County’s draft 1041 rules draw fresh criticism

“We feel it has some fatal flaws”

With the second draft of Gunnison County’s 1041 Regulations for Special Development Projects out for review, and a public hearing scheduled next week to discuss the third draft, there are some people in Mt. Crested Butte and Gunnison who are unhappy with the plan.

The Mt. Crested Butte Downtown Development Authority (DDA) is sending a letter to the county commissioners objecting to the ability of the “1041” regulations to control recreational developments. Crested Butte Mountain Resort (CBMR) sent a similar letter on October 2.
In addition, the Mt. Crested Butte Town Council will meet with the commissioners on Wednesday, October 15, and the 1041 regulations will be on the agenda. The next day, October 16, the Gunnison County Planning Commission will hold a public hearing to discuss the third draft of the regulations.
On Monday, October 6, DDA board member Jamie Watt raised the issue of the 1041 regulations during the DDA’s regular meeting. Watt said he believed the regulations could seriously hinder the approval process for the proposed ski terrain expansion onto Snodgrass Mountain by CBMR. He asked the board to consider writing an objection to the regulations.
Gunnison County’s Planning Department and the county attorney have been making revisions to the 1041 regulations over the past year. A second draft of the revised regulations was released in late August.
The regulations are intended to address extremely large projects with a significant potential impact on the county’s economy. Under the former regulations, projects would qualify if developers invested $10 million or more, increased the population of the county by 5 percent or increased the county’s workforce by 2 percent.
Under the proposed rule, most of the triggers would remain the same but developers would have to invest $25 million.
The regulations were first adopted in 1990 and first revised in 1994. The original 1041 regulations also contained requirements for recreational development. Those requirements included the need for marketing and feasibility studies, a housing needs assessment, and descriptions of a project’s impact on man-made and natural resources, wildlife and the environment.
Watt said the latest draft of the revised regulations contained even more hurdles a project would have to overcome to get approval. Watt said he believed the intent of the document was to deter the Lucky Jack Mine from development. Watt said he supported that intent, but did not support the regulations’ potential impact on the Snodgrass expansion.
“I think there’s a lot of people who don’t want the mine, but a lot of people want Snodgrass to happen… This could stop it,” Watt said.
Watt said he felt the regulations “are being forced through—they (the commissioners) want to vote on it soon.”
DDA board member Al Smith asked if the county had to follow the regulations word for word with each development, or if there was some leeway.
Watt said the county could change the regulations if they so decided, but he said, “It’s better if it just doesn’t even get in there.”
Watt thought it was questionable whether the county even had authority to regulate recreational development under the State’s statutes for 1041 regulations.
DDA member Michael Kraatz excused himself from the board’s eventual vote, but said he sent a letter on October 2 to the county attorney and planning director on CBMR’s behalf. “I’ve read all 131 pages… It’s a very onerous document that will have an incredible burden on whoever the applicant is. It could take a long, long time, and would be a very expensive proposition to even try to get through it,” Kraatz said.
Smith asked, “Is there a suggested way of fixing it, so it doesn’t attack the recreational portion?”
Kraatz said CBMR believed the document may require a complete re-write “We feel it has some fatal flaws,” he said.
Prior to the meeting, Gunnison County Planning Director Joanne Williams said CBMR’s letter, “raises issues of preemption that are not uncommon to be raised for any (Land Use Regulatory) authority that is trying to regulate activity on federal land.”
DDA member Sara Morgan agreed with Watt’s concerns, but questioned whether the DDA should write a letter of opposition.
Watt made the case and said by defeating Snodgrass, the regulations could have a serious impact on business within the DDA.
Smith said it was the DDA’s mission to promote business and infrastructure and a letter of opposition was appropriate. “I think if indeed recreation is a target, you could stop anything you like by tying it up with bureaucracy,” Smith said. He suggested the DDA write a letter to the county commissioners, “strongly objecting to the inclusion of recreation in this document.”
Watt and Smith said they would work on a letter to the county, which DDA chairman Allen Cox agreed he would sign. The board voted unanimously to send the letter.
The next day, Watt came before the Mt. Crested Butte Town Council as a private citizen and business owner and presented a similar argument. With the council scheduled to meet with the Gunnison County commissioners next week, Watt asked to have a discussion on the 1041 regulations as an agenda item during the council’s regular meeting on Tuesday, October 21.
Council member Gary Keiser said he felt there were two issues with the regulations—one, the inclusion of provisions for recreational development, and two, their over-regulatory nature. “It seems to me… (the county) set it up so it’s so burdensome nothing will go through on any development,” Keiser said.
Council member Mike Kube questioned whether the town had any say when recreational developments were included in the regulations. “Maybe that’s been done and I’m not aware of it,” he admitted. Kube said he couldn’t make it to the joint meeting next week, but asked that the council discuss the regulations’ potential effect on recreational development.
Mayor William Buck said, “It’s on the agenda.”
The proponents of the Lucky Jack Mine have also sent their concerns about the 1041 regulations to the county.
In a 16-page letter presented to the Planning Commission in August, Lucky Jack project developer U.S. Energy wrote that the second draft of regulations placed an undue burden on personal property rights that should concern the public and said the rules could constitute an “unconstitutional taking of private property.”
The statutory foundations the county’s 1041 regulations are built on are decades old.  
In 1974, the state legislature passed House Bill 1041, which encouraged local governments to designate geographic areas and certain activities that are of state significance. A permit from the local government was then required before the projects could proceed.
The latest version of Gunnison County’s 1041 regulations has gone through two drafts and county officials expect it will go through at least two more. The third draft will be released this week.
“That will go to our outside council for review and we’ll make some more changes. So there will probably be a fourth draft that goes to a public hearing before a final draft is adopted,” explains planning director Joanne Williams, adding that the hope is to complete the process before the end of the year.
“[The 1041 regulations are] intended to require a greater level of review of more issues than the standard LUR. The understanding is that a larger project will have greater impact,” says Williams. “We’re trying to make sure that the final version of the regulations will be written so they parallel the [National Environmental Policy Act] process.”
The regulations will be discussed during a meeting on Thursday, October 16 at 8 a.m. in the Blackstock government building in Gunnison.