Retaining wall in Mt. Crested Butte an eyesore for neighbors

“I feel the town should remedy the situation”

Town officials from Mt. Crested Butte admitted during their last council meeting that a landowner who began a construction project on Paradise Road last year may have “overstepped” the permit he was issued.

Now neighbors are complaining that a retaining wall that is part of the project is an eyesore, and they are looking to the town for a solution.
The wall was built by James Maxfield, a Mt. Crested Butte second-home owner from Arizona. The landscaping project was meant to level out the property on the south side of his house, and necessitated that a wall be built to hold the additional fill material. The wall consists of a row of concrete posts about three feet high and six inches thick, which are set vertically in intervals.  The posts hold back wooden planks, which in turn are holding back the landscaped dirt. Maxfield has indicated to the town that he would like to complete the project and improve its appearance with asphalt shingles.
For the past year, Maxfield’s neighbor, Beverly Keir, has called town officials and sent letters asking about the wall—how it was permitted, what sort of architectural definitions it met, and when the project was going to be finished.
During the Town Council meeting on Tuesday, October 7, Keir said she had focused her inquires to a simple question: Did the town follow the correct process when it issued the permit?
Town officials argued they had.
Town manager Joe Fitzpatrick provided some history about the landscaping project. Maxfield began the project in the spring of 2007 without an excavation permit. The town ordered him to stop and come in to get a permit before proceeding further. At the time excavation permits (necessary for earthwork) were being issued by the town maintenance department.
Community development director Bill Racek said based on Maxfield’s description, town code allowed this type of landscaping project to be authorized by staff without a design review by the town’s Planning Commission.
“It was evaluated by a responsible person and a permit was issued,” Fitzpatrick said.
During the recent correspondence between Keir and town officials, Fitzpatrick said he originally thought the structure did not meet the definition of a “retaining wall,” which does require a design review. But Fitzpatrick corrected himself and said the wall has concrete foundations that go below ground, and by code concrete is measured from below grade.
Fitzpatrick said there were three ways the town could proceed. “Our goal is to find a solution,” he said.
The first option would be to work cooperatively with Maxfield to ensure he finishes the project to appropriate standards.
The second option would be to cash in a $1,500 performance deposit and let the town finish the work. Fitzpatrick said the permit description stated the project would be complete in October 2007; since it was not finished, the town had the right to use the deposit to finish the work. Fitzpatrick said to finish the project may cost more than $1,500; if so the town has the option to place a lien on the property.
Fitzpatrick said the third option would entail action by a Paradise Road homeowner, and involves filing a lawsuit claiming the excavation project is in violation of the Paradise Homeowners Association covenants, which prohibit structures within a 16-foot-wide easement between each property.
Town attorney Rod Landwehr said the homeowners’ covenants for that neighborhood existed before the town was incorporated and any homeowner has the right to enforce them.
Councilman Mike Kube said he had the impression that Keir preferred having the wall removed, rather than finished and visually improved.
Keir agreed that was so.
Councilman Gary Keiser agreed the wall was an eyesore. “I looked at it; it looks bad,” he said.
Mayor William Buck said, “Probably everyone has seen it.”
Councilman Bill Babbitt asked if a project sketch or drawing was submitted, and Racek said no.
Babbitt felt the project was more than what was bargained for. “I’m having trouble with him wanting to shingle the side of this retaining wall and there was no drawing submitted. I think he needs to come back before the Planning Commission for approval. It looks to me he’s overstepping what was issued.”
Councilwoman Wendy Fisher told staff, “I feel you guys have let him overstep his position… The wall looks like it’s already falling over.”
Landwehr said the town’s permit represented a contractual agreement with Maxfield, and they could not revoke the permit or penalize Maxfield due to a potential backlash through a legal defense mechanism known as promissory estoppel. Landwehr said the town could have Maxfield rebuild the wall if it is found to be structurally unstable.
Council member David Clayton asked about a wall holding back fill on the west side of the property, which was not described in the permit. “It has basically been made of junk that has been put against the fence line,” Clayton said.
Racek agreed the wall to the west was not permitted, there was no disclosure of it, and the town could pursue removing that wall. But Racek urged cooperation with the landowner first. “I would advise the council not to require us to seek some kind of penalty… unless the council understands we’re going to be spending some money (fixing the wall).”
Kube encouraged the neighboring property owners to use the authority of their covenants. “Let’s even assume that somebody made a mistake. People aren’t perfect and our staff isn’t perfect and if they made a mistake in 1,000 applications, well, okay. Unfortunately it impacted you and there are only certain things we are able to do. One of the things you can do is… file a lawsuit. If you win, it gets rid of the whole problem.”
Keir said she felt like she was being cornered. “I’m being forced into a lawsuit because the town issued a permit that shouldn’t have been issued… I can’t afford to sue somebody for a position the town has put me in… I feel the town should remedy the situation.”
Buck said the town was willing to move forward on the options it could take.
Babbitt said he supported giving Maxfield a deadline to complete the project and using the performance credit if necessary.
Cindy Cohen, a neighboring homeowner, asked if there would be a conflict if the town encouraged Maxfield to finish the project while the homeowners file a lawsuit.
Landwehr agreed that could put the town at “cross purposes,” but the lawsuit would take precedence.
Clayton said he didn’t want to see that kind of conflict.
Buck said the town would investigate its potential options and inform Keir of the result, while in the meantime Maxfield would have a chance to finish his landscaping project.