No action was taken on the Eagle Forest subdivision final plat at the May 14 El Paso Board of County Commissioners meeting and instead the commissioners voted to continue it on May 28.
The subdivision, located in Black Forest, is to have nine single-family lots on a little more than 44 acres with lots ranging from three to five acres, and more than five acres of open space. The initial planned unit development and preliminary plan was approved back in 2005 and a revised one was recently approved by the county planning commission. The developer appeared before the BOCC seeking approval for the final plat.
Residents bordering the development have had many concerns regarding the development and they include the layouts of the lots, the septic systems, asbestos from a building on the property that was built in the 1950s and torn down, possible contamination to Burgess Creek and the possible existence of the Preble's Meadow Jumping Mouse.
Raimere Fitzpatrick, project manager for the development services department, said he explained to residents the review process and when they notify certain agencies. He said it was agreed to apply a 300-foot buffer around mapped waterways. When that buffer hits a property, whether it's through a stream or flood plain, the U.S. Fish and Wildlife Service is notified and the applicant goes through their process to get a clearance letter.
“When you look at this buffer in accordance with our agreement with the U.S. Fish and Wildlife Service the county would not have been required to send them notice for Preble's Meadow Jumping Mouse,” Fitzpatrick said. “Now does that mean because there is a buffer here, does that mean there's Preble's Meadow Jumping Mouse? No.”
Fitzpatrick said the purpose of the buffer is not to say it identifies the mouse, but rather to say that potentially there are characteristics that would support that type of habitat. The chair of the planning commission instructed staff to notify U.S. Fish and Wildlife as a courtesy, and as a recommended condition of approval. He said U.S. Fish and Wildlife sent a letter, and because of the way it was worded, staff agreed prior to issuance of construction permits the applicant would provide something from U.S. Fish and Wildlife. This was more to protect the county based on the wording of the letter.
Commissioner Amy Lathen said she didn't like the condition and she feels that staff has shown that it is not necessary. Lathen said now the commissioners have to decide whether they think U.S. Fish and Wildlife is going to interpret the map differently and require the letter. There was also concern that it could be concluded that the area is in the buffer area, and proceeding without the letter, risked that U.S. Fish and Wildlife saying was it improper or illegal.
“I don't want to put lot owners in that position. You can see a mouse run across your feet and think you're in Preble's Meadow Jumping Mouse (habitat). I don't want to debate the whole philosophy. I don't believe in it, I don't buy it and I don't agree with it and I can't wait for the day we get out from under it and I hope that we'll be fighting for that in every way possible,” Lathen said. “That said, I'm concerned that they are going to come back and say we saw a mouse and you're going to stop construction.”
Lathen said she feels the county is in a game of chicken with regards to the interpretation of the map and they need to make a decision whether or not this condition stays in the record.
Fitzpatrick said U.S. Fish and Wildlife has tested the area before and set traps but has never found the jumping mouse in that area, but had received calls from citizens that said they have seen them. Now U.S. Fish and Wildlife is concerned that they have moved upstream.
Commissioner Daryll Glenn asked the county attorney if they needed to discuss this in executive session to review their legal liability with regards to constructive notice, and the county attorney said that would be her suggestion.
Residents were also concerned that approval was made without the proper planning and regional building department requirements and those requirements were attaching addresses to the final plat drawings, a house that was built on one of the lots and there were concerns about a septic system for the house that remains unfinished. They also want commissioners to require that property owners downstream be notified when any development is built along a creek or river.
The applicant, Dean Mabe, said they followed all county regulations and he had an affidavit stating the demolition was inspected and materials disposed of correctly. He said he hired a licensed Colorado demolition contractor to inspect the area and the contractor found no sign of asbestos.
Both Glenn and Commissioner Chair Dennis Hisey agreed that the downstream notification may be a policy discussion that may be done at another time.
Hisey said the issue with the addresses is any easy fix and a house can be built on a lot according to current state regulations.