One-year extension granted to Brush Creek

Gates now has until October 31 to get towns to approve 156-unit proposal

By Kristy Acuff

The Gunnison Board of County Commissioners (BOCC) voted unanimously to grant developer Gary Gates a conditional one-year extension to submit the preliminary plan application for a housing development proposed for the 14-acre parcel at the corner of Brush Creek Road and Highway 135.

However, the board also stipulated that Gates must obtain formal approval of the proposal from three of the four entities that control development of the land by October 31, or the application for proposed development will be denied.

The four entities include Crested Butte Mountain Resort (CBMR), the towns of Crested Butte and Mt. Crested Butte, and Gunnison County, which are all party to a Memorandum of Understanding (MOU) that governs development of the land.

Gates now has seven weeks to secure formal approval for his latest proposal from at least three of those entities. CBMR and the county have consistently indicated they are fine with his proposal.

The BOCC approved the sketch plan for the housing development last year on August 7, 2018 with approximately 40 conditions, one of which included obtaining approval from three of the four parties to the MOU. At the time, the proposal was for a maximum 180 units, 65 percent of which were to be deed-restricted workforce housing.

A second condition of last year’s county sketch plan approval was that Gates conduct a well-pump test in the winter to “ensure a year-round consistent supply of water will be available to the proposed development.” Gates did not complete this test, however, due to, among other things, the high costs of such testing, according to Gatesco attorney Kendall Burgemeister.

The BOCC also required that Gates apply for sewage treatment for the proposed development from the East River Regional Sanitation District (ERRSD) before submitting a preliminary plan. However, Gates has yet to submit an application to the district for sanitation for the proposed project.

Under the terms of the Land Use Resolution (LUR), Gates had one year to meet all 40 of the conditions imposed by the BOCC and submit the preliminary plan for the development, a detailed plan that includes water, sewer and traffic analysis.

So far, CBMR and the county have indicated their approval, but in January, the towns of Crested Butte and Mt. Crested Butte indicated they would approve only if the proposal was reduced to a maximum 156 units with two parking spaces each (increased from one and a half proposed by Gates) and that five acres of the parcel be set aside for a future parking area/transit center.

Last week, Gates responded to the towns’ proposed changes, agreeing to reduce the number of units to 156. He did not agree to build two parking spaces per unit, or to set aside five acres for intercept parking, but proposes to leave two acres for future use instead.

The county LUR process allows applicants to receive an extension of the one-year deadline if they show “good cause” for extension and there have not been significant changes to either the land in question or the lands adjacent. In his application for an extension, Gates argued that because it took six months for the two towns to submit their conditions for approving the project, Gates could not complete either the remaining conditions imposed by the BOCC or the detailed preliminary plan in time to meet the one-year deadline.

“What we are here to decide today is whether the applicant showed good cause in meeting the one-year deadline, and therefore should be granted an extension,” said BOCC chairman Jonathan Houck. “And according to deputy attorney [Matthew] Hoyt, good cause means, in part, that deadlines cannot be met despite a party’s diligent efforts. We are not here to determine whether three of the four entities will agree to the proposal. Nor are we here to discuss specifics of the proposal. We are simply to determine whether or not to grant the extension.”

“In terms of garnering consent from the towns regarding this proposal, it may happen, it may not happen, but that is not your concern at this time,” explained county attorney David Baumgarten. “You may want to issue a date by which that consent must be obtained as part of your extension. But today is not a day to try to figure out how that consent may or may not happen.”

“In granting an extension, we could say we need three out of four passengers in the car but we are not going to talk about the make of the car, the cost of the car, what it looks like,” clarified Houck. “We could say you need to get the passengers in the car by this date but not specify anything more.”

“That is correct,” responded Baumgarten.

Houck then addressed Gates and Burgemeister, saying, “Let’s hear about why you think you have met the threshold for the extension.”

“The town imposing its conditions in late January did not allow us time to conduct the pump test in February. We did not want to spend tens of thousands of dollars on a pump test for a project that may not even make it to preliminary plan,” explained Burgemeister. “And the argument that we have done nothing to evaluate the water supply, that is not true. We have continued monitoring the water supply for two years and submitted that additional data. There is no data to suggest that aquifer is not refilling, even after the 2018 drought year. There is nothing to suggest that two wells in our proposal would injure existing wells.”

Burgemeister went on to laud Gary Gates for his perseverance and dedication to the project for affordable housing in the valley. “The one thing that is not assailable is Gary’s commitment to this project. He discovered this property and approached the entities and is committed to seeing it through,” Burgemeister concluded.

After listening to Burgemeister make the case in favor of granting an extension, none of the commissioners had further questions. Houck addressed the public in attendance and granted them time to comment.

Mt. Crested Butte mayor Janet Farmer suggested the board grant an extension of less than a year and expressed frustration that Gates had not contacted town officials prior to mid-July. Crested Butte mayor Jim Schmidt echoed Farmer’s concerns about the lack of communication from Gates since mid-January when the town issued its conditions.

Speaking on behalf of the Friends of Brush Creek, attorney David Leinsdorf addressed the commissioners, saying, “The compromise that has been forged satisfies no one. Neither town council is inclined to revisit this issue. Those three issues that the councils identified after hours and hours of deliberation have not been addressed here. Mr. Gates has had six months to work assiduously to satisfy those issues. He has made a lot of excuses but excuses do not satisfy good cause. If you want to give Gates a month or so that might be appropriate, but granting a year extension is not warranted.”

Dara McDonald, town manager for Crested Butte, reiterated the point that a year is too long. “The Crested Butte Town Council received Gates’ letter on Wednesday morning and has not had the opportunity to take a position on the additional information including the reduction in the number of units,” explained McDonald. “This is very specific information and I would suggest that any decision on that extension be postponed until the town has had the opportunity to discuss this information. Or grant a shorter extension as suggested by mayor Farmer. Affordable housing is a priority. If the application is not going to move forward, we would like to know that so we can move on and come up with alternative plans for housing at that location.”

In the end, commissioners decided unanimously to grant a one-year extension for Gates to submit a preliminary plan with the condition that he secure formal written approval from three of the four parties to the MOU by October 31 of this year. If he does not secure approval, the application will be denied.

The two town councils began the process of scheduling a meeting to discuss the changes (see page 11). The idea is to have all four partners in the same room as the Gatesco team later this month.