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Home My WebLink About1.11 G&H Letter to County re. PUD ModificationGlenwood Springs Office 901 Grand Avenue, Suite 201 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com October 30, 2020 DAVID H. MCCONAUGHY dmcconaughy@garfieldhecht.com HALEY M. CARMER hcarmer@garfieldhecht.com Via E-Mail Sheryl Bower, Director Garfield County Community Development Department 108 8th Street, Suite 401 Glenwood Springs, Colorado 81601 E-mail: sbower@garfield-county.com RE: Aspen Glen PUD Amendment Request for Determination Dear Ms. Bower: As indicated in the enclosed Letter of Authorization and Land Use Change Application, Aspen Glen Golf Company (“Applicant”) has authorized Garfield & Hecht, P.C. to pursue an amendment of the Aspen Glen PUD to remove the Eagle Nest Buffer Zone (the “Application”). Applicant is the owner of the three parcels (the “Subject Parcels”) within the PUD identified in the enclosed application form. On October 15, 2020, a pre-application conference was held regarding the Application in compliance with Section 6-203(B) of the Garfield County Land Use and Development Code (“LUDC”). During the conference we discussed whether the Application would be a minor or substantial modification of the PUD. Staff requested that we submit a formal request for determination of the nature of the Application prior to submitting the same. Please accept this letter as Applicant’s request for such a determination. Considering the review criteria set forth in LUDC Section 6-203(C), it is Applicant’s position that the Application constitutes a minor modification of the Aspen Glen PUD. According to that Section, minor PUD modifications are those that “deviate from previously-approved standards” or rearrange or reconfigure site improvements within the PUD. Neither is proposed here. In fact, rather than seeking any deviation from a previously-approved standard, Applicant is simply following the process set forth in the Resolution (defined below) to render the approved, underlying zoning effective. To further support its position, Applicant addresses each of the eight minor modification criteria below. 1.Conformance with the Comprehensive Plan. The Aspen Glen PUD Plan was initially approved by Garfield County Resolution No. 92-056 (the “Resolution”), which is submitted herewith. As indicated in finding number 7 of the Resolution, the Board of EXHIBIT K Ms. Sheryl Bower October 30, 2020 Page 2 of 4 County Commissioners (“BOCC”) found that, subject to compliance with the Resolution’s conditions of approval, the PUD would be in general conformance with the Garfield County Comprehensive Plan. Conditions 6 – 16 of the Resolution inserted an Eagle Nest Buffer Zone as part of the PUD Plan. Condition 16 specifically acknowledges and anticipates that the Buffer Zone may be removed if approved by the Colorado Division of Wildlife (now Colorado Parks and Wildlife) (“CPW”) and the BOCC. By expressly allowing the removal of the Buffer Zone PUD, the BOCC found that the PUD would comply with the Comprehensive Plan—including its wildlife policies and strategies—with or without the Buffer Zone. In any event, the proposed amendment will further the Comp Plan’s policy of collaborating with state and federal agencies on wildlife matters and help reduce the housing deficit in the County by allowing future residential development in the PUD. 2. Consistency with efficient development and preservation of the character of the development. The only parcels that are currently within the Buffer Zone are those owned by Applicant. Each of the Subject Parcels has an underlying zone district that contemplates residential development. Specifically, Parcel 390 is zoned Club Villas Residential, Parcel 245 is zoned ¼ Acre Residential, and Parcel 246 is zoned ¾ Acre Residential. Amending the PUD to remove the Buffer Zone will result in the Subject Parcels being developed in a manner consistent with the requirements of the PUD and in conformance with adjacent properties so as to preserve and enhance the character of PUD as a whole. Moreover, a preliminary plan for The Aspen Glen PUD, including Parcels 245 and 246, was approved in 1993 by Resolution 93-121. Under that plan, sixteen ¼-acre lots were approved for Parcel 245, and nine, ¾-acre lots were approved for Parcel 246. While dwellings on those lots cannot be constructed until the Buffer Zone is removed, the data summary on the Aspen Glen PUD zoning map includes the Parcel 245 and 246 units in the total number of approved dwelling units for the PUD. Thus, amending the PUD to eliminate the Buffer Zone and allow development of the Subject Parcels is consistent with the anticipated and approved development of the PUD. 3. Does not increase density. The proposed amendment will not alter the densities allowed for each Subject Parcel by their underlying zoning designations, nor will it add additional, unapproved lots or dwelling units to the PUD. 4. Does not decrease the amount of dedicated Open Space. While all of the Subject Parcels are currently undeveloped, none of them are zo ned, dedicated, or otherwise restricted as open space. As such, amending the PUD as proposed to allow future development of the Subject Parcels will have no impact on the amount of dedicated Open Space within the PUD. 5. Does not affect, in a substantially adverse manner, either the enjoyment of the land abutting upon or across the road from the PUD or the public interest. Removing the Buffer Zone to allow development of the Subject Parcels will not affect the enjoyment of land abutting or across the road from the PUD. Parcel 246 is located Ms. Sheryl Bower October 30, 2020 Page 3 of 4 in the interior of the PUD and does not abut any non-PUD lands. The PUD amendment will not allow any of the three parcels to be more intensively developed or developed in a different manner than what is already allowed in the underlying PUD zone districts applicable to the Subject Parcels. Additionally, the public interest will not be impacted by the proposed amendment because (a) all of the Subject Parcels are private property that adjacent property owners and members of the public have no right to enter upon or use, and (b) the amendment is only an option because CPW has determined that the original nest warranting the Buffer Zone is gone, and the Buffer Zone is no longer necessary to protect wildlife habitat. 6. Does not change the use category of the PUD between residential, commercial, or industrial uses. The Applicat ion does not propose any change in the underlying zoning of the Subject Parcels, so there will be no change from the permitted residential use thereof to any other type of use. 7. Will not be granted solely to confer a special benefit upon any person. Amending the PUD as proposed in the forthcoming application will not confer a special benefit upon any one person. It will simply allow the current or future owner of any Subject Parcel or portion thereof to develop its property in conformity with the underlying PUD zoning district s just like adjacent property owners are currently able to do. 8. Shall not affect the rights of the residents, occupants, and owners of the PUD to maintain and enforce those provisions at law or in equity. Eliminating the Buffer Zone will not affect the rights of the residents, occupants, or owners within the PUD to enforce the remaining provisions of the PUD, including development of the Subject Parcles in conformance with the underlying zone district standards. In addition to the foregoing, the Resolution’s anticipation for removal of the Buffer Zone with CPW’s approval indicates the minor nature of the proposed amendment. That is, the BOCC has already decided that there is no need for the Buffer Zone—and that removing it will not adversely impact the PUD—provided that certain conditions precedent have been met. Accordingly, upon the occurrence of those conditions, it would be a matter of procedure, not substance, to remove the Buffer Zone. Per the enclosed e-mail from CPW from last year, the Buffer Zone is no longer warranted, so the process to amend the PUD to remove it should be straightforward. The LUDC allows the Director or an affected adjacent property owner to call-up matters to the BOCC. If staff feels that it is necessary for the BOCC to weigh in on the amendment, the call-up procedures for a decision on the minor PUD mo dification are available for that purpose. Those procedures also allow an affected property owner to request a public hearing on the decision. As such, finding the Application to be a minor modification of the PUD will not foreclose review of the Application by the BOCC if such review is warranted. Please let us know if you need any additional information to determine whether or not the Application is a minor modification that may be decided administratively. If you have everything Ms. Sheryl Bower October 30, 2020 Page 4 of 4 you need, we look for ward to receiving your determination and a list of required Application materials and working with the County as we proceed through the PUD amendment process. Sincerely, GARFIELD & HECHT, P.C. David H. McConaughy, Esq. Haley M. Carmer, Esq. Enclosures CC: Chad Lee Larry Green Patrick Waller Glenn Hartmann