Starwood ready to fight county on moratorium | AspenTimes.com
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Starwood ready to fight county on moratorium

Allyn Harvey

Residents of one of the most exclusive neighborhoods in Pitkin County are apparently the only people willing to take the county to task – and maybe to court – over the recently adopted development moratorium.

The Starwood Homeowners Association is seeking exemption from the moratorium. Its appeal includes narrow challenges based on the subdivision’s unique situation, and broad swipes that cite Colorado’s open meetings law and the legal concept of common law vesting.

The association is also exploring the possibility of taking its claims to court if the commissioners deny its appeal on March 8. Starwood’s attorney, Paul Taddune, said a law firm in Denver is reviewing the case and is expected to issue an opinion soon on whether it will stand up in court.

Other potential appellants have yet to take legal action over the six-month moratorium that bars homeowners and developers from filing new applications for subdivision of property and construction or remodeling of large homes.

“Who has two years and $200,000 to fight the county?” said builder Steve Hansen.

Hansen and other builders who work on high-end homes led the initial fight against the moratorium. Their protests forced the county’s elected officials and staff members to spend the better part of a month in long meetings answering questions and negotiating exceptions to the development freeze.

From the quiet that has since descended on the county, it appears the development community either got most of what it wanted, or gave up trying to sway the commissioners. Whatever the case, the commissioners did make several changes sought by builders and land-use attorneys before the second reading of the moratorium ordinance.

Adopted on Jan. 10, the moratorium initially limited development applications to homes of 3,500 square feet or less. Since then, the limit has been upped to 5,750 square feet. The county also agreed to allow remodeling on homes of any size, as long as no new floor space is added. A number of developments captured by the original moratorium will now be allowed to proceed.

But Taddune said several Starwood landowners who were on the verge of submitting development applications when the moratorium was adopted are still unable to submit applications.

Taddune’s Jan. 21 letter informing the county of the appeal points out that the subdivision has been around for nearly 40 years; the first plat was recorded in 1962. As a gated community, Starwood maintains its own roads, pays to maintain a fire station in the subdivision and hires private security to keep an eye on things.

“Although Starwood serves as a substantial tax base for Pitkin County, it receives little in the way of county services,” the letter states.

Starwood contains 113 lots between two and five acres in size. About three-quarters of the subdivision has been developed. “Many of the lots that are not built upon are owned by adjacent property owners who have purposely delayed building in reliance on county zoning,” according to Taddune’s letter.

Taddune argues that his clients should be immune from the moratorium because they live in what amounts to a self-contained community. “The zoning in Starwood has been intact since the inception of Starwood,” he said in an interview last week.

In fact, Starwood residents have been held to the same rules as everyone else, especially with major zoning amendments like the 15,000-square-foot house size cap adopted in 1992.

“It is unfair and discriminatory to impose a regulation that precludes Starwood property owners from remodeling their homes when Starwood was subdivided as an area of the county to accommodate homes far in excess of 3,500 square feet,” the letter reads.

Taddune attacks the moratorium ordinance as being loosely written and filled with undefined terms.

“What is truly meant by the term `growth?’ Is it a term we should understand intuitively?” he asks.

To clear things up, Taddune proposes exempting existing subdivisions that have dedicated large amounts of open space, maintain a “substantial community infrastructure,” were planned and designed for large homes, or contain at least 50 lots and are at least 75 percent developed already.

The appeal also claims the moratorium ordinance is vague and ambiguous. And, it charges that Colorado’s open meetings law was violated, because the county failed to provide any public notice that a moratorium would be discussed, much less adopted, on Jan. 10.

“Colorado courts have held that public meetings laws are interpreted broadly to further the legislative intent that citizens be given greater opportunity to become fully informed on issues of public importance,” said Taddune in his letter.

He continues, “My request [on Dec. 14] on behalf of Starwood to be advised of agendas when land-use regulations affecting Starwood would be discussed has been ignored.”

Taddune also attacks the premise the county used to adopt the moratorium. “There is no emergency,” he writes. “All planning studies have anticipated and arguably planned for the build-out that is occurring. The only study that has been referred to as supporting the ordinance is an unscientific and obviously skewed report prepared by inexperienced county planner Gabe Preston.”

Preston holds a master’s degree in geography.

The report in question is a study of construction and post-construction employment patterns linked to residential development. The data Preston used in his study came from area homeowners, local contractors and the state government. His study concludes large homes require more employees to build and service than smaller homes.

But Taddune finishes his appeal by arguing just the opposite. Employee housing, he said, is the real cause of growth by increasing demand for social services, schools and hospitals. He warns that by retarding development of large homes, the county is undermining the tax base it needs to pay for all those services required by workers and their families.


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