Garfield & Hecht Land Use Appellate Lawyers Protect Valuable Floor Area Development Rights 11:39, May 22, 2020

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Garfield & Hecht Land Use Appellate Lawyers Protect Valuable Floor Area Development Rights

The Land Use Codes of both the City of Aspen and Pitkin County limit the amount of developable floor area of a house under the floor area ratio (“FAR”) calculations applicable to lots in different zone districts. Depending on the size and location of a particular lot, the amount of developable floor area available to a lot owner for future development can significantly impact the fair market value of any house built on the owner’s lot. Local real estate valuation experts estimate that the fair market value of a house developed on a particular lot could be increased by $1,000.00 – $2,000.00 for every additional square-foot of floor area available to a lot owner, particularly if the additional floor area allows an owner to develop an additional bedroom or other room as part of the proposed floor plan of a residence. Based on these estimates, an increase in 750 square feet of developable floor area could increase the fair market value of a house developed on a lot by $750,000.00 – $1,500,000.00.

In calculating the amount of floor area available to different lots under the applicable Land Use Codes of either the City of Aspen or Pitkin County, there are different exemptions available to lot owners depending on whether the lot is located in the City of Aspen or unincorporated Pitkin County. For example, the Pitkin County Land Use Code provides that up to 750 square feet of a garage for a single family residence is normally exempt from FAR calculations in determining the total floor area available to a home with a garage. The City of Aspen Land Use Code does not contain an exemption for garages larger than 500 square feet, but contains an exemption which may allow a homeowner to exempt some portion of the square footage of subgrade space when calculating FAR in determining the total floor area available to a home with a basement.

In the case titled Jackson 43 Investments, LLC, A Colorado Limited Liability Company, Plaintiff-Appellee v. The City of Aspen, et al, Defendants-Appellants, Case No. 2017CA1925, Garfield & Hecht represented the owners of three “Estate Lots” in the exclusive Maroon Creek Club Subdivision who purchased the lots for the purpose of developing custom, high end “spec” homes. In 1993, eleven (11) Estate Lots were approved for development by Pitkin County. Pursuant to the original Pitkin County development approvals, the floor area of the Estate Lots were capped at 10,000 sq. ft. and the Estate Lots were not allowed to use the garage exemption normally available under the Pitkin County Land Use Code in calculating the total 10,000 square feet of floor area.

In 1996, however, the Maroon Creek Club Subdivision was annexed into the City of Aspen. As part of that annexation, the City of Aspen rezoned the Maroon Creek Club Subdivision. The rezoning ordinance clarified the development approvals by specifying whether the original Pitkin County Land Use Code approvals, the current City of Aspen or the current Pitkin County Land Use Codes applied after annexation into the City. The rezoning ordinance specifically provided that garages would be exempt when calculating FAR up to a maximum of 750 sq. ft. notwithstanding the language of the original 1993 Pitkin County land use approvals which disallowed such garage exemptions.

As part of the approval process for the “spec” home on Lot 43 of the Maroon Creek Club Estate Lots, the builder-developer’s land use planner submitted a request for clarification to the City of Aspen requesting a formal opinion regarding the applicability of the garage floor exemption to all of the Estate Lots, including Lot 43. The Administrative Determination by the City of Aspen staff stated that the 750 sq. ft. garage exemption did not apply. The Administrative Decision relied on a provision in the Aspen Land Use Code which provides that, when there are conflicting land use regulations, the more restrictive provision applies. Therefore, the Administrative Decision ruled that the more restrictive 1993 Pitkin County original approvals trumped the more recently enacted zoning ordinance. The builder-developer then hired Garfield & Hecht to file a Notice of Appeal seeking review by the City’s Administrative Hearing Officer. After an evidentiary hearing, the City of Aspen Administrative Hearing Officer upheld the staff’s Administrative Determination that the 750 sq. ft. garage exemption did not apply without any reasoned opinion.

Garfield & Hecht then filed an appeal with the Pitkin County District Court under C.R.C.P. 106 asserting that the City of Aspen’s denial of the 750 sq. ft. garage exemption misapplied Colorado law and constituted an abuse of discretion. In the Appeal to the Pitkin County District Court, the City of Aspen raised a new argument that the language of the rezoning ordinance obligated the City of Aspen “to not divest or diminish the land use approvals as awarded by Pitkin County.” According to the City, this language prohibited it from enhancing the 1993 Pitkin County approvals.

In its 20-page order, the District Court for Pitkin County ruled in favor of Garfield & Hecht’s client and held that the denial of the 750 sq. ft. garage exemption was a misapplication of the law and an abuse of discretion by the City of Aspen. The Court held that the City of Aspen violated statutory interpretation principles by ignoring the plain meaning of the annexation re-zoning ordinance. In particular, the Pitkin County District Court held that, while the language in the rezoning ordinance required the City of Aspen to maintain the original approvals, it did not prevent the City of Aspen from allowing future entitlements above the County minimums. The Court reversed the City’s denials and allowed the builder-developer to develop an additional 750 sq. ft. of bedroom space at the spec house on Lot 43.

The City of Aspen then appealed the Pitkin County District Court’s Order. After extensive briefing, the Colorado Court of Appeals affirmed the decision of the District Court Judge and also held that the City of Aspen misapplied the law and abused its discretion in denying Garfield & Hecht’s client the additional 750 sq. ft. of developable floor area which was ultimately used to build an additional bedroom at the spec house on Lot 43.

The City of Aspen did not seek appellate review of the Court of Appeals opinion by the Colorado Supreme Court. As a result, the Court of Appeals opinion is now binding precedent for all eleven (11) of the Estate Lots in the Maroon Creek Club Subdivision allowing all such owners to utilize the 750 sq. ft. garage exemption in connection with any future development, including new builds and remodels. Across all the Estate Lots, this could mean added fair market value in the range of $8,000,000.00 to $16,000,000.00 if the Estate Lot owners take advantage of the additional 750 square feet in development rights. The successful appeals of the City of Aspen’s decisions was handled by land use appellate lawyers David Lenyo and Haley Carmer who regularly represent land owners in challenging detrimental land use decisions by local governments.

For further information on this case or any challenges to any local government adverse land use decisions please contact Dave Lenyo (, 970-925-1936, ext. 206) or Haley Carmer (, 970-925-1936 ext. 815).