Maroon Creek Valley homesite spat is back in Pitkin County District Court
by Curtis Wackerle
, Aspen Daily News Staff Writer
Friday, March 28, 2014
A Maroon Creek Valley landowner has returned to the courts in its effort to build a massive house in opposition to the neighbors and prior Pitkin County rulings.
Celestial Land Co., controlled by David Boehm, filed a lawsuit in Pitkin County District Court on Wednesday challenging Pitkin County commissioners’ decision last month to overturn a hearing officer’s ruling granting development approvals. County commissioners found that the hearing officer, attorney Tom Smith, should have recused himself and had a conflict of interest because he worked to secure a now-expired land-use approval for a previous owner of the property.
In overturning Smith’s decision, the board sided with neighboring property owners, who include Hyatt hotel heirs Tom and Margot Pritzker and have been fighting Celestial’s land application for five years. Issues raised by the neighbors include the potential home’s building envelope being in an avalanche path; they also cry foul over the request to use transferable development rights to increase the home’s size, since the TDRs would be landed on a constrained site.
Following the board’s decision on Feb. 26 to uphold the neighbors’ appeal of the hearing officer’s decision granting development approval, commissioners had planned to review the entire development plan themselves in May.
Celestial’s lawsuit seeks to prevent that, and settle the matter based on the hearing officer’s approval from 2013, before the neighbors’ latest appeal.
The eight-page complaint, filed by Denver attorney John D. Fognani, picks apart the contention that Smith had a conflict of interest and should have recused himself.
Smith represented the Deane family, who owned the land on Bulkley Drive before Celestial. Smith prepared a land-use application for the site in 2002 that resulted in approval for an 8,250-square-foot home, which apparently wasn’t big enough for the new owners.
Smith’s ruling in 2013 would have allowed a 13,250-square-foot house on the site.
According to the complaint, Smith “has no relationship with Celestial, [and] there was no continuing benefit to the Celestial property as a result of his having served as legal counsel to a [previous owner],” the complaint says.
The suit claims that the county commissioners did not follow applicable law in determining the conflict of interest, which, according to state statute cited by Celestial, only occurs if Smith were to have a “personal, financial or official stake in the outcome ... ”
County commissioners, in their resolution uphold the appeal, found “that a reasonable observer would have doubts about Mr. Smith’s ability to impartially adjudicate to what extent and under what additional conditions development should be allowed within the same area where Mr. Smith previously advocated for development entitlements.”
Such a determination is outside of the commissioners’ purview, according to the suit, and therefore the board abused its discretion and acted in an arbitrary and capricious manner.
Celestial sued over a 2010 decision by a previous hearing officer in the case, and settled with the county in 2012 to allow the latest round of review to go forward.