court over the resolution.

“We did communicate with the other side, and we knew they were going to file, and we thought, if that was the case, then we would go ahead and get a complaint filed and make an evaluation after the fact,” Fognani said.

Neither County Attorney John Ely nor board Chairman George Newman could be reached for comment Tuesday.