| April
8, 1999 Audrey Godell Dear Ms. Godell: I am writing to you to provide information and comment from the Boulder Area Board of Realtors® (BABR) Directors and members regarding the proposed Boulder County slope regulations. Since your 'charge' from the County Commissioners includes an analysis of the proposed regulations I will provide our review of those regulations, identify specific concerns and offer several alternatives for consideration by the Slope Advisory Committee. In the discussion below, various numeric references indicate the code section of the proposed regulations. 4-701: Purpose and Intent This section suggests a rather common mixture of legislative motives to regulate development on slopes. The stated purposes include environmental and aesthetic concerns in addition to traditional health and safety matters. Existing case law does support the County's authority to regulate on any or all of these. However, several points should be considered. First, zoning regulations for aesthetic purposes involves a high degree of subjectivity. There must be clear standards in the regulations to guide staff or administrative bodies who will have to exercise discretion in implementing aesthetic objectives. The proposed Slope Amendments are devoid of any such standards. Second, The stated purpose also includes "to preserve and protect the open and natural characteristics of land…for…the property values of the surrounding area." It appears that the intent is to preserve privately owned open space as a benefit to the surrounding property owners who have already developed their own parcels. Thus, the regulations raise the type of equal protection issues decided by the U.S. Supreme Court in the well-known Lucas case. Clearly, owners who purchased property on slopes in Boulder County, with a reasonable expectation of developing it as others have already been allowed, should not be forced to preserve open space for the benefit (property value) of owners of developed parcels. Third, the proposed Slope Amendments appear to take a 'command and control' approach of strictly limiting the amount of disturbance on slopes as an ostensible means to address the stated areas of concern. Yet, no performance standards by which engineering criteria would have to be met to ensure public safety and property protection are considered or provided. In the absence of such standards the Slope Amendments cannot be considered good legislation for these purposes. Even the American Planning Association concedes "the hillside plan and its implementing ordinance must have clear and consistent purposes. There must be an explicit connection between the planning goals and the ordinance. Anything less holds the potential for conflict and litigation as controversial projects are proposed and approved." (See, Olshansky, R.B., Planning for Hillside Development, American Planning Association Planning Advisory Service, Report Number 466, at 7).
4-702: Applicability and Scope The proposed Slope Amendments apply to development that is subject to "Site Plan Review, Special Use Review, Limited Impact Special Review or Historic district Review." To the extent that the problems the County intends to address are truly the impacts of development on slopes, and not simply growth control or land preservation, then no development should be exempt from the application of the regulations, including public uses. The proposed Slope Amendments are overly broad in their effect. While the use of the 20% slope as a threshold for regulation is within the usual range for such regulations, the measurement used in the Slope Amendments is misleading. Regulating development on a site having an average slope greater than 20% unless there is a building site of at least 6,000 contiguous square feet where there is no slope greater than 20% overstates the actual slope of typical parcels. The formula used to calculate average slope is particularly misleading in the mountainous areas of Boulder County where contours do not run in straight parallel lines. Thus, the typical parcel will have longer contour lines and so would have a greater average slope using the proposed formula. A mapped overlay district would be an improved way to provide more certainty and avoid over-regulating parcels that can be safely developed. Such an overlay would recognize that some slopes are more suitable for development than others. Also, mapping the land to be regulated would provide a means to determine how much land is affected and what economic impact the regulations would have on individual property owners and the real estate market. The "Safety Clause" providing staff discretion for development on slopes of greater than 30% where development is 'prohibited' is presumably an "out" to avoid takings claims. However, there is no indication of what standards staff must use in exercising this discretionary approval authority, or whether staff is simply to confirm that development standards have been met and that there is no area on the parcel having a slope of less than 30%. Of even greater concern is the staff interpretation that the Slope Amendments represent a "minimum" standard, subject to staff discretion to impose additional requirements. The fact that land use staff has stated its intent as a matter of practice to go beyond even the substantial limitations imposed by the Slope Amendments is very significant. The Slope Advisory Committee should question this statement by the land use staff and recommend that in any adopted regulatory scheme affecting slopes that language be included that limits the ability of staff to require additional restrictions. 4-704: Hillside/Steep Slope Development Standards The restrictions on 'disturbance area' are overly conservative, will severely constrain development that is not immediately adjacent to and existing road or driveway, and may require location of development in conflict with other County land use objectives, e.g., view corridor protection. Another problem with the proposed standards is that the language does not clearly indicate the disturbance area calculation or methodology where multi-unit development is considered. This flaw could limit larger parcels to a single small home where additional units can be safely and appropriately placed. The restriction on excavation and fill will have a significant impact on the size and design of slope housing and is contrary to the Slope Amendments' stated purposes and intent. The limitation does not appear to further any health or safety purposes let alone, an aesthetic purpose. The 375 cubic yard excavation limit has no established planning or engineering basis and should not be imposed in the absence of attestation. This is likewise a weakness in the existing 500 cubic yard limitation in site plan review. Another effect of the limit would be to force' the proposed reduction in height limit to 25' since it eliminates the alternative of appropriately constructing into the hillside. Although provision 4-704B appears intended to provide some flexibility from the development standards, it is internally inconsistent and poorly worded. Although it allows development that does not meet all the criteria if it "is shown to reduce the overall impact to the site and surrounding area" and meets the "purposes and intent of" the regulations, it goes on to say that such a proposal may only be approved "to the minimum necessary to accommodate a permitted use of the property." The intent of this wording appears to be focused on avoiding situations where a taking might occur. Any adopted slope scheme should allow for innovative site design solutions to preserve the ability to address expressed concern with safety, environmental protection and aesthetics in ways that do not meet the strict criteria of the Slope Amendments. 4-705 Exemptions Under this section of the proposed Slope Amendments, Boulder County has effectively exempted itself from applicability. The County applies to public uses only three general performance standards: 1. The site is physically suitable for the design, extent and siting of the proposed development, 2. Any proposed development retains the open natural characteristics of the site and aesthetic qualities of the area as a whole, and 3. Any grading proposed in connection with the proposed development will not result in rockfalls, subsidence, mudslides, erosion, sheet runoff, flash flooding or any other geologic instability or fire hazard. The vagueness of these criteria leaves too much potential for abuse. However, the third standard does at least suggest a better approach to slope development using performance standards that address public safety and property damage concerns. County Commissioners Charge to the Slope Advisory Committee Alternatives suggested in the "charge" are on balance worthy of serious consideration. In some cases they may be incomplete or do not go far enough in identifying more innovative approaches. The notion of purchasing the land or development rights on the more difficult sites is positive. However, limiting potential funding to a general improvement district scheme is too narrow. Because of the direct benefit derived by other developed and developable mountain property owners it is appropriate that they incur a higher incremental cost for purchase or preservation of the more difficult sites. A broader base should represent the countywide benefits. The Commissioners should be encouraged to place an extension of the current County open space sales tax on this year's ballot for voter consideration. If approved, the County could issue bonds and quickly initiate a purchase strategy. Another appropriate approach to limiting impacts is to provide for a transfer of density or development rights from more difficult sites to flatter sites. This could be done on large sites under single ownership and/or between sites under different ownership. A variation on this approach would be to provide incentives for clustering on lesser slopes through density bonuses. It should also be noted that these techniques could be used where a larger structure is desired than those envisioned by the proposed Slope Amendments. That is, an individual could move density from a large site to a single residence or purchase additional square footage from another property. We do not agree with the idea that steeper slopes should necessarily undergo greater scrutiny. Rather, we would prefer that the County establish clear performance standards based on well founded planning and engineering criteria and let those dictate outcomes. The closer we move toward objective criteria and away from subjective determinations, the more likely we are to achieve the stated objectives while promoting consistency and fairness in the land use code. It has been suggested that earlier identification of building envelopes would be helpful in letting property owners know what can be done with their property. If this is done in conjunction with the broader mapping effort, establishment of objective planning and engineering criteria and identification of preferred building sites on a slope property it would provide the certainty desired and avoid over-regulating parcels that can be safely developed. Thank you in advance for taking the time to consider our comments and suggestions. If you have questions or would like to discuss these issues further, contact me at 303/441-5614 or BABR Senior Vice President, Kenneth Hotard at 303/442-3585 at your convenience. Sincerely, Barry Friedlander cc: Ron Stewart, Jana Mendez, Paul Danish |