VAIL DAILY 3-8-18 Forest Service process with Berlaimont Estates

Mar 8, 2018

Forest Service process with Berlaimont Estates launches public good versus private rights debate

Pam Boyd

original article here: https://www.vaildaily.com/news/forest-service-process-with-berlaimont-estates-launches-public-good-versus-private-rights-debate/

Chris Dillmann | cdillmann@vaildaily.com |

Opponents of the Berlaimont Estates proposal say the land, shown above, is critical wildlife habitat. Access to the site will require road constructio...

 

EAGLE — On one hand, the Berlaimont Estates debate is a broad private property rights versus public good conflict.

On another, it is a narrower question of applying applicable land-use and road standards to a proposed development that meets county regulations.

But there is at least one sure thing about the project discourse — Monday, March 12, is the deadline to weigh in on the topic as part of the U.S. Forest Service's Berlaimont Estates Road Access Project comment period.

Berlaimont Estates is a 680-acre parcel of private property surrounded by U.S. Forest Service lands, located north of Edwards and west of the Berry Creek drainage. Owners Petr Lukes and Jana Sobotova have proposed 19 units and nine accessory units on 35-acre or larger parcels in the area.

This proposed land use is the first salient detail about the Berlaimont plan. Under Colorado law, residential lots that equal or exceed 35 acres in size are exempt from subdivision regulation and such 35-acre residential lots are deemed a use by right in the state. Because the developers have the right to proceed with the plan they have presented, no public hearings about the land use part of the proposal were required.

But the location of the property has launched a public process. Because Berlaimont is an in-holding, the developers must build an access road through U.S. Forest Service land. That road proposal has resulted in the presentation of three route options for a two-lane, paved drive from the valley floor through the Berlaimont property. The road development requires an environmental impact statement from the Forest Service, as well as a formal determination regarding whether the proposed 19-unit residential area is a "reasonable" use.

In its draft environmental impact statement, the Forest Service made the determination that the Berlaimont plan is reasonable. But locals, environmental groups and wildlife advocates dispute that finding.

 

Is this 'reasonable?'

Eagle-Holy Cross District Ranger Aaron Mayville said the Forest Service compiled an extensive study of the Berlaimont proposal.

"That's when we have to deal with words like 'adequate,' 'similar' and 'reasonable,'" Mayville said. "I feel really good about the level of work we have dedicated to this project for the past decade."

As part of that process, White River National Forest Supervisor Scott Fitzwilliams, with the assistance of the agency's general counsel, made the determination that the 19-unit Berlaimont plan was "reasonable." Mayville said the Forest Service study included similarly situated projects in other areas, both in-holdings and developments with accesses that do not impact Forest Service lands. Mayville pointed to Appendix C of the draft environmental impact statement, saying that part of the document provides the details of the analysis.

Peter Hart, staff attorney and conservation analyst for Pitkin County-based Wilderness Workshop, vehemently disagrees with the Berlaimont decision.

"I think the Forest Service reasonable use determination is flawed," Hart said, noting that the proposed development exceeds what is happening in other area forest in-holdings. Those parcels — the Fulford area, for example — are generally served by dirt roads that are often impassible during winter months rather than four-season, paved roads that run through federal lands. Hart questioned if the Forest Service adequately researched the unique characteristics in play at the Berlaimont site — particularly the wildlife impacts tied to the proposal. He believes the factors at play with Berlaimont clearly demonstrate the project is in conflict with the larger public good.

"The Forest Service has an obligation to protect the resource for the public," Hart said.

 

Wildlife impact

At the center of Wilderness Workshop's objection to the Berlaimont proposal are concerns about what the development will mean for the valley's deer and elk population.

"It's a death by 1,000 cuts," Hart said. "This is some of the best habitat we have left in the valley."

Bill Heicher, a retired wildlife manager for Colorado Parks and Wildlife, argued that there are substantial wildlife impacts associated with the proposed development.

To illustrate his point, Heicher said development along the Interstate 70 corridor has resulted in a 60 percent to 70 percent reduction of local critical deer habitat. He said projects such as Berlaimont add to the problem because they both reduce overall habitat and fragment habitat that remains.

Heicher said the wildlife impact from Berlaimont is particularly worrying because it would happen on the north side of I-70. He noted that, to this point, the majority of development in the midvalley has happened south of the interstate. Correspondingly, during the past five years, Heicher said elk numbers south of I-70 have dropped 70 percent. During the same period, he said elk numbers have dropped 25 percent north of I-70.

What's more, Heicher said the White River Forest Plan designates the area around Berlaimont as critical wildlife habitat. He argued that the Forest Service shouldn't bend that definition to favor private property rights.

"I have never seen the Forest Service bend the forest plan for wildlife," Heicher said.

 

Back to the road

The opponents of the Berlaimont plan want to expand the current road alternative debate to be a comprehensive examination of the project. Plan proponents are equally adamant that the discussion isn't about whether or not the development can happen.

"The development on the 680 acres, of 35-acre parcels, is a use by right and it is allowed by state law," said Dominic Mauriello, planner for the Berlaimont developers. "The Forest Service has already opined that the development is reasonable and that there has to be access to the property and it has to be reasonable access."

The Forest Service's access decision is required by the Alaska National Interest Lands Conservation Act. Approved by the U.S. Congress in 1980, the act requires "adequate and feasible" access to private property through federal lands. The reason for the Forest Service's draft environmental impact statement on Berlaimont is to analyze and disclose the environmental effects of providing access to the private property.

Four alternatives were developed and analyzed in the draft environmental impact statement, and specialists identified issues including potential impacts to wildlife, scenery, vegetation, recreation, livestock management and water resources. One of the alternatives, the no action plan, was effectively eliminated with the determination that the proposal was reasonable. Another one of the alternatives has been roundly panned because it would require extensive cut and fill work on the hillside to build a series of switchbacks.

"What is preferred by the Forest Service and preferred by us, by and large follows the basic alignment of what is already there," Mauriello said.

Mayville agreed that the preferred alignment follows an existing dirt road to a point, but noted that it will also require new road construction to the development itself.

"All three of the alternatives have some wildlife impact," Mayville said.

He said the Forest Service has reached out to Colorado Parks and Wildlife for comment regarding the plan, including suggested mitigation measures.

"I don't yet have a good answer of what those mitigations will look like," Mayville said. He noted they could include lower speed limits on the road, speed bumps, flashing signs, wildlife crossing bridges and road barriers. Regardless of what is required, Mayville noted that the developer will be responsible for financing the road construction.

 

Recreation users

Mayville said mountain bikers who use the public lands around the Berlaimont site have been the most vocal about the road proposal.

"Basically what this takes away is the mountain bikers' dirt assent route," he said.

The Forest Service has proposed a new singletrack trail that would originate at Berry Creek Road to access the Endo Alley area as part of the Berlaimont road project, Mayville said.

But Hart argued that the Forest Service has the wrong focus when it comes to the Berlaimont access. He said the overall negative impact of the development, partnered with the impact of having a paved road to the site, warrants scaling back the plan. Hart said if Berlaimont would reduce its density to three units, the existing dirt road would be considered adequate access to the site. As for the issue of private property rights, Hart argued that the Berlaimont property owners knew they were purchasing a Forest Service in-holding when they bought the land. He argued they shouldn't automatically be given the means to add development to the site.

From recreational to environmental concerns, Mayville acknowledged that the Berlaimont plan has been a hot topic for years.

"Its been very clear from the start that this might not be the most popular project the Forest Service has seen in the valley," Mayville said. "I understand that, but at the end of the day, the law compels the Forest Service to do certain things."

One of those things is to collect public comment, and that needs to happen by end of day Monday, March 12.

"We really want to hear from the public. That's not just lip service," Mayville said.

RECENT POSTS


ARCHIVE