Despite vehement opposition by a neighbor and setbacks related to a mistake made a year ago by Pitkin County commissioners, Emily Kloser remains determined to build a cabin on the backside of Aspen Mountain.
“We haven’t lost our enthusiasm,” she said in a recent interview. “We’re going to fight for what we have the right to have up there.”
A nearby property owner, however, said the cabin never should have been approved by commissioners in the first place and last week urged the U.S. Forest Service to deny Kloser the ability to access her mining claim across federal land.
“This, all along, has been a speculative endeavor,” Marcella Larsen, manager of the Larsen Family LP, told The Aspen Times last week. “They’ve been trying to do it on the cheap and narrow. We want to rely on the law and hope others follow it.”
Kloser and her husband, Mike, have been planning to build the cabin on a mining claim near the intersection of Little Annie and Richmond Hill roads for several years. Kloser is the daughter of John Miller, a partner in the investment company that has owned significant acreage on Aspen Mountain’s backside for decades.
After months of consideration, Pitkin County commissioners in May 2018 approved Kloser’s application to build a 1,000-square-foot cabin, a shed, solar panels and a septic system on the 7.7 acre Hercules Lode mining claim. The site lies within the county’s restrictive Rural and Remote Zoning, which only allows up to a 1,000-square-foot structure.
The main issue at the time was that the Klosers didn’t have vehicle access to the property. The Forest Service must approve an easement across its property before that can happen.
Meanwhile, the Larsen Family LP filed a lawsuit against the Klosers in June 2018, alleging, among other things, that county commissioners violated the state Open Meetings Law when they visited the Kloser cabin site in May 2018.
It turned out the Larsen Family was right.
Commissioners did violate the Open Meetings Law at the time because the notice for the Kloser site visit did not list a time, Ry Neiley, assistant Pitkin County attorney, said Thursday.
That admission led commissioners to rescind the approval for the Kloser cabin in July.
And while the Klosers, who live in Vail, have not resubmitted their application, they plan to do so, perhaps as early as this summer, Emily Kloser said.
“We have the right to build,” she said. “We are not trying to build an atrocity at all. Mike and I are mountain people. We have a lot of respect. I’ve been a part of Aspen my entire life.”
Instead of immediately refiling their development application, however, the Klosers are waiting for the Forest Service to approve or deny their driveway easement.
On June 3, the Larsen Family LP filed six pages of objections with the Forest Service urging federal officials to deny the easement. In those comments, a Larsen Family attorney alleges that commissioners engaged in “ex parte communications with the (Board of County Commissioners)” during the site visit.
The same allegation was made in the Larsen Family lawsuit against the Klosers.
Neiley said Thursday that commissioners never engaged in ex parte communications during the site visit. Commissioner Patti Clapper also denied in July that ex parte communications between commissioners and the Klosers ever took place at the time.
Clapper, in fact, said Larsen engaged in ex parte communication with Commissioner Greg Poschman, which led him to recuse himself from consideration of the Kloser application.
The Larsen Family LP, however, told the Forest Service last week that the alleged ex parte communications make it unlikely for the board to be able to approve a future Kloser application, according to the online comments.
“To our knowledge, no new application for a residence is pending, and given the improprieties surrounding the county approvals, it is doubtful the BOCC — at least as currently composed — could approve any application concerning the Hercules Lode,” the Larsen Family’s attorney wrote in the June 3 Forest Service comments.
Neiley took issue with that statement Thursday.
“That’s just not true,” he said. “I think they’d actually be obligated to review that application.”
Commissioners unanimously approved the application more than a year ago, saying that the Klosers had a right under the land-use code to build the cabin.
“Really this is an issue of private property rights,” Commissioner George Newman said at the time. “Frankly, the whole issue (is) one neighbor really objected to having another neighbor near them. Nothing in the code says you won’t have a neighbor.”
Other commissioners said they could find no reason to deny the Kloser application and that it was consistent with the land-use code and area zoning.
Kloser said she grew up going to the backside of Aspen Mountain and isn’t giving up on her dream of a cabin in the area.
“We just have a great deal of love for the back (of Aspen Mountain),” she said. “It’s hard to break your spirit when it’s something you really want.”
The Larsen Family, which objected to the Kloser cabin because of the lack of driveway, intrusion on view planes and alleged property devaluation, retained the right to raise all other development issues in their original lawsuit except the open meeting violation.
It is not clear when the Forest Service might rule on the Kloser’s easement application.