Never Say Die
It is unlikely that any piece of land in Pitkin County has such a checkered history as the W/J Ranch: It has split a family irrevocably, brought down local politicians and left a major New York investment bank holding a $13.75 million bag.It’s a history – dating back to 1958 – that supplies plenty of valid reasons for the county commissioners to deny the latest application to develop the 234-acre property. But that doesn’t mean they will. In fact, if this board follows the decision-making patterns of its predecessors, the front for the current ownership, Lowe W/J Inc., will probably get what it is asking for.The W/J Ranch has the last undeveloped meadows on McLain Flats. Existing development on the ranch is centered around the ranch house, at the edge of the meadows near McLain Flats Road, and in two areas of the ranch’s lower bench , which begins where the road starts downhill toward the Roaring Fork River and the Woody Creek neighborhood.Representatives from Lowe W/J came before county commissioners on Feb. 4 with a plan for the always controversial property. The company wants to build 12 free-market homes, with 12 caretaker units, on the large meadows that make up the W/J’s upper bench and 28 affordable-housing units on the lower bench, where about five dozen deed-restricted affordable-housing units are now located.The sense of relief among the county commissioners and audience members at that meeting was palpable as Lowe W/J’s Jim DeFrancia, Stan Clauson and Tom Smith made their presentation. Their style contrasted sharply with the confrontational, sensational tactics of the previous owner, John Musick.In 1998, Musick proposed a small city of 778 affordable-housing units on a 142-acre section of the ranch. When he didn’t get what he wanted, he threatened to file defamation suits against county commissioners, charged county officials with ignoring their own policies and stood in front of the Aspen post office, signing up people for “free” lots in an attempt to get Aspen’s working population behind his development scheme.The Lowe W/J proposal is asking for less than one-tenth the number of units Musick sought. Lowe W/J is offering to donate riverfront property to Pitkin County Open Space and Trails and to place another 67 acres of the ranch under a conservation easement. It would also include a new wastewater-treatment plant. And the affordable-housing units would be sold as category housing, which sets strict limits on purchaser income. “When we look at this project in terms of public benefit – instead of in terms of all the reasons to oppose it – we find that, in fact, the benefit does stand out,” Clauson said.A divided history The modern history of the W/J began in August 1958, when rancher Albert Duroux sold the property to a father and son, Wilton and Wink Jaffee.Jeanne Jaffee, wife of the late Wilton Jaffee says her husband and Duroux talked openly about how the ranch would never end up in the hands of developers. “The ranch has been sterilized [from development three times], now they’re trying to break it up and build. It doesn’t make any sense,” said Jaffee, who lives in a home overlooking the ranch and opposes further development.Father and son – Wilton and Wink – split the ranch in 1962, leaving the younger Wink with the bulk of property and water rights. Since then, most of the news surrounding the W/J has been tied to Wink and the people who have since owned his portion. Jeanne Jaffee still owns the portion that Wilton took.In case the handshake of two men in the 1950s isn’t enough to justify a denial of the Lowe W/J application, the commissioners can always refer to a 1989 county resolution that appears to bar development in exactly the location that Lowe W/J wants to develop with free-market homes.In 1989 the county approved a land-use application that authorized Wink Jaffee to build 27 rental units, as well as granted after-the-fact approval to 33 rental units that had been constructed in the early and mid-1980s without any of the required county approvals or permits. The minutes of the hearings also reflect that Jaffee and the county commissioners discussed rezoning a 36-acre parcel to accommodate the existing and proposed rental housing.A map of the proposed rezoning was never supplied, but the commissioners added the following condition of approval: “At detailed submission, the applicant shall verify that the proposed rezoning configuration shall create a conforming parcel which leaves the RS-20 portion of the parcel [the ranch’s undeveloped upper bench] with no additional development potential.” If the current commissioners feel that the 1989 condition was not worded clearly enough, however, they can always base a denial on the fact that the rezoning was never actually legal. The original 36-acre parcel that was discussed in 1989 mysteriously grew to a 142-acre parcel by mid-1990, when the commissioners granted final approval for Jaffee’s proposal. But the commissioners never had the legal authority to grant that approval, according to attorney Joe Edwards, who has represented the Woody Creek Caucus since 1996 on matters affecting the W/J Ranch. Edwards did an exhaustive search of the records and determined that the Pitkin County Planning and Zoning Commission never saw a map of Wink Jaffee’s proposed zoning changes.”The P&Z never saw the 1990 plat before it was recorded, making it null and void,” Edwards wrote in a prepared statement for the commissioners in 1998, when they were considering Musick’s application. “Under several sections of state law, the county can’t rezone an area unless maps have been presented to the planning and zoning commission,” he said in an interview this week.The commissioners ultimately denied Musick’s 1998 application. Soon after, they rezoned all portions of the W/J Ranch, except the existing affordable-housing enclave, to allow a maximum of five free-market homes and 12 resident-occupied ones. Other reasons to deny But if the commissioners feel all that is too arcane to justify a denial, they can always turn to a 1994 decision by their predecessors to grant Musick and Jaffee a special land-use exemption for subdividing and selling off rental units on fully developed lands without going through an arduous approval process.Edwards noted that the exemption was for a fully developed piece of property, which would imply that no further development is allowed. “Musick applied for and received a subdivision exemption for a fully developed parcel,” Edwards said. “Now they’re back trying to develop it some more.”If the commissioners aren’t comfortable denying the Lowe W/J proposal for any of the above reasons, they can base a denial on the fact that ownership of the ranch has not been clear since the early 1990s, when Wink Jaffee apparently sold the ranch to attorney John Musick. (The records show that Jaffee was still listed as an officer in the company that became owners of the ranch.) A section of the county land-use code requires developers to reveal the true ownership of parcels up for consideration, although it is rarely enforced and would be particularly difficult to flesh out in this case.During the 1998 hearings on his development proposal, Musick said the stockholder of the corporation that owned the ranch was protected by a blind trust set up in the Cayman Islands. In 2000 Lowe W/J’s DeFrancia told The Aspen Times that his firm had taken ownership of the property, although Lehman Bros. Holdings would continue to hold $13.75 million debt on the ranch. (Lehman had loaned at least that amount to Musick in the mid-1990s.) The commissioners could simply deny the application because utility improvements for the rental units promised by Wink Jaffee in 1989, and promised again in 1994 by John Musick, have never been completed. The water and septic systems have been a matter of county concern for years. A strong case could be made that the current owner, Lowe W/J or Lehman Bros., is responsible for instituting the improvements.DeFrancia noted on Feb. 4 that some of the improvements have been made and promised to complete the work with a new sewage-treatment facility if the Lowe W/J application is approved.Water rights have been another troubling issue for development-minded owners of the W/J Ranch. Musick’s first reported contact with the W/J, in fact, came in 1989, when he advised the county as a special water attorney for the application that Jaffee submitted. Musick actually recommended denial of the request because there wasn’t enough water to serve the project. The commissioners ignored Musick’s recommendation – and the state law that requires water rights be secured before a subdivision approval is granted – in approving Jaffee’s project. According to the minutes from that meeting, county officials actually recommended that Jaffee hire Musick to secure the necessary water rights.As with past owners, the current owners have not come to the table with all their water ducks in a row. The current application for 52 new units is also short of water, although a water rights attorney for Lowe W/J said that a case is pending in state water court. “We understand we can’t go forth with the project until the water issues are resolved,” said Tom Smith, Lowe W/J’s lead attorney.Political suicide? The commissioners could also deny the project because of the danger that an approval might present to their careers. The reputations of past county commissioners Wayne Ethridge and Fred Crowley were called into question after they deliberated and voted on the 1989 W/J application. While he was a sitting county commissioner, Ethridge actually filed a development application on behalf of Wink Jaffee in 1989 and another for Musick in 1995. According to county records, Ethridge even refused to fully recuse himself from a vote on the W/J application that he had prepared for Jaffee because his vote might be needed to break a tie.His vote wasn’t needed, so Ethridge abstained. But after the county commissioners approved the Jaffee/Ethridge application to legalize the 33 existing rental units and construct an additional 27, the contract to build the new units was awarded to Commissioner Crowley, who had voted on the application.Finally (at least for this list), the commissioners could simply deny the application on its merits and tell DeFrancia his only choice is to develop the five free-market homes and 12 resident-occupied units allowed under current zoning. Given the history of the property and the damage it’s inflicted on the valley’s collective land-use psyche, such a choice would be understandable.Or the commissioners could decide to approve the latest application.But when the hearing picks up again on March 11, attorney Edwards and many from the neighborhood will be doing everything they can to convince the commissioners otherwise. “The county is being asked to give up restrictions that have been in place for 12 years and were there for anyone to see if they had bothered to look,” Edwards said. “Lehman Bros. didn’t do their due diligence and now they’re paying the price.” Allyn Harvey’s e-mail address is email@example.com
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