Pitkin County hearing officer approves Midnight Mine Ranch replacement, sets conditions on fiber-optic issue

Tom Smith, Pitkin County hearing officer, approved an application from Midnight Mine Ranch LLC to replace a preexisting legal nonconforming single‑family residence within the Castle Creek setbacks and to carry out related site improvements, saying the replacement would not increase the property’s existing nonconformity.

Staff had recommended approval after a site visit and multiple referrals. Tammy Potchen, Pitkin County planner, summarized the proposal as a like‑for‑like replacement within the existing footprints, a reduction in total floor area for the property and a series of infrastructure and landscape improvements. “They are asking to replace the preexisting legal nonconforming structure, the single family residence, which contains 7,989 square feet with a new, single family residence of 5,820 square feet within the exact same footprints,” Potchen said.

The application included an activity envelope and site plan review, a GMQS exemption for replacement floor area, and proposed changes including: raising the new first floor about 1 foot above the base flood elevation (8,238.3 feet as cited in the record); replacing a pedestrian bridge in the same footprint; upgrading the driveway to meet fire and county standards; removing a buried propane tank inside the 50‑foot Castle Creek setback; abandoning an on‑site wastewater treatment system (OWTS) inside the setback and replacing it outside the 100‑foot setback; installing irrigation/fire water tanks beyond the 100‑foot setback; replacing utilities (some to be relocated into Midnight Mine Road); and replacing an accessory structure that currently contains an illegal dwelling unit with an art studio in the same footprint. Potchen told the hearing the proposal would reduce the property’s documented gross floor area from a permitted 10,546 square feet to about 7,352 square feet.

The application was reviewed by referral agencies including the Colorado Geological Survey (CGS), which identified a fluvial (alluvial) hazard area and reviewed an applicant‑provided scour analysis. Potchen said CGS “reviewed that analysis and, agreed with their findings and also provided additional recommendations,” and that staff had incorporated those recommendations into the draft determination.

The applicant’s presentation reiterated code compliance across several land‑use sections (steep slopes, watercourses and drainage, floodplain hazards, scenic protection) and emphasized the reductions in height, footprint and floor area. Mike Kramer of Kramer Land Planning and Chelsea Ray Clark, representing Midnight Mine Ranch LLC, said the plans bring the new house into compliance with the county’s height limit and floodplain requirements. “We are going to reduce that to 5,820 square feet. The height and bulk of the residence is also reduced,” Kramer said.

Objector Jody Edwards, representing Upper Midnight LLC, argued the application did not satisfy all parts of section 9‑50‑20 of the county code and therefore should be denied. Edwards focused on subsection b and on the record evidence, saying the file lacked a finding that the existing structure must be modified to meet life, health and safety standards—an element Edwards called necessary under her reading of the code. “Therefore, it has to be, denied,” Edwards said.

Contractors and members of the applicant team, including Preston Peterson and Briston Peterson of Brycor Associates, said the project would reduce nonconformity and add life‑safety improvements, and they offered construction solutions to protect the nearby fiber‑optic line (for example, encasing the conduit or effluent line in concrete). “We are reducing height. We're reducing square footage. We're, increasing the elevation of the First Floor,” Preston Peterson said.

Hearing officer Smith reviewed competing interpretations of the code, concluded that the replacement provision in section 9‑50‑20(c) governs replacements of legal nonconforming structures, and found the application did not increase the nonconformity. “So I'm approving the application based on that construction and based on the fact that the, technical requirements the code are satisfied,” Smith said on the record. He also said the county code language could be clarified in the future but that, as written, the replacement definition applied to this matter.

Smith revised language in the draft hearing‑officer determination before issuing it. Among his edits he removed a sentence that had referenced section 7‑20‑80 inappropriately, narrowed a citation to 9‑50‑20(c), and added an explicit statement that approval is conditioned on the activity not increasing the existing nonconformity. He also directed changes to the conditions, and specified a maximum floor area for the approval: “This approval is for a maximum floor area of 7,352 square feet,” language the hearing officer said he wanted in the determination.

On the fiber‑optic issue, Smith said the easement and private‑party rights are primarily a matter between property owners, but he added a condition to the determination requiring that the county engineer be satisfied during building permit review that proposed excavation or construction will not threaten the fiber‑optic cable. “The issue of the fiber optic… should be addressed when added building permit or if it's excavation,” Smith said, and directed that the county engineer must be satisfied there is no threatened damage to the fiber optic.

Applicant Heather Hasson, who identified herself as the property owner, told the hearing she sought a home for her family and said she had attempted outreach to the objecting neighbor. “I just want a home for my family, my kids,” Hasson said.

The hearing officer closed the public hearing after no further public comment and issued the approval as amended on the record. The determination includes the staff conditions described in the proposed draft (as modified), the 7,352 square‑foot maximum floor‑area condition, and the county‑engineer review condition related to the fiber‑optic infrastructure. The record contains referrals, CGS comment letters and a county staff report that are listed as attachments to the hearing‑officer determination.

The decision may be subject to appeal under the county’s appeal provisions; the hearing officer noted the applicable appeal deadlines in closing remarks.