Pitkin County commissioners last week held off on approving a proposed amendment to the land-use code relating to the development appeals process after members of area caucuses and others complained that they hadn’t been given ample notice and explanation of the potential change.
At the end of last Wednesday’s regular meeting — following commissioners’ decision to continue to Sept. 11 the discussion on Aspen Skiing Co.’s request to have 167 acres of property on the back side of Aspen Mountain rezoned to accommodate the Pandora’s ski-area expansion — commissioners took up the unrelated land-use code amendment issue.
Assistant county attorney Richard Neiley, who is suggesting the change as a way of cleaning up the code, said the amendment would remove the automatic stay provision that goes into effect when an interested party challenges a land-use approval that was decided either by the Board of County Commissioners or administratively, or by a hearing officer.
He explained that the amendment would not affect the automatic stay that goes into effect when the BOCC itself challenges a land-use approval made administratively or by a hearing officer. However, “it does specifically take away the ability of an interested party to implement this automatic stay,” Neiley said.
Commissioner Greg Poschman asked about the original intent of the automatic-stay provision, which any “interested party” can trigger following a land-use approval that may not be to that party’s liking.
Neiley said it was his understanding that the original intent was to prevent a development applicant from submitting multiple land-use applications for the same property. For example, if an application were denied, or approved in part, an applicant could challenge that decision while also submitting an amended application or a completely new application.
And if that were to happen, then commissioners would be “essentially faced with multiple applications for the same property, without any finality as to resolution on one application or the other.”
Development applications are either reviewed administratively or by the BOCC, if the code requires review at that level. If a decision is subsequently challenged — either to commissioners or in district court — an automatic stay goes into effect, Neiley said.
There are provisions under the code that allow for the stay to be potentially lifted or modified. The development applicant can request that the stay be removed, and a decision for removal has to be made by commissioners within 60 days of the date the stay is implemented.
Neiley said that’s the part of the code that’s problematic, because the standard for lifting the stay is “whether there is any impact on the underlying development approval.” In almost every instance, he said, the argument could be made that if the board were to overturn the appeal or make a modification to it, there would be some kind of impact on the underlying development approval.
“So in effect, the relief from the stay is really nonexistent,” he said. “It’s in the code but it’s relatively meaningless.”
Thus, the stay remains in place until there’s a final determination from the BOCC or the court on the appeal, Neiley said.
If there is no stay in place, commissioners would still have ample time to review an appeal, he suggested, because generally many months pass from the day a land-use application is approved to the day when a building permit is issued. Therefore, an appeal review can be reasonably accommodated before the building permit is actually issued, he said.
With the technical aspects of the issue being somewhat confusing, Poschman interjected to make sure he and other commissioners understood what was being asked of them.
“We’re not taking away the right of any individual to protest or oppose something,” Poschman said. “What we’re doing is taking away an automatic stay … when someone decides for whatever reason they want to oppose something.”
Neiley replied that through the appeal process, the ability to challenge a land-use decision would indeed remain intact. However, he brought up the possibility of a rare scenario in which a developer receives an approval, someone challenges it and no stay is in place. Should a building permit be issued before the appeal hearing, a developer could potentially rush the construction to completion, particularly if it’s a small-scale project, and a court would hesitate to order that the project be torn down.
Commissioner Patti Clapper said it seemed to her the amendment could protect the “small applicant developer,” such as someone building an addition to their house, from continual delays caused by an automatic stay. She also said that code amendments of the type under discussion aren’t usually matters that are referred out to county caucuses.
Neiley said he wanted to address the concern raised by a caucus that the county is trying to pass an emergency ordinance. It’s not drafted as such, and there is no impetus to have the amendment, which already has passed on first reading, to be adopted immediately.
“The idea that this is some hasty request by the county attorney’s office just isn’t the case,” he said.
Commissioners will consider the amendment again when it comes back for final reading Oct. 9.