The Pitkin County commissioners voted Wednesday to withdraw a proposed ordinance that would have created a new, more lax process for reviewing public infrastructure projects.

The ordinance would have given the commissioners the ability to disregard any provisions of the county’s land-use code when reviewing projects the county itself was bringing forward in the public interest, such as communication towers or trails.

Technically, it would have added to the county code a new chapter that would have spelled out guidelines for reviewing public infrastructure projects, including a process by which the projects would be discussed publicly at least three times. But it also would have given the commissioners the discretion to apply, or not, any of the constraints that exist in the land-use code, such as the prohibition on building on steep slopes or erecting structures taller than 40 feet.

“It would allow projects, like a county road, that might not meet the criteria to move forward,” Assistant County Attorney Chris Seldin told the commissioners.

That didn’t sit well with about 10 citizens who came to a public hearing on the ordinance to express their opposition to the proposed alternative process.

“You have opened it up to any public project,” said David Lenyo, an attorney with the Aspen law firm of Garfield and Hecht. “It could exempt county buildings, it could exempt light rail projects, it could exempt county courthouses, it could exempt county jails. There is no definition of ‘county infrastructure.’”

 Lenyo also said that because the commissioners would have complete discretion to decide which elements of the land-use code to apply to a specific project, or not, a citizen would not be able to appeal a decision made by the commissioners.

“That critical determination about what standards will apply to a project are not appealable,” Lenyo said. “You’ve essentially gutted the public’s right to appeal the project.”

Lenyo is handling a lawsuit filed against Pitkin County by Dick Butera and other residents of Castle Creek Road who oppose a proposed county trail connecting the Aspen Music Festival and School campus to the Marolt seasonal housing complex. Before he spoke, Seldin warned the commissioners to watch what they say lest they give Lenyo something he could use against them in the active lawsuit.

The Castle Creek trail was not reviewed under the county’s land-use code before county staffers moved to install it. And the lawsuit that blocked the trail resulted in a district court judge’s ruling that, in fact, the county had to review the trail under its own land-use code.

That ruling prompted the county commissioners to seek out an alternative process that would allow public projects to proceed without a single citizen’s being able to insist that they be reviewed under the county’s land-use process.

“Applying the code to prevent development of such public infrastructure leads to an absurd result that does not advance the public health, safety, convenience, and welfare,” stated the proposed ordinance.



Some citizens disagreed

Shellie Roy, a former Pitkin County commissioner who is seeking election again this fall, spoke out against the ordinance, saying the public often finds complying with the land-use code just as difficult as the commissioners do.

“The problems that the county is coming up against are the identical problems that the public is coming up against,” Roy said. “What you should be doing is using your own projects as templates to amend your code to serve the public. I think the commissioners need to let go of this and go in and make your code usable for everyone else.”

Aspenite Heidi Houston of the real estate firm Houston and Gorog said the proposal “feels unconstitutional to me. I think you need to take into account that this is a government by the people and for the people, and not for the county by the county.”

Commissioner Michael Owsley, in response to public comment, said “This is not an attempt to forego public input. It is not an attempt to exempt ourselves,” and added that “If you review this closely, it just calls for a long, clear public process in terms of our infrastructure. It is clear that it has the public in mind.”

But Commissioner Jack Hatfield disagreed.

“You can’t tell me that this is not an exemption,” Hatfield said.

At the start of the meeting, Hatfield suggested that the commissioners reconsider the proposed ordinance and write one that would limit the new process to emergency and maintenance situations only, especially as it relates to repairing county roads.

“It would not in any way allow us to do major projects without going to the code and having to live under the same code criteria that others do,” Hatfield said.

But by the end of the meeting, the four commissioners present — Hatfield, Owsley, Rachel Richards and Patti Clapper — agreed that it makes more sense to start with a clean slate and find a new way to achieve their goals.

Owsley said he is “perfectly willing” to drop the ordinance, but the board is going to continue to work on a solution that will allow the county to work on its infrastructure.

“I’m happy with this discussion, I think it has been good,” Owsley said. “It does seem like we need to narrow [the scope of the ordinance] and better define it.”

Richards also said she had heard some constructive comments about narrowing the scope of the ordinance.

“I’m more than willing to pull this back and take more time to look at it,” Richards said. “There are other paths.”

bgs@aspendailynews.com