A Trailside landowner is suing Summit County to build a 9,300-square-foot barn
County denied request to allow more land disturbance on ridgeline
A Trailside homeowner is suing Summit County for permission to build a 9,300-square-foot barn on a ridgeline overlooking Trailside Park.
The County Council in December denied the landowner’s request for a special exception to disturb more land on the property, and the landowner is appealing the decision to 3rd District Court, arguing that the standard to determine the total disturbance was improperly applied.
The Snyderville Basin Development Code limits the disturbance area for structures that visibly project into the horizon line in an effort to preserve the natural landscape.
The landowner, Michael Bermes, received a special exception in 2015 to exceed that limit to build his home.
Disturbing land means altering its natural state by clearing vegetation, for example, or grading dirt.
Eric Lee, an attorney for the landowner, told the County Council that Bermes had always intended to build a barn on the site, and had indicated that to county planning staffers as early as 2014. Planning staffers dissuaded him, saying he should pursue a separate application process, which has resulted in this lawsuit.
Lee said Bermes was reluctant to go through another approval process, but did so after planning staffers assured him they had no intention of trying to prevent him from building the barn in the future.
County staffers refuted this account in a council meeting, saying that Bermes’ plans weren’t completed in time for the 2015 application.
Now, the county contends the landowner needs a special exception to disturb more land to construct the barn, a process that his attorney says was not required for neighboring landowners.
Lee argued that the county Planning Department had never applied previous land disturbance totals to an application for a new project before this application. If that were the case, Lee argued, any property on which the full disturbance limit was used would need to seek a special exception from the county to renovate or remodel the home, even if the land disturbance from the project were minimal.
Neighbors appear overwhelmingly opposed to the plan in public hearings and in public comment included in a county staff report.
Emails from neighbors included in the staff report claim the 15,000-square-foot home doesn’t fit in with the surroundings and complained about clumsy attempts to mitigate land disturbances and that the landowner has created an unapproved driveway.
The staff report accompanying a public hearing earlier this year says that 43 of the 44 public responses to the plan opposed it.
The lone proponent indicated in his comment to the county that he supported the plan because it would essentially set a precedent that would allow any property owner to build whatever they want.
The property has a mixed history with the county, and with its neighbors.
The code limits disturbances on certain ridgeline lands to 20,000 square feet, but county planners claim in the staff report that the landowner disturbed nearly 150,000 square feet in the process to build the home, a figure the landowner says is greatly exaggerated.
Lee, the landowner’s attorney, acknowledged that the landowner had made mistakes in the past that resulted in enforcement action from the county.
The original special exception allowed Bermes to disturb about 44,000 square feet to build the home, driveway and swimming pool, and to install landscaping.
The landowner moved soil that was excavated for the basement onto a part of the property the Summit County Health Department identified as a site for a future septic system, according to the lawsuit, land that would have to be disturbed anyway.
The county demanded the landowner move the soil, which Lee said in a letter to the county that Bemes did at considerable expense, but the land had already been disturbed, and much of the natural vegetation was lost, according to the county staff report.
The reason to limit disturbances, officials said, is to preserve the natural landscape for the enjoyment of county residents, a tenet enshrined in county code.
Lee said many of the challenges with the property stem from the fact that it is virtually entirely on a ridgeline, setting up inevitable clashes with county requirements. He argued the root cause was the county’s decision to subdivide the land in the first place, which enabled it to be sold and used as a site for a home, and not his client’s decision to purchase the land or exercise his property rights by building on it.
Oral arguments in the lawsuit are set to begin after March 1.
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