When the proposed relocation of the Canyons Resort ski maintenance building was denied last month, one of the reasons the county shot the site plan down was because a rock retaining wall as high as 18 feet was to be right on the boundary of a wetland. The controversy surrounds the fact that the retaining wall is a "structure" and thus had to be at least 40 feet from the wetland. Developers challenged that definition of "structure."
As per the Snyderville Basin Development Code, a "structure" is defined as:
That which is built or constructed, a building or edifice of any kind, installed on, above or below the surface of land or water.
Shawn Ferrin, external legal counsel for TCFC PropCo, the developer proposing the maintenance building, presented the case for why the retaining wall should not have been considered a "structure." Ferrin was joined by TCFC VP of Development Spencer White. Defending the interpretation of a structure were Community Development Director Pat Putt and Douglas Clyde, a witness of Putt's.
"Putt is interpreting the [Development Code] language very broadly," Ferrin said. "He interprets it to mean 'anything that is built or constructed.' TCFC believes 'an edifice or building of any kind' is the important part of the ordinance."
Ferrin added TCFC cannot be treated "arbitrarily" by the county and have to conform to a different interpretation of "structure" than that which has been historically applied. He pointed to numerous examples around Summit County where "structures" are within wetland setbacks, such as a home under construction on Old Ranch Road which is less than 40 feet from a stream.
Clyde responded by asserting that "structures" and "buildings" are not the same thing and that TCFC wants to define structures as buildings only.
"If you can't define the difference between a structure and a building, you can't do your job," Clyde said. "For flood control and watershed management, you have an interest in determining whether this is a structure."
Summit County Civil Attorney Dave Thomas said Putt can go against how the definition of "structure" has been historically applied, but if he wishes to clarify that the requested retaining wall is a structure he must do so without "animus" toward the developer and must apply that interpretation consistently in all instances thereafter.
County Council member Roger Armstrong said no one knows whether the examples of "structures" currently existing within wetland setbacks were properly permitted, and that such examples would not give sufficient reason for allowing the retaining wall next to a wetland.
Near the end of what was more than a two-hour deliberation on the interpretation of a "structure," Ferrin requested that Clyde's comments be removed from the public record since he testified in opposition to the Canyons Resort maintenance building last month and was thus biased and a "public clamor."
Thomas maintained public clamor only applies to those who simply "don't like a project" and that since Clyde provided a fact-based presentation, that assertion did not apply. Potential bias against the developer, he said, could be construed, although the Council would need to determine that.
In the end, the Council voted 5-0 to deny TCFC's appeal of the definition of "structure." Ferrin believed TCFC was treated differently with this project.
"Putt's application [of the definition of "structure"] is very inconsistent with how development approvals have been granted in the past," Ferrin said. "We can't have the definition of "structure" where it means retaining wall, and another where it means something else. It has to be consistent."