A proposed rezoning from residential to mining for a 12-acre parcel north of Alma resulted in a denial and led each of the three Park County commissioners to say that it was with reluctance that his no vote was cast.
The rezoning hearing was part of the commissioners' Oct. 20 meeting. The rezoning was denied based on two rezoning standards.
First, the uses in the mining zone are not compatible with uses in the surrounding residential zone. Second, the rezoning is inconsistent with Park County's Strategic Master Plan.
The 12-acre property is located in Section 25, Township 8 south, Range 78 West at the end of Mine Dump Road. The parcel, created in 1927, is west of Placer Valley subdivision, which is north of Alma.
County records list the legal description as part of the Whipple Placer and Pratt #2 Placer patented mining claims.
"You can live with mining," Commissioner Mark Dowaliby said. He said that in the town of Alma, he and everyone lived with mining next door.
But Dowaliby said he was unwilling to change the "line drawn in the sand" west of this parcel that separated mining from residential. His reason was because people bought adjacent residential property thinking the parcel in question would always stay residential.
He also noted that if a company was ready to mine, the line in the sand could be changed.
"Probably the best use is mining," Commissioner John Tighe said. "But there needs to be a line in the sand between mining and residential."
Tighe said if an operating mine was on the property, it would be different.
Commissioner Dick Hodges said he agreed with Tighe's comments and if a mine existed today, it would be easier to rezone.
Hodges also said: "I like to see mining encouraged, but I strongly consider the Strategic Master Plan as a whole. I can't see a way to ignore the Strategic Master Plan."
Impact on subdivision
Hodges was also concerned about the impact to the Placer Valley subdivision if new roads or a huge conveyor belt was needed to mine in the area if this property stayed residential and, because of that, a tunnel could not be used as access to other mining properties. He said maybe rezoning it would cause less impact. But the concern was not enough for him to vote in favor of the rezoning.
The commissioners said another factor was that the property had been zoned residential since 1975, when zoning became a state requirement. All three said they thought the rezoning request was tax-motivated.
"I'm in a Catch-22," responded John Reiber, Earth Energy Resources LLC principal and owner of the property. "I can't use the property."
He said geological hazards would prevent using the property as residential. With the residential zoning, he could not "proof the property for mining or ore."
John Reiber and his father, Maury Reiber, longtime Fairplay resident now living in Littleton, own two mining companies and many mining-zoned properties in Park County.
John Reiber said there was a conditional use process that allowed residential use on mining zoned land, but no similar process for mining uses on land zoned residential.
He said the property was bought at a tax sale that classified the parcel as mining land and listed it as patented mining claims. He said a few years later, it was re-classified as vacant residential land. This increased the value of the property and the resulting taxes.
According to the Park County Assessor's website, the property was classified as non-producing patented mining land in 2010 with a value of $9,280. In 2011, it was classified as vacant land with a value of $57,028.
Reiber said the company would have never bought the land at the tax sale if there had been any indication that the property was zoned residential. He discovered the zoning after the taxes increased.
Reiber said he believed the land was improperly zoned as residential in 1975 when a broad brush was used that drew straight lines. Those straight lines also zoned parts of the National Forest as residential land.
Reiber said when Placer Valley was subdivided, parts of the Whipple and Pratt #2 placers became part of the subdivision, but the 12-acre parcel did not. He said if the subdivider had thought the parcel had value as residential, it would have been subdivided as well.
Intended use, mining
"The intended use has always been mining," Reiber said. "That interest has been taken from me."
He said it would be hard to get permits to build a house on it because of the geological hazards of a mining tunneland a mining rock dump.
The Kithil Tunnel, which extends between 3,500 and 4,500 feet underground, was built in 1927 to mine gold and silver deposits. The last 473 feet of the tunnel and portal (tunnel opening) are on the 12-acre parcel. The portal has collapsed but has not been sealed.
Reiber said a mining company was interested in opening the tunnel to explore and possibly mine formations above the tunnel.
In a follow-up conversation, Reiber told The Flume that a conservative estimate on the size of the mine rock dump was between 25 and 30 feet high, 50 to 60 feet wide at the base, 20 feet wide at the top and 150 feet in length.
In a written report to the commissioners, Reiber stated the dump contains between 10,000 and 13,000 tons of waste rock.
Reiber told The Flume that he believed only about the first 20 feet of the tunnel was collapsed, as evidenced by the subsidence on the ground surface.
At the rezoning hearing, Park County Planner John Deagan said the tunnel and mine dump did not pose a geological or a man-made hazard. He said the tunnel was collapsed and he had been able to climb the rock dump while healing from a broken leg.
When asked by Commissioner Dick Hodges how Deagan knew the tunnel and not just the portal was collapsed, Deagan replied he didn't know.
Charlie Spielman, testifying as a member of the mining community, opened his remarks by saying he usually appeared as a paid consultant for clients wanting to build residences on mining zoned land. At this hearing, he said he was not being paid, but was appearing pro bono in support of mining.
Value is tunnel
"Not everything fits into a cubbyhole when it comes to mining," Spielman said. "The value of this property is the tunnel to get access to minerals."
Spielman disagreed with Deagan on two points. He said portals are commonly collapsed. It was reasonable to believe that only the portal was collapsed and the tunnel was open. He also disagreed that the tunnel and mine dump were not hazards.
Spielman asked the commissioners to consider a reverse scenario, in which the request was to rezone a mining property with a tunnel and mine dump on it to residential. He believed the hazards would prevent a rezoning for residential use. He said this particular parcel should be rezoned to mining.
According to Spielman, mining interests are booming in the area because both gold and silver prices have increased in the past year.
"A mining boom is every bit as real as past residential booms," Spielman said.
His closing remarks were that the commissioners can't be reactive on the issue of mining versus residential development and that they have to set the stage to make mineral development easier or mining (and its associated tax revenue) would never come to Park County again.
Strategic Master Plan
The Planning Department Report stated the proposed rezoning was inconsistent with the county's Strategic Master Plan.
Guiding Principal VI.D.2 was the only guiding principal cited in the report. It states that light industrial uses should be targeted to the towns of Alma and Fairplay or existing Rural Centers and located adjacent or near similar uses, "except where the specific use requires a remote location, such as mining and resource extraction industries."
The report, written by Deagan, stated no uses similar to mining are adjacent to the parcel and that rezoning would create the possibility of mining activity adjacent to a residential subdivision (Placer Valley).
In researching the Strategic Master Plan, The Flume found that in the same section of the plan, titled "VI.D Commercial and Industrial Land Use and Strategies," another guiding principal, labeled VI.D.5, states that mining claims and other areas holding "potential for future discovery and development of commercial mineral deposits" should be identified and mapped. It further states that land use and zoning tools should be used to "preserve the future extraction potential of these areas."
The Flume found several references and strategies throughout the Strategic Master Plan that addressed mining versus residential zoned land, geologic hazards and mineral resources, but none were listed in the staff report.
During patron comments, Woodside Park resident Donna Clark asked the commissioners to change the animal regulations in the Land Use Regulations to allow more than two horses in a residential zone.
Clark said that when she and her husband bought their 5.6-acre Woodside property north of Pine Junction, they had a right to the four horses they own.
With the 2008 change to the LURs, property owners are limited to two horses, she said. She said the part of Woodside that is in Jefferson County has no limit on the number of horses.
According to Clark, the family has moved out of state and potential buyers have declined purchasing the property because the LURs prohibit more than two horses in the residential zone even though the subdivision covenants allow four.
Recently, the Woodside Homeowners Association Units 2 and 4 held a vote on whether to rezone those units to Mountain Residential, which would have allowed four horses per lot. If passed, the HOA would have applied for a rezoning.
Clark said that vote failed, not because the majority was against the proposal, but because the proposal required more than 50 percent of all property owners to vote yes in the election for the proposal to be acted upon. Ten more yes votes were needed to comply with the requirement.
She requested her property be rezoned to Mountain Residential and the application fee waived.
She said she had been told by the commissioners that if the HOA proposal failed, to come back with letters from her neighbors stating they were in favor of the rezoning of her property.
County Attorney Lee Phillips said she would need to file a rezoning application before the property could be considered for rezoning.
building in Fairplay
Two change orders for the new communications building in Fairplay were approved. One was a credit of $1,298 because wiring for cable television was less than expected.
The other change order was for $6,956 to upgrade the Information Technology Department's computer servers. That money will come from the IT Department's 2011 budget, not the construction budget.
In addition, a letter of authorization was signed that allows Xcel Energy to enter the property to connect power to the new communications building.
A purchase order was approved with Just Furniture in the amount of $3,013 to acquire shelving for the IT Department space in the communications building. The expense will come from the 2011 IT Department's budget.
An intergovernmental agreement was signed with Teller County that will allow each county's Coroner's Office to respond with mutual aid as needed.
An agreement with South Park Telephone that would allow the company to install microwave radio equipment on the county's communications towers was postponed. The equipment would be used for high-speed Internet service.
Before the agreement can be approved, the county would need to amend its agreement with the state of Colorado, which also uses the towers. That agreement states that no commercial company will be allowed to co-exist on the communication towers.
An executive session was held to discuss a pending litigation. The subject could not be revealed because the case has not yet been filed, according to Lee Phillips, the county's attorney. He did say the pending litigation is not with the Fairplay Sanitation District.