THE LAND USE LANTERN
NEWSLETTER OF THE LAND
USE COALITION
"To enhance the quality of life in Boulder County, and protect people's opportunity to own, use, and enjoy their property by promoting environmentally sound, fair and consistent land use decisions." -- Land Use Coalition Mission Statement
Summer 2002
PRESIDENT’S COLUMN
OPEN SPACE CONFERENCE SEPTEMBER 21, 2002 -
"ON COMMON GROUND"
Merger Bill
Election Of Commissioners From Districts
What You Need To Know About NCODs
The Zucker Report
Significant Colorado Case Decided
Greetings landowners!
Well, it’s been a busy and momentous period since our last newsletter, and I am pleased to have this chance to bring you this update on the happenings in Boulder County. We have had some successes in pushing for sane land use policies, and have established LUC as a major presence in the land use debate. As you will see, those forces aligned against individual property rights, public access to public lands, accountability of public officials, and reform of County land use practices and policies have begun to circle their wagons and use every lever they have to stifle dissent and deter our efforts. What this means is we must redouble our commitment to returning fair, sound, and consistent land use policies to Boulder County!
During the past four months we have had a very full LUC agenda. We were very active in advancing HB1416 which attempted to restore property rights to landowners who lost them with Boulder County’s "merging" regulations back in 1993. We spent many hours informing and educating lawmakers on the situation in Boulder County and the devastating impact to small landowners. Unfortunately this effort was thwarted by a few key lawmakers- most notably Senate President Stan Matsunaka - through backroom deal cutting with lobbyists from Boulder County. Be assured we will be back next year on this issue with the new legislature.
We also expended hundreds of hours on educating the public and public officials on the deficiencies and risks of Neighborhood Conservation Overlay Districts (NCODs). Though a vast majority of those that attended and testified at the commissioner’s hearing were opposed to NCODs, and even the Daily Camera was opposed to this intrusive approach, the commissioners railroaded the regulation through. Our next step on this issue is still open.
On a more positive note, LUC’s historic objections to Site Plan Review and the County’s land use processes were completely vindicated by the Zucker Report, though eight months after its issue little has changed in the LUD.
As you’ll read in this newsletter, we continue to fight the fight for land use sanity, and have important events on our plate for the coming year. Your support has been instrumental, and your continued support is critical to our efforts and effectiveness. We also welcome your personal involvement and attendance at our monthly meetings.
Thanks!
Kevin Probst
President
OPEN SPACE CONFERENCE SEPTEMBER 21, 2002 - "ON COMMON GROUND"
Acquisition, management and use of Open Space lands acquired by Boulder County and many cities and towns have resulted in numerous conflicts among user groups and County government, as well as differences in agreement as to what constitutes good "stewardship" of the land. In order to address these conflicts, the public needs to be more aware of the process of management, and to have a voice in these important decisions. Open Space is acquired with declining tax revenues, and funds for management are less available than they once were. Access by the public, including many of the volunteers who help maintain these public lands, has become increasingly limited.
Members from several different Boulder County public interest groups and user groups have joined together to organize a symposium on the use and maintenance of open space in Boulder County. This hardworking committee represents many groups and organizations with an interest in how our public lands are used and managed, a topic that has been very hot lately, and the subject of many letters to the editor in the Times Call and the Daily Camera. We are in the process of lining up presenters and panelists who will represent the interests of several organizations, including those with dogs, horses, hikers, climbers, bikers, preservationists, conservationists, environmentalists, fire mitigation and fire fighter groups, and animal protection organizations. Along with these participants, we have also invited professional planners and managers for their point of view. Our goal is to generate creative solutions to the issues of open space use and management in the 21st century.
Place:
East Boulder Senior Center next to the East Boulder Rec. CenterWhen: September 21, 2002, from 9:00 am until 1:00 pm.
The Steering Committee is headed by Barbara Taylor, and anyone who is interested in going or helping to organize or be a participant in this event, give her a call at 303-444-9508 and she’ll tell you when and where the next committee meeting will be.
MARK YOUR CALENDARS FOR THIS EVENT!
We were fortunate to have Sen.Steve Johnson (R-Larimer County) championing the "un-merge" bill, as it came to be somewhat awkwardly known during this last session. The "merger" regulation, adopted in 1993 by Boulder County, and later by a small number of other counties, provides that if two or more building lots are contiguous, and are purchased under common ownership, those lots would be merged into one, and only one house could be built on that property. More than 400 families were detrimentally affected by this bill. Many landowners don’t know this until they actually apply for a building lot designation for their second lot, only to discover to their dismay that that the county had merged the two (or more) properties long ago, and as a result they are not allowed to build a house on the second lot. Some were told that they owned a very expensive "picnic spot." Many landowners lost hundreds of thousands of dollars of expected value that may have been held by them as part of a retirement plan, college funds or an inheritance to their families. As one of our members put it:
"Some of us invest in stocks and bonds to provide for our future years. Others prefer real estate. And many of us pay taxes on property for years and years, dreaming of building a home on our own land some day."
House Bill1416 would have required counties to give notice to any landowner whose properties were to be combined, and would have required the owner’s consent and the right to a public hearing before the property is designated as merged. The bill would still have allowed consensual mergers.
The bill, which became the merger bill, began as an unrelated takings bill, and the merger language was tacked on as an amendment at the request of members of the Land Use Coalition. The language was drafted by two of our lawyer-members, and survived several crucial attempts to kill it in both the House and the Senate. While the takings bill was defeated, the merger language survived to become a separate bill which had approval right up to the third and final reading in the Senate. On the last day of the Senate some legislators opposed to the bill were able, through some backroom political maneuvering, to prevent it from being put to a vote in its last reading (and yes, the votes were there to pass it), and it died without even a hearing.
Boulder County (and local politicians Plant and Tupa) fought hard to have the bill rejected. Astonishingly, one of their lobbyists conceded in her argument against the bill that the merger regulation is applied without any clear standards and that 70% of those who challenged the merger determination (read "had a lawyer and money enough to fight") had their properties "un-merged."
Many of us went down to the legislature to educate legislators on the devastating effects of merger, and the benefits of this bill, and we are prepared to so our homework during the next session.
ELECTION OF COMMISSIONERS FROM DISTRICTSThis bill was carried by Rep. Bill Swenson (R-Longmont). We became interested in this effort because we have learned that much of Boulder County (areas lying outside the City of Boulder) feels underrepresented on the Board of County Commissioners. This bill would have permitted Counties with populations of over 70,000 to petition to elect their commissioners from districts, instead of at large which is the current scheme. At this time, citizens living in statutory counties such as Boulder have no right to initiate any legislation, and this bill would confer that basic democratic process to the voters of at least a few counties.
With leadership from districts, the people (eg. rural landowners) of that district would be able to appeal to their own commissioner, who would be representing the interests of that area and the people living within it, as well as Boulder County as a whole. Again, Boulder County threw its considerable weight against this bill, apparently afraid of the effects of handing that kind of power over to the people.
We think the time is right for this idea, and hope to have another chance to support this kind of effort.
WHAT YOU NEED TO KNOW ABOUT NCODs
The Coalition put a great deal of effort and time into educating its membership and the public about this most recent draconian regulation passed by the Board of County Commissioners. In fact, you should have received a postcard from us alerting you of the proposed regulation, and urging you to write the Commissioners and/or attend the hearing. Because the Commissioners were fast-tracking approval of the bill, and minimizing notice to affected landowners, we also took out ads in the local papers alerting landowners of the hearing.
NCODs (Neighborhood Conservation Overlay Districts) are designed to allow 50% of your neighbors in your "neighborhood" (15 or more adjacent similar properties as "identified" by the ad hoc neighbor group) to initiate an NCOD which would govern virtually every element included in Site Plan Review, including the location of buildings, height, size, exterior lighting and paint color, preservation of view corridors and landscaping. It will then take 60% (the staff recommended 67% but Jana Mendez reduced it) for a neighborhood to present its plan for approval from the Commissioners.
There was a standing room only crowd at the hearing, with more than 200 citizens attending. Over 50 people spoke against the proposal, and a smattering spoke in favor. Many said they never would have known about the hearing or NCODs if it hadn’t been for the Land Use Coalition. Several requested that there be more time devoted to studying the potential effects of such a regulation for promoting discord within neighborhood, and encourage pitting neighbor against neighbor. However, the Commissioners, who obviously had already made up their minds on the subject, merely waited for the citizens to finish speaking (though as frequently is the case at BOCC hearings occasionally argued with or interrupted speakers who were critical of the proposed regulation), then held a perfunctory "discussion" among themselves in which they either dismissed or ignored almost all of the legitimate questions and concerns posed by the public, and stated only their own opinions as the basis for their decision to adopt the regulation.
The Boulder Camera editorial recognized and highlighted the dangers inherent in the overlay concept as it is likely to be applied in unincorporated Boulder County: Noting that such a regulation had been adopted by no other Colorado county, the editorial predicted that "Soon, for good or ill, battles over NCODs will commence in neighborhoods, far from commissioners who can heave a sigh of relief and say ‘not our problem’. We can already hear the sound of bad blood simmering."
You can read the regulation in its
finalized form on the Land Use Department website:
http://www.co.boulder.co.us/lu/
(Click on DC-O2-01 Neighborhood Conservation Overlay District)
The Zucker consulting group from California completed their survey In April and presented the County with a report outlining its methodology and findings. The Commissioners quietly made it public, and attempted to downplay the results, which were devastating to the County.
In its comprehensive 136 page report, Zucker’s team was able to capture the heart of the land use process as it is practiced in Boulder County, and made no less than 184 separate recommendations forming a road map for improvement. The report is replete with criticisms of the way the process works, and unearthed specific facts and statistics to support their conclusions.
For many of us it came as a happy surprise that the concerns articulated by the Coalition during the past three years, in fact, were corroborated by a outside consulting group hand-picked by the Commissioners themselves. We had half expected a white wash. After years of hearing the Commissioners’ personal attacks on those who dared to question their decision-making, their defensive attempt to discredit dissenting opinion and undermine credibility, we now have an independent appraisal supporting the reality of the land use bureaucracy run-amok
Taking dead aim at one of the Coalition’s major complaints with the County, Zucker focused on the Site Plan Review process as "excruciating" for staff, the Board, developers and citizens alike. The report stated a need to change not only the way in which the SPR applications are assigned and processed within the department, but in its own attitude toward these development proposals in general. Recommendations included shortening up the time for SPR and better communication with the public about how the system works and what is expected of them.
One member of the Commissioner-appointed Board of Adjustment was quoted as saying "Mr. Billingsley takes personal affront if someone does not agree with him – anger classes might help, he is after all a public SERVANT. He is rude to the public, not us." A member of the Commissioner Board of Review put it this way: "Land Use and the County Commissioners love to micromanage. BCC should look at the big picture and let Land Use determine the finer points. Both of them tend to be very subjective and arbitrary.
The Zucker team listened to tape recordings of hearings before the Commissioners. The report had this to say: "…issues are being raised that are not clearly related to any standards of approval". Here are some examples:
"How much did they pay for this
site?"
"The design is not ‘mountainy’ enough"
"Bobcats roam this area and take children"
"This house is just too big. You don’t need a house this big on
this lot"
And finally, the dreaded words:
"This hearing is tabled indefinitely until the applicant can come back with something else or, if they prefer, we will deny it."
"We could not tie any of these statements to the approval standards," observed the Zucker report. And as the Daily Camera Editorial put it, these statements from our decision-makers are merely "… a sampling of arrogant, subjective and absurd comments."
A final noteworthy conclusion of the Zucker report was the negative reaction of applicants to the Land Use process. They commented that it was one of the highest negatives they had ever seen, and noted that dealings with the Commissioners and their hearings was among the most negative aspects of the overall process. The report includes detailed numerical results of surveys conducted by Zucker. These results paralleled directly the results of the Land Use Coalition’s survey conducted 2 years ago.
As most of you know, we’ve frequently requested reforms in the Land Use system for years now, and have been met with derisive, over reactive and defensive denials from the Commissioners that anything could possibly be wrong with the way things worked in the Boulder County Land Use process Those of us who dare to question the wisdom of their judgment are characterized as "whiners".
Legitimate citizen dissent with government is a sign of a healthy democracy. Mischaracterizing citizen participation as "whining" is a sure sign that our government has become fearful and defensive. This says much more about the BOCC than the messenger. The Zucker report confirmed what many of us have known for a long time. It’s time for some substantial changes in Boulder County leadership. Unfortunately, in the eight months since the Zucker report was issued there has been a lot of talk about reform, but no substantial progress on fixing the problems.
You can read for yourself Volume I of the
Zucker Report at the Boulder County Land Use website
http://www.co.boulder.co.us/lu/.
Click on "Evaluation of Land Use Department's Customer Service".You can also pick up a free copy of both Volumes I and II at the Land Use Department.
SIGNIFICANT COLORADO CASE DECIDED
Two cases, one federal and one a Colorado state case, have expanded opportunities for property owners to be awarded damages for regulatory takings of their property, although the threshold will not be easy to meet.
Government lawyers can no longer rely on the "deprivation of all economically beneficial use of property" standard as an absolute defense to insulate them from the requirement to pay compensation where a landowner can prove a partial diminution of value due to a government action. The government will need to be able to justify a regulation against an assertion that it constitutes a regulatory taking.
Animas Valley Sand and Gravel Inc v Board of County Commissioners of the County of La Plata ("Animas Valley"). (Colo. 2002) was decided after the US Supreme Court case (Palazzolo v. Rhode Island, decided by the US Supreme Court in 2001). The Colorado Supreme Court adopted the analysis of Palazzolo in its decision in Animas Valley.
FACTS: In 1961 the owner of Animas Valley acquired a tract of land, and split the parcel into two in 1979, one 4acre tract, and one 42 acres. The company acquired all the permits needed and began a sand and gravel business upon ten acres lying across both lots. In 1993, the County passed its first county-wide land use Plan. The plan designated the ten acres then being mined as "grandfathered" in, but labeled the rest of the land in both parcels as within "a river corridor district " to which limitations and restrictions on use applied. The County refused to grant the owner’s request allowing the larger parcel to be designated as industrial, which would have allowed the mining operation to continue. The owner then filed an inverse condemnation action against the county alleging that the enforcement of the land use plan as to Tract B constituted a taking. The district court found there was no taking under the theory that the owners had not been "deprived of all reasonable use of the property" or there was insufficient evidence that the government regulation had gone "too far" , standards often applied before Palazzolo.
The Colorado Supreme opinion held that a taking can be justified if a regulation‘s level of interference is high enough to constitute a taking. They adopted the Palazzolo analysis in doing so. A mere decrease in property value resulting from the regulation is not enough to justify a taking. Sending the case back to the trial court, the Supreme court stated that the trial court would need to determine to what degree the loss of value was attributable to the land use plan enacted (as opposed to other factors), and then quantify the resulting diminution in value, if any, of the property. The Courts will need to then compare the net value of the land’s use before and after the plan. The Court agreed with the County that the denominator in this equation had to be the entire parcel, not merely the portion burdened by the regulation.
The Land Use Coalition
P.O. BOX 20265 Boulder, CO 80308
303-666-7903
http://landusecoalition.org
contactus@landusecoalition.org
For more information contact the Land Use Coalition at contactus@landusecoalition.org or call 303-666-7903.
Last updated October 27, 2003.
URL: http://landusecoalition.org/feb02_newsletter.htm
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