No end in sight for Foothills

“Let the county take it on”

There was no red light/green light discussion during the most recent debate on the Foothills annexation sketch plan, despite the hopes of both the town Planning Commission and the annexation proponents to reach a decision by the end of the meeting.

After four and a half hours of debate on Tuesday, October 13, the Planning Commission was still not prepared to make a decision.
The issue of the old town dump was a major point of contention, as both sides struggled to determine who was liable for the dump and who should pay to clean it up.
The public, when given a chance to speak, showed consistent opposition to the annexation plan.
The ongoing public hearing over the merits of the Foothills sketch plan, which began nearly a month ago, was continued for a second time to October 21 at 7 p.m., to be preceded by a work session for the council and developers to work out the remaining kinks in the sketch plan approval.
The sketch plan calls for approximately 158 units on 44 acres between the north border of town and the cemetery. With credit for some offsite mitigations, the plan is made up of more than 51 percent deed-restricted affordable housing.
At the meeting on Tuesday, town planner John Hess presented the Planning Commission—which is comprised of Town Council members—with a list of accepted and unaccepted conditions of the annexation agreement. In the last year of discussions regarding the Foothills annexation, the town staff had developed a list of 105 conditions that had to be met before the sketch plan could be approved. With the Planning Commission seemingly ready to make a final decision that night (as indicated during the previous public hearing on September 28), Hess wanted to make sure they were comfortable with each condition. Hess said that the developers had already agreed to most of the conditions.
The commission moved thorough the first 14 conditions relatively quickly, including conditions that affected lot sizes and wetlands buffers.
Condition 15, which deals with the old dump, was an immediate stumbling block. “This is a huge topic and I suspect we’ll be here a while,” Hess said. He noted that condition 15 had several sub-conditions, such as requiring the developer to finish the cleanup work on the dump before developing adjacent land, and submitting  a letter of credit in case there were problems with the cleanup.
Commissioner Leah Williams said she wanted to add a condition requiring the formation of a dump cleanup advisory group, similar to the Standard Mine Advisory Group (SMAG). Regarding SMAG, Williams said, “We had community involvement where we had meetings and visited the site. It was very helpful to alleviate the concerns and fears of all of us in the community.”
The idea of using a 1 percent real estate transfer tax (RETT) to fund the cleanup was also hard for the commission to agree on. The RETT was originally incorporated in the sketch plan agreement as a way to generate funds for renewable energy and energy efficiency upgrades throughout the development.
In early September the Foothills developers sent a letter to the town claiming that the town was legally liable for the cleanup of the dump. The developers proposed covering the initial cost of cleaning up the dump, and proposed that the town repay that cost via the RETT.
“We need a way to get that money recouped, so what we proposed is recouping in part from the voluntary transfer fee,” Foothills lead attorney Jim Starr said. “Once that fee is used to pay the cost of cleanup, it can then go to sustainability. “
Town finance director Lois Rozman said she had calculated that it could take 18 years of using the 1 percent RETT to pay back the estimated $2 million cleanup cost.
Commissioner Billy Rankin, appearing via phone, said he had issues with using the RETT for cleanup of the dump. “I think it’s completely impossible to meet the reductions in our energy action plan without that 1 percent,” he said.
Commissioner Dan Escalante said he had a hard time making a decision without truly knowing what was in the dump and how much cleanup would cost. “My decision here weighs heavily on what the financial toll is to the town,” he said. ”If it’s not a big deal and we start getting that 1 percent back early, that’s great, but if that 1 percent is gone, I want to make sure everything else is being met, such as the maximum amount of affordable housing and open space.”
David Stringfield, a principal of Fairways G.H. Paradise, the group proposing the annexation, said it wasn’t their intention to eliminate the 1 percent RETT for sustainability measures. “We don’t want to take this 1 percent fee and just have it come back to pay for dump cleanup. I pray it’s not that bad, and that 1 percent just goes back to the town. But we have to work together to come up with a plan to find out what’s there and how to get it cleaned up,” Stringfield said.
Bernholtz asked why the developers originally proposed to pay for the cleanup, and then changed their plans, placing the burden on the town.
Stringfield said the developers had their building plans reduced by 60 percent, which cut back the benefits they would be able to provide.
Escalante said he didn’t know the history of the dump, but he imagined it had been used by many residents of the East River Valley, not just townsfolk. He said it seemed like the county might be liable in some way.
Hess agreed. He said his understanding of who was liable included “whoever owned the property, whoever operated the property, and all those people who dumped in the dump.”
Escalante said it was important to conduct a further site characterization study. “I think that’s going to have a huge affect on any decision we make,” he said.
Commissioner Margot Levy agreed. “It seems to me everything hinges on where this characterization goes,” she said.
Hess estimated it would take a month and a half to complete the characterization study.
Commissioner Skip Berkshire said they needed to look beyond the characterization study and find out what the actual liability was. Berkshire also suggested adding a condition that allowed the town to find other ways to pay back the cleanup cost.
Hess said that condition was already included.
But then the developers threw another curveball.
Foothills lead attorney Starr said, “We’re proposing that if we have sketch plan approval by the 20th, we’ll go ahead and pay for that characterization study.”
Hess cautioned the council from being rushed into making a decision because of a financial issue rather than the actual merits of the project. The site characterization study is estmiated to cost about $40,000. He also said the council was digging into the characterization study more than necessary. “It’s not going to say how much it will cost to clean up the site,” Hess said.
He said that figure would come from the state’s development of a voluntary cleanup work plan based on the results of the characterization study. That process could take three to six months.
Bernholtz asked the other commissioners if they felt it was prudent to make a decision soon to potentially save $40,000.
Escalante said he felt no obligation to move forward.
Town attorney John Belkin said approving the sketch plan put no responsibility on the town to actually clean up the dump. “The way this is drafted you have numerous escape routes,” he said.
The Planning Commission and the developers continued to work through the wording of condition 15, but neither side was ready to discuss two new conditions that gave the town legal protection. Condition 15, subsection M states, “The subdivider shall assume the risk, waive all claims and indemnify the town relative to the town dump cleanup” and subsection N states that the subdivider and its successors “waive all claims against town relative to the town dump.”
Starr admitted that figuring out the liability issue was something they might not be able to resolve that night.
At that point, three hours into the meeting, the crowd was getting restless.
Bernholtz decided to take a five-minute break. Then the meeting resumed, with the public getting a chance to speak.
Town resident David Leinsdorf said he was upset that the town and the developer spent the last three hours negotiating between themselves, when the meeting was posted as a public hearing.
“I think it’s clear that you need a lot more time before you act on this sketch plan,” said Leinsdorf. “Tonight you got through only seven of 25 pages… The developer is throwing out new language the public has not had an opportunity to review. I think you have to wait until the site characterization is completed and the cost of cleanup is known before you can act on the sketch plan.”
Leinsdorf said the council also needed to step back and truly find who has legal responsibility for the dump and what defense might be available if the developers sue the town to clean up the land.
Resident Larry Mosher said he agreed exactly with Leinsdorf. “I wonder how the council can go forward without knowing the dimensions of the problem it faces,” he said.
Town resident Cricket Farrington said the town was wasting time trying to make the dump situation work.
She said the annexation “is just not going to work. It’s going to permanently damage our town.”
Peter Esposito, who lives just north of the proposed annexation, said he felt the town was trying to move forward so it didn’t have to pay for the $40,000 characterization study. He said the dump was probably not solely the town’s liability. “It could take years to figure out who has liability. If it’s going to take years, these guys here are going to take [the characterization study] on so they can get on with their project,” Esposito said.
Esposito said his main concerns were with traffic and water, not the dump, but he hadn’t heard anything about those issues being addressed.
Local resident Wayne Meredith was working in Crested Butte when the dump was still in use. “The dump was a burn dump… It was not a landfill that gets buried,” he said. “Stuff was put in large piles and burned on the surface of the ground—drum barrels, gas, and car batteries all burn to some extent, but most of the toxins in them do not.”
Meredith questioned the thoroughness of the initial site assessment conducted by the developers. He said it was strange that they dug a dozen holes and took only two soil samples. Added to this, Meredith said, there was no indication from how deep in each hole the soil samples were taken.
Town resident Jim Schmidt said the annexation process started with the proponents listing all the benefits the town could realize with the annexation. “It seems like now their biggest plus is, Don’t Get Sued,” he said.
Schmidt said he agreed with Esposito and questioned whether there was enough water for the development. .
Resident Sue Navy said the development plan wasn’t ready and the town shouldn’t hurry for any reason, including the fact that several new faces will be on the council in November. “I think the council has been doing a really good job. I would like to see this council continue to participate. If that means you come back after the election as someone in the public, that’s fine with me. “
Resident Roland Mason agreed that the town shouldn’t be rushed to make a decision.
Mindy Sturm noted that there has lately been so much discussion of the dump that its negative perception will remain in the minds of potential real estate purchasers for many years. “The dump is going to negatively affect sellability. This is a development that does not need to be passed, or considered, or take any more time and town dollars. It should be done and dead,” Sturm said. “I say let the county take it on.”
A few other comments were made and Belkin said the commission would probably need another work session to resolve the remaining issues. “I prefer you continue the public hearing and go back in a work session and talk about it,” Belkin said.
The commission made a motion to continue the public hearing at 7 p.m. on Wednesday, October 21. Bernholtz may be out of town on that date but agreed to participate via phone conference. The work session will precede the hearing at 5 p.m.
With the public hearing set, the commissioners made a few final comments before the meeting was adjourned.
Bernholtz said he thought the current plan was un-salvageable. “I think the best idea is to ‘Etch-a-Sketch’ it gone… It took us three hours to get through seven pages of a 25-page document. That tells me that it’s a no go.”
Escalante took a different stance. “I think there are a lot of great things in this proposal. Do I want to see it go away completely? No, I don’t. But I’m not ready to make a decision.”
Escalante said he liked Esposito’s suggestion of figuring out who was really liable for the dump, concluding, ”We need to take the time to figure out what’s really there and what it’s going to cost.”