Butcher Creek

A rendering of the homes that were proposed as part of a new initiative to develop the Butcher Creek area. Citing their legality, the Town of Telluride recently rejected two petitioners’ committee affidavits seeking a ballot initiative that would put the development question to the voters. (Courtesy image)

The Town of Telluride recently rejected affidavits submitted May 24 and June 5 by a petitioners’ committee that sought to create a ballot initiative to rezone open space on the northwest hillside behind the Telluride Middle/High School and develop town-owned land for a housing project, citing several legal issues.

Scott Emerson, president of Rico-based Brighton Properties, outlined plans to build 85 new homes — 60 deed restricted units and 25 free market houses — on a 6.2 acre Butcher Creek Annexation parcel (Lot A) he owns, as well as 10 town-owned lots to the south of the open space piece. The first affidavit — signed Telluriders Matthew Hintermeister, Sheila Phinny and Sophia Fabrizio — was “fatally flawed” due to the inclusion of town-owned property, according to the town’s June 3 determination written by town attorney Kevin Geiger and clerk Tiffany Kavanaugh.

Town Council ultimately determines the use of town property, Geiger said, and said that was the main issue with the initial affidavit.  

“The one that stuck out to us in the most prominent way was the fact that they were already incorporating in or assuming the use of town property,” he said. “ … The law is pretty clear on that; the use of town property is administrative and subject to council’s discretion as to what they’re going to do, generally speaking, with town property.”

That wasn’t the only issue with the May 24 affidavit.

“The Affidavit of Petitioner’s Committee appears to include a proposed amendment to the Butcher Creek PUD (planned unit development), a Rezoning, a Subdivision application and a Development Agreement and/or Subdivision Improvements Agreement with the Town,” according to the determination. “While we will not address these issues in detail … we would observe that these other elements included in the (affidavit) are also site-specific development plans and are considered quasi-judicial Town actions, which are also specifically not permitted to be exercised under the power of initiative.”

The petitioners’ committee submitted a revised affidavit June 5, focusing mainly on rezoning the Lot A open space for development. But amending a PUD “certainly can’t” be done by ballot initiative alone, Geiger said. The town again rejected the affidavit, according to a June 12 determination.

“A PUD cannot be amended just by a ballot measure. There’s a land use process and state law provision that governs it as well, so there’s two levels of review or restrictions on it,” Geiger added.  

Both government and homeowner approval is necessary to amend a common open space restriction.

“The right of initiative cannot be used as a sword to violate clear LUC (land use code) and State law provisions that are designed to protect not only the public interest in a PUD plan but also the private rights of ‘residents, occupants, and owners’ to enforce and maintain a PUD,” the latest decision reads.

“They were trying to make an argument that they don’t need Town Council or the Planning & Zoning Commission involved at all, they can just do it through the ballot box,” Geiger said. “That was the analysis that I was trying to give is that the PUD has all these provisions in there that say it runs to the benefit of all the people in the PUD right now.”

The committee may submit another revised affidavit, Emerson said Tuesday, but is currently seeking further legal counsel.

“We don’t think the town is going to accept anything,” he said. “It’s very likely that the next thing will be the court deciding.”

Emerson explained he and the committee are open to working with council members and the Planning & Zoning Commission still, and creating a broader community discussion. As the committee prepared to submit the first affidavit, Emerson said he received a lot of positive feedback about the project, which proposes new housing for the middle class, as the deed restricted units would be priced between $349,000 and $449,000.

He had a message for those in support, “Keep the faith.”  

Geiger explained he heard from residents as well.

“I know a lot of the neighbors in that area are focused on this issue and concerned,” he said. “Any type of a change would be a major change to what is out there right now with the zoning on the property that it’s open space.”

Proponents of the development attended a May 2018 school board meeting to gauge the district’s interest. At that time, a parking garage, 70 deed-restricted homes (17 of which would be earmarked for teacher housing), an infant day care center, and a greenhouse and terraced garden beds were proposed on 37 acres behind the campus, portions of which are owned by Brighton Properties, the Town of Telluride and the Telluride School District.

Superintendent Mike Gass told the Daily Planet following last year’s meeting that the school board had “no interest in moving forward (with Emerson’s proposal).”

“This land, this 37-acre parcel, I think by all intentions when it was approved in 1995-96, no development was ever predicted or envisioned to occur on this parcel,” Geiger said Tuesday. “It was designed to be open space … and that’s still the town’s expectation.”

UPDATE: This story has been corrected to exclude Scott Emerson as one of the people who signed the initial affidavit submitted to the Town of Telluride.