Proponents of Foothills say town is liable for clean up of old dump

And they want help paying for additional open space

The Foothills of Crested Butte developers believe the town of Crested Butte holds the legal liability for the old town dump and is ultimately responsible for cleaning it up. A letter detailing the claim was sent to the Town September 9 from Foothills attorney Polly Jessen of the firm Kaplan Kirsch & Rockwell.

The letter states that “based on anecdotal information and information available from CDPHE [Colorado Department of Public Health and Environment], the town originally owned and operated the Dump and traded the Dump for approximately six acres of land adjacent to the former Spann/Trampe Land in the 1970s.”
Crested Butte Town Manager Susan Parker said she hasn’t seen anything to indicate the town is responsible for the dump. “We don’t concede to the position that the town is liable for the dump,” she said. “We are looking into everything. The title to the lands affected by the dump is being reviewed by our attorney.”
The correspondence from the developers cite letters from longtime local residents Wayne Meredith and Betty Barkman as part of their evidence, along with certificates from the Colorado Department of Health and Environment and the town of Crested Butte.
The letter from the developers states that “based on the factual scenario outlined above and our review of the relevant statutes and other legal authority, the Town appears to be the principal party responsible for the costs of further investigation and cleanup required to allow development of the portion of the Site affected by the Dump.”
Foothills attorney Aaron Huckstep said the developers hired Jessen because of her expertise. “She is an environmental lawyer and we engaged her to help us with the process,” he said. “The focus of the letter is theoretical liability. The ultimate objective is for our clients to find a way to work with the town to clean up the dump and pay for it over a deferred amount of time. We also wanted to let the town know the seriousness of the dump situation.”
The developers have suggested an idea that will facilitate paying for the cleanup. They have proposed to the town that in an effort to eliminate the dump, the developers will pay the upfront costs of the cleanup, estimated to be between $500,000 and $2.5 million, depending on the extent of the required cleanup. That figure should become more clear once a site characterization study recommended by the state takes place. The town will then collect a 1 percent real estate transfer fee on sales in the Foothills annexation. That money has been pitched by the developers as potentially going to help make the development “sustainable” and “green.”
Under the proposal, the repayment by the town would be spread out over several years. This could run into some TABOR problems. Under the Colorado TABOR laws, municipalities cannot enter into long-term debt without a vote of the people. This could be considered a repayment of a long-term loan. “We think we can structure it in such a way so it doesn’t violate TABOR,” said Huckstep.
Huckstep said the town staff and developers have not completely ignored the dump situation. “In respect to the dump, we’ve worked with the town to adjust the potential design of the block immediately north of Poverty Gulch to make it a public park,” Huckstep said.
That is the only location thus far where some traces of lead were found.
“This was a factor in deciding to put a park there after the phase-2 environmental assessment on the town’s land,” he explained.
Parker said the park was placed in the design at that site without any consideration to the dump or findings of lead. “The decision was made to put the park on the south end of the property before discussions about the lead findings were had with the developers,” she said.
The letter from Jessen to the town ends with a look toward the future. “Fairways (the development group) looks forward to working cooperatively with the town to craft an approach to completing further investigation and any necessary remediation of the Dump as the Foothills Development moves through the annexation process.”
The town’s position is that it has consistently stated it wants to require the developers to pay for the cleanup of the dump as part of the project.
On another issue, it also came to light this week that the developers have asked the town to consider contributing some funds in its open space fund to help pay for the Kochevar property. The Kochevar property is a total of 380 acres, but 106 of those acres sit at the end of the Slate River Road and are very visible from Crested Butte. The developers say that they have more than enough open space to meet the town Area Plan requirements with the purchase of just the 106 acres.
But the 106 acres cannot be sliced from the entire Kochevar parcel. So developers are asking the town to participate in paying for the land. The town hasn’t given the proponents an answer. There is about $1.2 million in the Crested Butte open space fund. The proponents have also spoken with other preservation groups in an effort to obtain the funding necessary to protect the entire Kochevar parcel.
The Town Council on Monday did instruct the staff to pursue acquisition of the property outside of the annexation process. The council members want to explore their options, see if other open space partners can be procured to help buy the property and see if that property can be protected.
A public comment meeting on the annexation’s sketch plan is scheduled for Tuesday, October 13 starting at 4 p.m. at the Town Council chambers.