Plan Review Process
SECTION 7 THE DESIGN REVIEW PROCESS
Plan submission requirements shall be listed in the Sketch/Final Plan Checklist provided at the Planning Meeting. The yearly DRB Meeting Calendar shall provide the regularly scheduled DRB meeting dates, and the corresponding submission and noticing deadlines.
7.1 Application Process.
The Applicant shall follow this Application Process to make an Application for Improvements for Sketch Plan, Final Plan, and Certificate of Approval Major Amendment. A Certificate of Approval Minor Amendment shall not follow this process. See Section 7.5 Certificate of Approval Minor Amendment.
7.1.1 Applicant. The Applicant shall be the Owner of the Lot upon which Improvements are proposed, or a Contract Purchaser of such Lot. A Contract Purchaser shall not commence construction approved by the Certificate of Approval until after they have taken title to and possession of the Lot.
7.1.2 Planning Meeting. To begin the DRB review process the Applicant shall contact the HOC to schedule the Planning Meeting among the Applicant, the design team, and the HOC. At the Planning Meeting, the HOC will learn about the Concept Plan for the Improvements and orient the Applicant’s team to the Design Regulations, review process, and submittal requirements. The Sketch/Final Plan Checklist will be provided at the Planning Meeting. Applicant shall have a Concept Plan prepared for the meeting.
Within one (1) year from the Planning Meeting date, and at least forty (40) days prior to the scheduled DRB meeting, the Applicant shall submit a Sketch Plan to the HOC. If the Planning Meeting expires, the Applicant shall attend another Planning Meeting. The HOC may extend the validity of the Planning Meeting beyond one (1) year.
7.1.3 Sketch Plan Application Submittal. The Applicant shall submit the Sketch Plan Application to the HOC, who shall circulate materials to the DRB members. No materials, information, documents, or communications shall be directed to the DRB, either by the Applicant or any other party.
The Sketch Plan shall address the project design and shall include the required submittal materials (see Sketch/Final Plan Checklist). Within a reasonable time of receiving an Application, generally within ten (10) days, the HOC shall conduct an Application completeness review. If the HOC determines the Application to be deficient, Applicant shall be notified of the deficiencies, and the Applicant shall revise its Application accordingly.
When the Application is deemed complete, the HOC shall direct the Applicant to mail Pending Application Notices to adjacent property owners, and the Application shall be agendized for DRB review. The HOC will provide the Applicant with noticing instructions and documents.
The HOC shall conduct an Application compliance review and prepare recommendations for the DRB. The Applicant may be required to submit additional materials to bring the Application into compliance with the DRB Regulations and the Checklist requirements.
Materials sent by an Applicant after an Application is deemed compliant might not be considered by the DRB due to time constraints.
7.1.4 Sketch Plan Site Walk.
Site Visual Aid/Staking Requirements & Documentation
· The story pole and staking plan shall be provided to the HOC for review prior to installing the following site visual aids and staking.
· Story poles with ropes and flagging demonstrating the main ridge height and highest point on each structure shall be erected seven (7) days prior to the Site Walk.
· Locate the center of the Building Site as verified by a surveyor
· Driveway centerline stationing main road where driveway leaves the road and up to house
· Drainage and culvert schematic
· Cut limits and retaining walls
· Proposed address monument location
· Locations of the corners of the Residence or major Improvement
· Where applicable, when a designated building site is proposed for relocation, the location of the designated and proposed building sites
· All plants proposed for transplanting marked using blue flags and their respective locations for transplanting staked
· Any trees to be removed are to be marked with red flagging
· Other depictions and designations directed by the HOC Manager
· Surveyors shall survey the locations of the HOC approved story pole and staking plan prior to placing the story poles and staking.
The DRB shall review, approve, approve with conditions, or deny the Sketch Plan. Approval of the Sketch Plan shall be valid for one (1) year. Applicants may request a one-year Sketch Plan extension with the HOC.
7.1.5 Final Plan Submittal. Within one (1) year from the Sketch Plan Approval or Sketch Plan Approval extension date, and at least forty (40) days prior to the scheduled DRB meeting, the Applicant shall submit for Final Plan Review. If the Final Plan is not submitted within one (1) year, the Applicant may request a Final Plan extension.
The Final Plan shall address the final project design and shall include the required submittal materials (see Sketch/Final Plan Checklist). Thirty (30) day noticing to adjacent property owners (APO’s) is required.
The Final Plan approval is confirmed by the Certificate of Approval, signed by the HOC Director of Operations and Applicant.
7.1.6 Permit Set Submittal. Within two (2) years from the Certificate of Approval record date the Applicant shall submit for Staff Permit Set Approval. The HOC may extend the time beyond two (2) years upon request of the Applicant.
Applicant must fund all required escrows and building fees prior to HOC stamping Permit Set.
Once the HOC has approved and stamped the Permit Set the Applicant shall submit the approved Permit Set to San Miguel County. The Permit Set shall meet all the conditions of the Certificate of Approval.
7.2 Required Submittals, Inspections, and Approvals.
7.2.1 San Miguel County Building Permit. A copy shall be provided to the HOC upon issuance by the County.
7.2.2 Construction Process Submittals and Approvals. The following shall be completed during the construction process following the appropriate building phase:
A. Foundation, Stem Walls & Pad Survey
B. A survey performed and certified by a Colorado licensed surveyor to confirm that the poured and cured foundation, stem walls, and pad comply with the Certificate of Approval and approved Design Plan.
C. HOC Framing Inspection
D. Height Survey - Tops of Parapets and Roof Structures
a. Independent survey conducted and certified by a Colorado licensed surveyor showing United States Geological Survey (USGS) elevations on all roof ridges for gable, shed and similar forms, chimneys and other similar architectural elements, and the top of parapet walls on flat roof forms, confirming that all tops of parapets and roof structures (including chimneys) comply with the height, elevations and locations provided in the Certificate of Approval.
E. Utility As-Builts Documentation
F. Improvements Location Certificate (ILC)
G. Drawing of a parcel of real property prepared and certified by a Colorado licensed surveyor showing the location the Building Site Boundary (BSB), improvements and easements within, upon, along, over, under, and across the property and includes encroachments onto the property by Improvements associated with the use of adjoining properties.
H. HOC Temporary Certificate of Occupancy
I. HOC Final Inspection
J. HOC Certificate of Compliance
K. San Miguel County Certificate of Occupancy
7.3 Procedural Rules.
7.3.1 The DRB shall act upon an Application only in the context of a duly noticed, public meeting open to all Owners and their appointed representatives, who shall have an opportunity to present testimony and evidence in support or opposition to the Application under review.
7.3.2 The failure by the DRB to act upon an Application in any particular time frame shall not allow the Applicant to claim a so-called default approval.
7.3.3 The DRB may make recommendations when, in its opinion, a design could benefit from a slight alteration or addition, even when the design is in full compliance with these Design Regulations. Such recommendations shall be differentiated from stipulated conditions that are required to comply with these Design Regulations. The Applicant may decide to adopt or ignore any stated DRB recommendations.
7.3.4 Continuance of an Application. An Application may be continued if requested by the Applicant or the DRB. A continuance shall be to a date/time certain meeting and shall not require an additional Pending Application Notice.
7.3.5 The DRB shall apply Roberts Rules of Order to supplement procedural rules that are not otherwise provided for in these Design Regulations.
7.3.6 The DRB Application review process shall adhere to the following steps. The DRB Chair may establish, impose, and regulate the time for each speaker in a uniform manner.
· The DRB calls and opens the review of the Application.
· The HOC Planning Consultant reviews the Application for compliance.
· The DRB may pose questions to the HOC Planning Consultant or Staff.
· The Applicant presents the Application.
· The DRB, Planning Consultant, or Staff may pose questions to the Applicant.
· The DRB Chair may recognize other interested parties to speak about the Application.
· The DRB may pose questions to the interested parties.
· The Applicant may respond to comments raised by interested parties.
· The HOC Planning Consultant or Staff may comment on issues raised during the meeting.
· The DRB closes record, (no more testimony from Applicant or other parties).
· The DRB may seek guidance/direction from the HOC Planning Consultant or Staff.
· DRB shall make a motion for the Application which may be as follows: approve, approve with conditions, continue to a date/time certain meeting, or deny.
7.4 Noticing and Hearing Requirements.
The Noticing and Hearing Requirements shall apply to Sketch Plan, Final Plan, and Certificate of Approval Major Amendment. When the Application is deemed complete the HOC shall direct the Applicant to mail Pending Application Notices, and the Application shall be agendized for DRB review. The DRB shall review Applications at the day, time and location stated in the Pending Application Notice.
A Certificate of Approval Minor Amendment shall not follow this process. See Section 7.5 Certificate of Approval Minor Amendment.
7.4.1 Noticed Owners.
A. The Applicant shall mail Notices to the following Owners for the following types of Applications:
· Sketch Plan Application: Noticed Owners
· Final Plan Application: Noticed Owners
· Building Site Enlargement: Adjacent Property Owners
· Building Site Relocation: Adjacent Property Owners
· Building Height Increase for a Height Restricted Lot: Adjacent Lot Owners
· Major Amendment: Noticed Owners
· Minor Amendment: no notice required
Any Owner who is not a Noticed Owner or an Adjacent Property Owner may send a written request to the HOC that they be provided a copy of any Pending Application Notice of a particular Application. This Owner shall only be noticed as a courtesy and shall not thereby become a Noticed Owner.
7.4.2 Affidavit of Mailing of Notice (Affidavit). The Affidavit documents shall be prepared by the HOC and completed/verified by the Applicant. The Affidavit shall be returned to the HOC within three (3) days of mailing the Notices. The documents include:
1. Affidavit of Mailing of Notice.
2. Exhibit A: Map of Noticed Lots. The map shall be generated by the HOC from the San Miguel County Mapping Website.
3. Exhibit B: Noticed Owner Mailing Addresses. The mailing addresses shall be obtained from the San Miguel County Website.
4. Pending Application Notice. A letter from the HOC stating the Applicant, type of Application, and the date, time, and location of the DRB review meeting.
7.4.3 Pending Application Notice (Notice). The Notice shall be prepared by the HOC and all information shall be verified by the Applicant. The documents include:
1. Pending Application Notice
2. Map of Noticed Lots
7.4.4 The Notice shall be mailed by the Applicant not less than thirty (30) days before the Application’s scheduled DRB review meeting. No exception to this deadline shall be allowed.
7.4.5 The Notices shall be sent to the mailing address of the Noticed Owners or Adjacent Property Owners via Certified USPS Mail, return receipt the HOC.
7.4.6 Within three (3) days of mailing, the Applicant shall provide the HOC with copies of the completed Certified Mail receipts.
7.4.7 The HOC shall post the Notice on the Website and may send a courtesy email to the Noticed Owners.
7.4.8 Any Owner or their representative may provide written comments and/or material to the HOC at least seven (7) days prior to the scheduled DRB review meeting. The HOC shall give written comments/material to the DRB. Materials received in less time might not be considered by the DRB due to time constraints. All written comments/materials shall be posted on the Website project page.
7.5 Certificate of Approval Amendment.
7.5.1 If an Applicant seeks to modify any portion of a Certificate of Approval, a Certificate of Approval Amendment Application shall be submitted.
7.5.2 Major Amendments shall follow the Final Plan Review process.
7.5.3 Minor Amendments shall comply with the following process:
A. The Applicant shall communicate with HOC about the desired changes. The HOC shall determine if a Planning Meeting is required.
B. The Applicant shall submit material as directed by the HOC. Proposed changes shall be clearly marked/clouded on the Certificate of Approval, or site plan.
C. When the HOC determines the Application is complete, the HOC shall send the Application for DRB Chair Action. The DRB Chair has the right to defer the minor amendment Application review to the full DRB for review and approval. If the DRB Chair recuses for conflict of interest, the Application will be submitted to the full DRB for review.
D. If the DRB Chair approves the application, it will be agendized for the full DRB to ratify the Chair’s action at the next available DRB meeting. The DRB may add conditions or require design changes as a part of its ratification. The Applicant may proceed with the changes after the DRB Chair approval.
E. If the Chair denies the Minor Amendment, the Application will be referred to the full DRB for review and action. The DRB may require the Application to be reviewed as a Major Plan Amendment, approve the Amendment, approve with conditions, or deny the Amendment.
7.6 Review of Request for a Building Height Increase for a Height Limitation Lot (BHI).
7.6.1 The Building Height Covenant provides as follows:
Nothing to the contrary withstanding contained in the Design Regulations for the Aldasoro Ranch, no improvements of any nature may be constructed on any Height Limitation Lot which exceeds an absolute height of 25’ above the natural and undisturbed grade of the corresponding point on the ground located directly below each point on the Improvement.
In extremely extraordinary circumstances that would impose a substantial hardship on the applicant, the DRB, in its sole discretion, may grant limited exception to this covenant; however, the DRB shall exercise its discretion cautiously.
Consistent with the Building Height Covenant, the DRB may consider an Applicant’s request to increase the Absolute Height Limit for a Dwelling Unit on a Height Limitation Lot. A BHI shall not be requested for an Accessory Structure.
7.6.2 DRB approval of a BHI shall be contingent on the Applicant developing only the Improvements reflected in the BHI Concept Plan.
7.6.3 Construction shall commence within the time frame for implementing Improvements. If construction has not commenced within the time frame, the approval of the BHI shall become null and void.
7.6.4 BHI Process. The following procedural steps shall apply to a BHI Application:
A. The Owner or Contract Purchaser shall schedule a Planning Meeting with the HOC to specifically address the BHI. The Owner or Contract Purchaser shall attend this meeting. The BHI Checklist shall be provided at the meeting explaining the submittal and Site Walk requirements.
B. The HOC shall inform all Adjacent Property Owners (APO) and DRB.
C. The HOC shall host a BHI Site Walk and presentation by the Applicant to the APO and DRB. The Owner or Contract Purchaser shall attend this meeting.
Site Visual Aid/Staking Requirements &
· The story pole and staking plan shall be provided to the HOC for review prior to installing the following site visual aids and staking.
· Story poles with ropes and flagging demonstrating the main ridge height and highest point on each structure shall be erected seven (7) days prior to the Site Walk.
· Locate the center of the Building Site as verified by a surveyor
· Driveway centerline stationing main road where driveway leaves the road and up to house
· Drainage and culvert schematic
· Cut limits and retaining walls
· Proposed address monument location
· Locations of the corners of the Residence or major Improvement
· Where applicable, when a designated building site is proposed for relocation, the location of the designated and proposed building sites
· All plants proposed for transplanting marked using blue flags and their respective locations for transplanting staked
· Any trees to be removed are to be marked with red flagging
· Other depictions and designations directed by the HOC Manager
· Surveyors shall survey the locations of the HOC approved story pole and staking plan prior to placing the story poles and staking.
D. The APO shall submit the Accepted Request or Opposed Request Form to HOC within seven (7) days of the presentation.
E. Accepted Request. If all APOs submit an Accepted Request to the BHI the Application shall be agendized for DRB review at the next regularly scheduled monthly meeting. The DRB may grant the BHI.
F. Opposed Request. If one or more APOs submits an Opposed Request, the Application will not be agendized for DRB review unless an arbitrator, following the Building Site Arbitration Rules and Procedures, issues an award determining that the requested BHI is necessary for the development of the Lot due to unanticipated and extraordinary conditions. (See 7.7.8 Building Site Arbitration Rules and Procedures for BSE/BSR/BHI.)
G. No Response From APO. If an Adjacent Property Owner (APO) does not submit comments or a response after two (2) notices from the HOC requesting feedback on a BSE/R application, the APO shall be deemed to have no objection to the application for purposes of the current review. Such non-response may be treated as an Accepted Request and the Design Review Board (DRB) may proceed with its review and decision. However, an APO's failure to respond shall not preclude the APO from attending any subsequent DRB meeting, providing comments, or raising concerns regarding the application prior to final DRB action.
H. Building Height Covenant Amendment. If the BHI is approved by the DRB, the HOC shall prepare a revised Building Height Covenant reflecting the BHI which shall be executed by the HOC and the Applicant and recorded with San Miguel County immediately after the San Miguel County Building Permit has been acquired.
7.6.5 DRB Review Criteria and Standards for BHI. The DRB shall consider the following when reviewing a BHI Application:
A. Prior modifications and changes to the heights and BSBs on the subject Lot and Adjacent Lots.
B. The resulting impacts of the BHI on increased visibility, noise, and similar influences. The DRB may require the Applicant to make modifications to the mass/scale/height or placement of the proposed Improvements, add berms/landscaping, and other factors to reduce impacts.
C. The following conditions by themselves, shall not be considered unanticipated and extraordinary conditions such that a BHI is necessary
1. Increased costs to develop the Lot; or
2. Site conditions that were known by the Owner requesting the BHI at the time the Owner acquired the Lot and/or would have been known by person exercising ordinary care, when acquiring the Lot.
7.7 Review of Request for a Building Site Enlargement (BSE) or a Building Site Relocation (BSR).
7.7.1 The Building Site Boundary Covenant provides as follows:
“The Community wishes to preserve and enhance the views, privacy, visual impact, and values on the Lots located in The Aldasoro Ranch and mitigate the impacts on wildlife by restricting the location of Improvements on each Lot.
Improvements, including but not limited to excavations, buildings, decks, patios, roof overhangs, play areas, swimming pools, tennis courts, and enclosed parking areas may not be located or constructed on the Lot outside of the corresponding Building Site Boundary.
The DRB, in its sole discretion, may grant a limited exception to this covenant allowing driveways, underground utilities, limited surface parking and landscaping outside of the Building Site Boundary. The DRB shall exercise its discretion cautiously in granting such limited exceptions.”
Consistent with the Building Site Boundary Covenant, the DRB may consider an Applicant’s request to either enlarge a Building Site Boundary (Building Site Enlargement / BSE) or relocate a Building Site (Building Site Relocation / BSR).
Given the foregoing covenant, and because the Community was designed in such a manner that driveways and utilities connect at a street, it is expressly permitted for a driveway and utilities to be constructed in part outside the Building Site Boundary (BSB) on a Lot. No Limited Design Exception, Building Site Relocation, or Building Site Enlargement shall be necessary or required for the sole purpose of accommodating a driveway or utilities connecting a structure to a street.
7.7.2 Any request for BSE/R regarding the following will require extra scrutiny: (A) a relocation which would encroach upon San Miguel County's 100' Wetland Buffer Zone as identified as Lots 15, 23, 28, 48, 50, 51, and 52 in Filing 1, Lots 85, 86, 91 and 99 in Filing 2, and Lot 45 in Filing 3; (B) Lots which have been, designated in the Aldasoro Ranch PUD Agreement in paragraphs 11.1.7 and 11.2 by the Colorado Department of Wildlife (CDOW), and which may encroach on wildlife habitat patterns, would require approval from CDOW and San Miguel County, those being Lots 30, 31, 35, 36 and 37 in Filing 1, Lots 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 161, 162, 163 and 164 in Filing 2 and Lots 108, 109, 110, 111, 112 and 113 in Filing 3.
A. The designated BSB on a designated Border/Wildlife Habitat Lots may not be moved in a northerly direction without the approval the Colorado Division of Wildlife.(PUD Agreement 11.1.7.1)
B. The designated BSB on a designated Wetlands Buffer Lots shall not be moved without the approval of San Miguel County.
7.7.3 DRB approval of a BSE/R shall be contingent on the Applicant developing the Improvements reflected in the BSE/R Concept Plan, Sketch Plan, or Final Plan.
7.7.4 Building Site Enlargement Area. The BSE shall not increase the BSB by more than 5% of the area contained in a Lot’s originally platted BSB.
A. Height Limitation Lots (75’ BSB radius) may enlarge the BSB area by 884 sf.
B. Non-Height Limitation Lots (60’ BSB radius) may enlarge the BSB area by 566 sf.
C. Cumulative BSEs may not exceed 5% of the originally platted Building Site Boundary area.
7.7.5 BSE/R Process. The following procedural steps shall apply to a BSE/R Application:
A. The Applicant shall schedule a Planning Meeting with the HOC to specifically address the BSE/R. The Owner or Contract Purchaser shall attend this meeting. The BSE/R Checklist shall be provided at the meeting explaining the submittal and Site Walk requirements.
B. The HOC shall host a BSE/R Site Walk presentation by the Applicant. The HOC shall invite the Design Review Board (DRB) and Adjacent Property Owners (APO). The Owner or Contract Purchaser shall attend this meeting.
C. Story poles and staking shall be completed as follows:
· The story pole and staking plan shall be provided to the HOC for review prior to installing the following site visual aids and staking.
· Story poles with ropes and flagging demonstrating the main ridge height and highest point on each structure shall be erected seven (7) days prior to the Site Walk.
· Locate the center of the Building Site as verified by a surveyor
· Driveway centerline stationing main road where driveway leaves the road and up to house
· Drainage and culvert schematic
· Cut limits and retaining walls
· Proposed address monument location
· Locations of the corners of the Residence or major Improvement
· Where applicable, when a designated building site is proposed for relocation, the location of the designated and proposed building sites
· All plants proposed for transplanting marked using blue flags and their respective locations for transplanting staked
· Any trees to be removed are to be marked with red flagging
· Other depictions and designations directed by the HOC Manager
· Surveyors shall survey the locations of the HOC approved story pole and staking plan prior to placing the story poles and staking.
D. Following the site walk, the APO shall submit the Accepted Request or Opposed Request Form to HOC within seven (7) days of the presentation.
E. Accepted Request. If all APOs submit an Accepted Request the BSE/R Application shall be agendized for DRB review at the next regularly scheduled monthly meeting, and the DRB shall act upon on the BSE/R.
F. Opposed Request. If one or more APOs submits an Opposed Request, the Application will not be agendized for DRB review unless an arbitrator, following the Building Site Arbitration Rules and Procedures, issues an award determining that the requested BSE/R is necessary for the development of the Lot due to unanticipated and extraordinary conditions. See 7.7.8 Building Site Arbitration Rules and Procedures for BSE/BSR/BHI.
G. No Response From APO. If an Adjacent Property Owner (APO) does not submit comments or a response after two (2) notices from the HOC requesting feedback on a BSE/R application, the APO shall be deemed to have no objection to the application for purposes of the current review. Such non-response may be treated as an Accepted Request and the Design Review Board (DRB) may proceed with its review and decision. However, an APO's failure to respond shall not preclude the APO from attending any subsequent DRB meeting, providing comments, or raising concerns regarding the application prior to final DRB action.
H. Building Site Boundary Covenant Amendment. If the BSE/R is approved by the DRB, the HOC shall prepare a revised Building Site Boundary Covenant (Building Site Boundary Covenant Amendment) reflecting the BSE/R which shall be executed by the HOC and the Applicant and recorded with San Miguel County immediately after the San Miguel County Building Permit has been acquired.
7.7.6 DRB Review Criteria and Standards for BSE/R
A. A BSE/R Application on Wetland Buffer Lots or Border/Wildlife Habitat Lots will require extra scrutiny.
B. The DRB shall consider the following when reviewing a BSR/E Application:
1. The resulting impacts of the BSE/R on increased visibility, noise, and similar influences. The DRB may require the Applicant to make modifications to the mass/scale/height or placement of the proposed Improvements, add berms/landscaping, and other factors to reduce impacts.
2. Prior modifications to BSBs and heights on the subject Lot and Adjacent Lots.
C. The following conditions by themselves, shall not be considered unanticipated and extraordinary conditions such that a BSE/R is necessary;
1. Increased costs to develop the Lot; or
2. Site conditions that were known by the Owner requesting the BSE/R at the time the Owner acquired the Lot and/or would have been known by a person exercising ordinary care, when acquiring the Lot.
7.7.7 Building Site Arbitration Rules and Procedures for BSE/BSR/BHI
The HOC and each of the Owners acknowledge that disputes concerning requests for BSE/BSR/BHIs can be costly, time consuming, and disruptive to the Community. The Building Site Arbitration Process is designed to provide a fast, simple, efficient, and inexpensive process for Owners to resolve disputes over requests for BSE/BSR/BHIs.
These rules and procedures are subject to the Colorado Common Interest Ownership Act and shall govern the Building Site Arbitration Process as administered by Construction Dispute Resolution Services, LLC (CDRS). They shall take precedence over any other set of arbitration rules and procedures.
A. Initiation of Building Site Arbitration. An Owner initiates the “Building Site Arbitration Process” by submitting a written Request for Building Site Arbitration to the HOC together with the filing fee and simultaneously providing notice, via certified mail return receipt requested, to all Adjacent Property Owners. The filing fee shall include the initial arbitration fee set by CDRS together with a sum of money that the DRB may, from time-to-time, determine is proper. An Owner initiating the Building Site Arbitration Process shall be called the “Claimant” for purposes of the Building Site Arbitration. The Adjacent Property Owner(s) who file a written Response within the period specified below opposing the BSE/BSR/BHI shall be called the “Respondent(s)” for purposes of these arbitration rules. The Claimant and the Respondent(s) shall be called the Parties.
B. DRB’s Written Assessment/Participation. No later than fourteen (14) days after the DRB has received the Request for Building Site Arbitration from the Claimant, the DRB shall prepare a written assessment of the requested BSE/BSR/BHI. No later than seven (7) days after receiving the responses of the parties, the DRB shall transmit to CDRS the Request for Building Site Arbitration, the Responses, the DRB’s Written Assessment and the initial arbitration fee. At the request of either Party or the arbitrator, the DRB may participate in the Building Site Arbitration, including any site visit and the hearing, as an interested third-party and provide testimony and/or other evidence. The written assessment and evidence provided by the DRB shall not be binding on the arbitrator and shall be given whatever weight the arbitrator, in his/her sole discretion, deems appropriate.
C. Fees and Costs of the Building Site Arbitration. The Claimant shall be solely responsible for all fees and costs charged by CDRS for the Building Site Arbitration. Should the arbitrator expend additional time in excess of the initial arbitration fees collected, the Claimant shall be responsible to pay those additional fees to CDRS prior to the issuance of the arbitration award. The Parties shall be responsible for their own attorney fees, expert fees as well as discovery, travel and other related costs incurred in connection with the Building Site Arbitration. Notwithstanding the forgoing, if the arbitrator determines that the Claimant or Respondent(s) have acted in bad faith in requesting or opposing a BSE/BSR/BHI, the arbitrator may, in his/her sole discretion, award reasonable fees and costs to the other Party(s).
D. Scope of the Building Site Arbitration. The scope of the Building Site Arbitration process shall be limited to determining whether the requested BSE/BSR/BHI is required due to unanticipated extraordinary circumstances and determining bad faith and awarding fees and costs as set forth above. For the avoidance of doubt, except for fees and costs, the arbitrator shall not have the authority to award any Party to the Building Site Arbitration any damages of any kind whatsoever.
E. Selection of the Arbitrator. A single arbitrator shall conduct the Building Site Arbitration and issue the Arbitration Award. As soon as practicable, the CDRS Senior Case Administrator shall assign the arbitrator to the matter. The CDRS Senior Case Administrator will consider the construction-related or legal expertise of the arbitrator required to handle the Building Site Arbitration, the location of the arbitrator and the fees of the arbitrator in selecting the arbitrator to handle the dispute. Neither the Claimants, the Respondents, nor the DRB or any of their representatives or attorneys shall participate in the selection of the arbitrator although CDRS will try to accommodate a specific request for an arbitrator if that arbitrator is mutually agreed to by the parties prior to the DRB filing the request for arbitration with CDRS.
F. Date and Location of Arbitration Hearing. The Building Site Arbitration hearing shall be scheduled no later than thirty (30) days after CDRS has assigned the arbitrator to the matter, unless the arbitrator determines that additional time is required for good cause. The Building Site Arbitration hearing shall take place by conference call or video teleconference unless the Claimant, the Respondent[s] and the arbitrator mutually agree to hold the Building Site Arbitration hearing in person in Telluride.
G. Discovery. Discovery for the Building Site Arbitration shall be limited to the mutual exchange of documents among the Parties as follows: No later than fifteen (15) days before the hearing, the Claimant and the Respondents shall transmit electronically to each Party all documents that: 1) the Claimant or Respondent intends to use at the hearing: and/or 2) comprise reports or analysis of the building site conditions or the proposed BSE/BSR/BHI. No later than seven (7) days before the hearing, the Claimant and Respondents shall transmit electronically to CDRS any documents they may use at the hearing. No hard copies shall be submitted to CDRS. Unless the Claimant, the Respondents and the arbitrator agree, no interrogatories, requests for admissions, depositions, or third-party subpoenas shall be permitted for the Building Site Arbitration.
H. Responsibilities of the Arbitrator. The arbitrator shall be responsible to conduct a Building Site Arbitration according to these Rules and Procedures and in accordance with the Colorado Common Interest Ownership Act C.R.S. § 38-33.3-101, et seq. (“CCIOA”) while utilizing the CDRS General Arbitration Rules and Procedures, only when necessary and not superseded by these Rules and Procedures. The arbitrator shall also have the responsibility to render an unreasoned arbitration award within fourteen (14) days after the closing of the Building Site Arbitration hearing. CDRS shall issue a “Certified Copy” of the Building Site Arbitration award according to the terms and conditions as specified in the CDRS General Arbitration Rules and Procedures. Notwithstanding the forgoing, the case administrator may withhold and/or delay the issuance of the Building Site Arbitration award if fees and costs due to CDRS are not or have not been paid when due.
I. Responsibilities of the Parties. The Parties shall follow these Building Site Arbitration Rules and Procedures and all timetables as specified in these Rules and Procedures. Additionally, the Parties shall notify CDRS within seven (7) days of the initiation of the Building Site Arbitration process or receipt of notification of the Building Site Arbitration process if they have selected any individuals or firms to represent them or participate in the Building Site Arbitration process along with their contact information including their email address to allow the arbitrator to do a conflict check.
J. Building Site Visit. The arbitrator may request a Building Site Visit, if he/she determines a visit is necessary to evaluate the BSE/BSR/BHI. The Claimant and the Respondents, upon mutual agreement, may also request a Building Site visit. Any Building Site visit shall be conducted prior to the hearing at a time agreeable to the arbitrator and both Parties. Both Parties and/or their representatives may be present at the time of the Building Site visit. The cost of the Building Site visit shall be paid by the Claimant.
K. Arbitration Communications. All communications shall be via email. All information sent to the arbitrator prior to the Building Site Arbitration Hearing shall be sent to CDRS via email with a copy to all other parties to the arbitration. Only information shared with all parties may be presented to the arbitrator for his/her review and consideration. There can be no direct contact with the arbitrator by any Party. All submissions, questions, or concerns shall be sent to the CDRS case administrator who shall forward the submissions or discuss those questions of concerns with the arbitrator.
L. Pre-Hearing Conference. Upon request of one or more of the Parties, the CDRS case administrator will schedule a Pre-Hearing conference call or video teleconference to be held within seven (7) days of the appointment of the arbitrator to review and establish certain additional rules and procedures for the Building Site Arbitration process including but not limited to:
Scheduling the date for the Building Site Arbitration hearing;
Establishing whether the DRB shall participate in the Building Site Arbitration;
Establishing the rules and limitations on the presentation of evidence at the Building Site Arbitration hearing;
Establishing the number of witnesses and individuals who will testify during the Building Site Arbitration hearing;
Establishing the specifics of the opening and closing statements for the Building Site Arbitration hearing; and/or
Establishing other special rules and procedures necessary to conduct the Building Site Arbitration.
M. Correction or Modification of the Award. After receiving a copy of the Building Site Arbitration award from CDRS, any Party to the Building Site Arbitration may request to the CDRS case administrator that a correction or modification to the award be made concerning typographical, computational, grammatical or any other similar correction that may be necessary to the award. A copy of that request shall also be sent to the other Party by certified mail. That request must be submitted to CDRS within seven (7) days after receiving a copy of the Building Site Arbitration Award from CDRS. The other Party will also have seven (7) days to respond to the request for the modification indicating their acceptance or objection to the correction or modification. No response from the other Party shall be considered an acceptance of the proposed correction or modification to the Building Site Arbitration Award. After the seven (7) day response period has expired, the arbitrator will be notified of the request and will respond to the CDRS case administrator within seven (7) days of receiving a copy of the request as to whether to allow the correction or modification. If there is a modification or correction to the original Building Site Arbitration Award, there will be a new Building Site Arbitration Award issued by CDRS.
N. Severability. If any of these Building Site Arbitration Rules and Procedures are deemed to be contrary to applicable law or are declared to be void by any court or through any legal process, all other Building Site Arbitration Rules and Procedures shall remain in force and only that Building Site Arbitration Rule or Procedure that is contrary to applicable law or voided shall be severed from these Rules and Procedures.
O. Modifications and Changes. The arbitrator may modify or change these Rules and Procedures only to the extent necessary to comply with mandatory provisions of Colorado law, including, in particular, CCIOA.
P. Confidentiality. Arbitration is a private process. All information concerning the Building Site Arbitration shall be kept confidential by the Parties, their attorneys, the DRB or anyone else involved in the arbitration process including experts and witnesses.
7.8 Appeals to the BOD
A timely and properly filed appeal of an Appealable Decision shall be heard and decided by the BOD.
7.8.1 Appealable Decisions and Parties Authorized to Commence an Appeal. The right to appeal a DRB Final Action is strictly limited. Only the following parties are authorized to appeal and only of the following types of Final Actions may be appealed:
Appeals by a Notice Owner. A Noticed Owner may appeal the following type of Final Action in the following limited circumstance:
· A Final Action approving a Limited Design Exception.
Appeals by the Applicant. The Applicant of any Application that was denied or approved by the DRB with conditions contested by the Applicant may be appealed to the BOD.
7.8.2 Commencement of an Appeal
Unless and until the DRB takes a Final Action, the actions of the DRB are not final, and the time for an appeal does not begin.
An Appellant authorized to bring an appeal of a Final Action shall file a written Notice of Intent to Appeal form with the HOC.
The Notice of Intent to Appeal must be received by the HOC within seven (7) calendar days of the Record Date of the Final Action. If the time for bringing an appeal falls on a weekend day, the filing deadline is extended to close of business the succeeding weekday that is not a federal holiday. The Notice of Intent to Appeal must be received by the HOC prior to the close of business (5 PM) on the last day by which an appeal may be taken.
Failure to timely submit a Notice of Intent to Appeal to the HOC shall eliminate a right of appeal by the party.
During such time that an appeal has been accepted by the HOC and through its final disposition, the HOC shall suspend further review and consideration of other Applications concerning the Lot that is the subject of the appeal.
All materials submitted in connection with an appeal shall only be sent to the HOC. The HOC shall circulate materials to the BOD and shall post the materials on the Website. Neither the Appellants nor other parties wishing to submit materials or information shall correspond directly with the BOD.
7.8.3 Scheduling an Appeal
A. When an appeal is properly filed the HOC shall send written notice of such filing to the BOD and the Applicant.
B. The BOD shall determine a day, time, and location for the appeal. The HOC shall post notice of the appeal, including the day, time, and location of the appeal, on the Website.
C. Written notice of the appeal shall be sent to Noticed Owners for the Application which is being appealed.
7.8.4 Processing an Appeal
The appeal process shall follow the process stated in the Current Amended and Restated Governance Policies and Procedures: Section 13 Mandatory Procedures, Final and Binding Arbitration 14, and Enforcement of Resolution 15.
7.9 Right of Review by the BOD.
Consistent with the rights and authority present in the Declaration, including the provisions of Section 8.16 of the Declaration (Assignment of Function) and Section 8.4.2 (Right of Review by the BOD), the BOD shall have the right of a sua sponte review of all actions of the DRB (“BOD Call Up Review”).
7.9.1 The BOD may elect to exercise and undertake the BOD Call Up Review under the following circumstances: the action is requested by at least three (3) of the members of the BOD, and within ten (10) days of any Action on the Application by the DRB.
7.9.2 The review by the BOD shall be conducted as quickly as possible.
7.9.3 Upon exercising a BOD Call Up Review, all prior actions of the DRB on the Application shall be suspended and the BOD shall assume all jurisdiction over the Application. The BOD shall not be bound by the actions and decisions of the DRB and shall consider the Application and all materials submitted into the record and any new information presented to the BOD in connection with its review of the Application. The BOD may elect to approve the Application, deny the Application or remand it to the DRB directing the DRB to consider certain factors, conditions and circumstances and act on such direction. In reviewing an Application, the BOD shall follow and apply all procedural requirements and review standards for the Application as provided for in the Governing Documents.