What Eagle County can and can’t do about Berlaimont
Purview is limited for controversial project but a water system expansion could trigger a review
EAGLE — As the Berlaimont Estates proposal debate continues, one of the most frequently asked questions related to the proposal is this: How did the subdivision get approval in the first place?
The answer is it didn’t because it didn’t have to. What’s more, Berlaimont isn’t really a subdivision — at least when it comes to the letter of Eagle County’s land-use approval process.
“I think it is difficult for a lot of people to understand that,” said Eagle County Deputy Attorney Beth Oliver. “We have been very careful to try to explain the process and that the board did not approve the project.”
The Berlaimont project proposes 19 35-acre parcels on a 680-acre property located north of Interstate 70 at Edwards that is completely surrounded by U.S. Forest Service land. Because 35-acre parcels are a use by right under state law, Eagle County will not review the land use plan.
“We have a ton of 35-acre projects in Eagle County,” Oliver said. “They look like subdivisions, but they don’t go through the county approval process.”
Instead, the public debate over the Berlaimont plan has been a U.S. Forest Service process. The USFS must approve the alignment and standard of the access road to the site. The draft Environmental Impact Statement from the USFS, which is still accepting comments, calls for a paved, two-lane road design to allow the property owners “reasonable” use of their land.
In response, there has been a public outcry from local residents who believe the Berlaimont proposal isn’t reasonable and would adversely affect wildlife in the area. The USFS process for Berlaimont generated more than 500 comments.
While the county won’t get to weigh in on the Berlaimont land use plan, it has one definite area of influence and one possible review venue.
Back in 2014, Berlaimont received an Eagle County variance for its access road. As the development process proceeds, Berlaimont may be requesting a county 1041 permit.
In its official comment to the USFS, the Eagle County Board of Commissioners emphatically stated that the decision to grant the road variance doesn’t mean the county supports the plan.
“The road variance approved by Eagle County should not be interpreted as approval for this type of land use,” stated the county’s USFS Berlaimont comment. “The variance simply dictates the standards that a road would need to meet if the proponents of Berlaimont were to develop the parcels as proposed.”
Additionally, the county outlined a number of issues for Forest Service consideration including:
- Impacts to recreational experiences for hikers, bikers and others.
- Impacts on local wildlife populations and habitat. The county noted that Forest Service lands surrounding the property are identified as deer and elk winter range and an important migration route for deer where roads have been closed seasonally due to wildlife.
- Impacts on natural resources and the possible impact on the water quality of nearby creeks and streams through runoff and sedimentation.
- Impacts to nearby residential properties from noise, dust, traffic and scenic disturbances.
While the county is consigned to a referral agency role regarding the USFS process, if the developers submit plans to extend water service to the site, it will trigger a 1041 review of the plan.
A 1041 permit process is a comprehensive county review that includes issues ranging from socioeconomic impacts to visual quality to wetlands. The county’s 1041 regulations apply to the designation and regulation of site selection and construction of major new water and sewage treatment systems and major extensions of existing domestic water and sewage treatment systems. The process also regulates the efficient utilization of municipal and industrial water projects. Major new and extensions of these types of treatment facilities are based upon serving a development density of 10 or more residential dwelling units.
“Berlaimont may require a 1041 permit,” Oliver said. “It’s not clear to us what the developer is going to do about water on site.”
Oliver said there was some early discussion from the development team about trucking and storing water for the development.
“We just haven’t talked about it yet,” Oliver said. “We don’t know if that is something they will try to do.”
“I think we are focused on the Forest Sevice decision right now,” Peter Hart, conservation analyst and staff attorney for the Wilderness Workshop, a nonprofit group that is spearheading the Berlaimont protest. “But we are aware that the 1041 process is also an issue.”
Hart said that the logistics of trucking water to the site would be enormous. In addition to regular domestic water needs, wildfire mitigation water needs would be substantial — a 10,000 storage tank for each structure and a 32-million gallon pond have been identified as likely requirements.
“If that is something that they intend to do, I don’t think the Forest Service has considered how much traffic that will require,” said Hart. “That’s a lot of water to be hauling up the mountain in trucks. Frankly, it is just one more indication of how unreasonable this proposal is.”
In terms of area, it’s the county’s smallest conservation deal ever. In terms of location, it’s one of the county’s rarest acquisitions.