The Crested Butte News Serving the Gunnison Valley since 1999
“No person may judge his own case”
by Katherine Nettles
As Gunnison County officials prepare for two appeals hearings next week on their recent decision to approve the Lower Verzuh major impact project sketch plan application (with conditions), a new motion to disqualify two of the three county commissioners from participating in the appeal was submitted on Monday.
Marc D. Sarnoff submitted the new motion to Gunnison County on September 14 asking that commissioners Liz Smith and Jonathan Houck be disqualified from their roles as county board of adjustment (BOA) members in the upcoming appeals hearings on September 23. Sarnoff had also submitted the first of the appeals to the county, on September 1, citing issues with several aspects of the application and arguing that the commissioners had abused their discretion based on arbitrary and insufficient evidence.
The board of adjustment is responsible for hearing the two appeals that have come in opposing county commissioners’ approval of the Lower Verzuh application, and Sarnoff points out that the commissioners would be reviewing appeals of a decision they made. “The due process [the appellant] invokes is that no person may judge his own case—that is, to sit in review of an act he took and has an interest in defending.”
Sarnoff also noted that following a recent, unrelated court case, the Gunnison County Planning Commission moved final authority over land-use appeals from the county commissioners to the BOA; “This section changed to align with the court order and state statute. The BOA will now be comprised of two regular members appointed by the board of county commissioners and three members of the board of county commissioners,” as stated in the motion.
Sarnoff asked that alternates be appointed “so the appeal may proceed before a tribunal capable of impartial decision.”
Sarnoff notes in his motion, “Commissioners Houck and Smith are the two votes that approved the Lower Verzuh Sketch Plan, now under appeal. Both commissioners sit in this five-member BOA.”
Sarnoff cites that the county Land Use Resolution (LUR) requires the concurring vote of four of five members to reverse, and “the result is that the two officials whose decision is under review hold, between them, an absolute veto over any correction of that decision.”
Sarnoff did not request disqualification of commissioner Laura Puckett Daniels, who voted against the application.
April Kroner, assistant county manager for community and economic development, said both appeals will be addressed at the September 23 hearing, if not concluded. She said the newer motion to disqualify some commissioners will be addressed by the BOA as well.
“Both appeals are scheduled to be addressed on the 23rd,” said Kroner in an email to the Crested Butte News. “Note that we will start with one appeal and it will depend on how far that item gets by approximately noon. We do need to at least open the second appeal next week, but if the first appeal is taking substantial time, the second appeal would simply be opened and then continued to another date. It is unknown how long the discussions will take.”
Kroner also outlined the plan for the hearing. “In short, the BOA will need to 1) determine if the appeal is valid (i.e., met timelines for submittal); 2) determine if the appellants have standing to make an appeal; 3) determine if a public hearing is warranted (per stipulations identified in the LUR); and then when those three are completed, the BOA will 4) discuss and make a decision on the appeal. The appeal can be affirmed, meaning the BOA concurs with the BOCC’s decision, reversed, meaning the project would be denied, modified, or remanded back to the decision-making body.”
The applicants, Bill Lacy and Daniel Dow of Lacy and Dow LLC propose to develop a 450-acre parcel near Brush Creek Road along the east side of Highway 135 for 338 residential lots. The lots would accommodate 433 units, including 179 essential housing units.
