March 17, 1999

Dear Senator Rupert:

Again, thank you for your hard work on House Bill 1192 and on your thoughtful consideration of local land use and growth management issues in general. We strongly support your efforts in sponsoring a bill "concerning comprehensive planning by governments to manage urban growth."

It has been reported to us that the Board of Boulder County Commissioners and our Land Use Department received significant criticism during public testimony on HB 1192. We know that you understand that there is at least one other side to all these stories. However, we thought it would be helpful to specifically address some of the issues raised.

First we want to make clear one very important issue. There were fears raised by more than one persons who testified from Boulder County of reprisal on the part of the County because of their testimony. We have a strong tradition and policy in Boulder County Government of encouraging public participation in out processes. We also strongly support that objective in the state legislative process. We believe that these people have a right to speak their mind to the state legislature, as well as to us. We would not support, nor would we condone on the part of our staff, holding any of the testimony or expression of personal opinion against any of the individuals involved in this or any other debate.

Second, our regulation which requires Site Plan Review of build able (sic) lots in Boulder County seems to be receiving the most criticism. This regulatory process was instituted in 1993 to address both citizens' and the Board of Commissioners' concern that individual building projects (particularly in the mountains where approximately 3,000 of these "legally buildable lots" occur) were having significant impact on adjacent property owners and the environment, including water quality, slope integrity, wild fire hazard, vegetation and wildlife. Of the approximately 1400 site plan reviews accomplished since 1993, about 12 percent have been heard by the Board of Commissioners as problems. Most reviews are handled easily at the administrative level by our Land Use Department and approved by the Director. A Commissioners' hearing is held when more than one adjacent property owner has written a letter of concern, the applicant disagrees with the land use staff or one or more significant environmental issues are involved, such as wetlands or major wildlife corridors.

You might be interested to know that in the past six years Boulder County has commissioned several scientific, random sample, opinion polls to help us identify priorities for county government. When residents were asked, "What is the most important issue facing Boulder County." the answer, by a wide margin has always been "growth." The vast majority also support Boulder County doing more to manage growth. However, we do not take this obvious public mandate in Boulder County as license to run roughshod over individual property owners and the dreams for their property (often very expensive property and costly building projects). We spend a good deal of our public time and effort trying to balance these two, sometimes competing interests. However, we believe that we can do a better job of that than can the state or federal government or the judicial system. One of the most ironic and sad parts of so called "takings legislation", including HB 1192, is that it will make our job of balancing these interests more difficult, while not solving ANY of the problems articulated by the individuals who testified. In fact, this type of legislation will likely allow less flexibility and necessitate more regulation on our part. However, if property values are any indication, it is hard to characterize what we are doing in Boulder County as a "takings." The price of lots in unincorporated Boulder County are escalating at record pace and are now selling for around $200,000. We have seen lots sell for as much as $500,000!

Relating directly to testimony in the Senate Local Government Committee which was critical of Boulder County's land use practices, much was misleading or inaccurate. Thirteen of the eighteen persons who identified themselves as Boulder County residents and who made statements about how unreasonable the Boulder County Commissioners were treating landowners and depriving them of their property rights have never had a matter before the Department or the Board. Two of the eighteen had specific issues with the City of Boulder.

Several general comments were made about potential slope regulations being considered in Boulder County. More specific guidelines for regulation of building on slopes is under consideration, because significant impacts have occurred with both buildings on steep slopes and roads to access them. Slope integrity issues, erosion, water quality degradation, wildfire hazard and offsite impacts on other property owners was at issue. Because of our concern that property owner's rights, as well as the public welfare be protected in this process, we have asked that a citizen's committee, representing all sides, review the issues involved and report back to us. Based on their report and information from others, we know the specifics of this proposed regulation will change before it becomes part of the land use code.

One witness, who has not had a specific land use application with the Department or the Board, but has concern about the County's Wildlife regulations, was very misleading. Wildlife regulations were instituted in Boulder County simply to prevent where possible significant impacts to wildlife, a value that our citizens rank very highly. They apply to Site Plan Review only at the discretion of the Land Use Director when it appears there is a significant wildlife issue with a building site. The list of "species of concern" found in the Boulder County regulations is intended to mirror those species on the State and Federal lists. There are a few sparrow, squirrel and chipmunk species on the list which are considered to be "isolated/restricted." These are not common species and are considered endangered. We are not aware of any Site Plan Review where these species of concern have played a role in the decision.

We respectfully submit that those who have criticized our land use code regulations, for the most part, are a small vocal group of opponents. They tend to oppose land use regulation generally, and to the extent that they have had a personal experience with application of the regulations to their projects, this has served to further lambast the system.

At the same time, we know that our regulatory process is not perfect and can be problematic for individual property owners at times. That is not our goal, however. Our goal is to effectively balance the interests of these property owners with the interests of adjacent property owners and the public at large, who we very much believe need to be at the table if we are to protect this very beautiful country against the significant impact of rapid growth.

If you have any questions or concerns, please fell (sic) free to call on us at any time.

Sincerely,

Ron Stewart, Chair

Jana Mendez, Vice Chair

Paul D. Danish

SPECIFIC RESPONSES TO TESTIMONY ON HB 1192

Ann Mygatt:

Statement: She has been going through the Site plan review process for 4 weeks.

Fact: Ms. Mygatt neglected to say that her daughter-in-law, and others, are defendants in a pending lawsuit as a result of their illegal grading of a road that is in violation of both the county's building code, and land use code. The parties involved were notified of the violations on February 5, 1998, but they allowed continued violations of additional grading to occur after this notification. Ten months, on November 20, 1998, we received an incomplete application for a Site plan review from Ms. Mygatt. This property is in the same location as the illegal road. We wrote Ms. Mygatt and informed her that the application could not be processed until required grading and certain engineering calculations that were missing from her application were included. On March 3, 1999, we received a portion of the additional information that we had requested the previous November. The following week, we wrote to Ms. Mygatt to explain that the application is still incomplete, and that we sti!

ll need the information we described last November before we can begin processing her application. More importantly, we have repeatedly informed Ms. Mygatt that it appears that she is applying for the wrong review, and that her application more properly needs to be for a limited impact special review, which is the proper review for land grading in excess of 500 cubic yards. Rather than the county having prolonged a review and made it unnecessarily burdensome, as Ms. Mygatt asserts, Ms. Mygatt has ignored the county's regulations, and refused to timely apply for the proper permits that would remedy the situation.

Statement: The (draft) slope regs. would prohibit development of property steeper than 30%

Fact: The draft slope regulations did not prohibit the development of any property. Instead, they proposed that property with slopes over 20% would need to meet certain requirements, and that sites that were steeper than 30% could not be built on if there were alternative areas of the lot that were less steep and could accommodate development. But if there were no other portions of the property that were less steep, then additional restrictions designed to limit the site disturbance would be triggered.

Planners Code of Ethics demands that planners fulfill this liaison role. To suggest, as Ann implies, that planners can somehow conduct planning in a vacuum is antithetic to good planning and everything planners in this country are trained to do, that is to treat all sides equally.

Statement: The Land Use Department reused to send anyone a copy of the draft slope regulations.

Fact: We provide anyone with copies of any of our public documents upon request. We have mailed over 300 copies of the regulations to the public. Additionally, it was (and is) available to view and download on our Web (Internet) page. What Ms. Mygatt neglected to include in her testimony was that she mailed a letter to various county residents that contained misleading and false information. This resulted in our receiving over 200 telephone calls over the course of 3 days. Since our telephone lines were swamped, we were not able to talk to each person as they called and some of the calls went to voice-mail. These calls were returned within a few days. We told everyone we spoke with that we could mail them a copy of the draft regulations. We declined to fax the material at this particular time because it would have monopolized our only fax machine, which of course is needed for many other purposes. Once the county commissioners decided to postpone their consideration of the draft regulations and form a committee to review the idea of slope regulations, we notified 2,800 people by regular U.S. mail.

Kurt Petersen:

Statement: He was charged $600 to $900 in undisclosed fees.

Fact: A preapplication meeting is required as part of the development review process. In that meeting we explain that it's the applicant's responsibility to cover all of the actual costs of processing a case which exceed the application fee (in this case, $300). We provide the applicant with a written payment agreement that explains the payment process, and which must be signed by the applicant and returned with the application materials. There is a signed payment agreement in the file for this docket. Kurt Peterson was billed a total of $696.37 for SE-98-08, in addition to the $300.00 application fee.

Burton (Buck) Olmsted:

Statement: The commissioners are making the decision (on land use matters) without visiting the site, and he was limited [in the subdivision exemption process] to a '1,200 square foot presumptive house.'

Fact: The planner that handled this case (SE-95-25), Chris Toebe, remembers that the commissioners did in fact visit this site as part of their consideration of the request. The final approval, Resolution 95-170, presumes a 2,200 square foot house, unless more is approved through the site plan review process.

John Henderson:

Statement: {In Boulder County} the commissioners will design your home for you.

Fact: The county has conducted over 1442 site plan reviews, to date. No more than 12% of these have gone to public hearing before the commissioners. So 88% of the time, the commissioners have not had any influence on houses undergoing review.

Mark Steen:

Statement: The county's new wildlife regulations 'deny the right to build.'

Fact: The regulations do not prohibit development. They expressly provide authority to deny a proposal, which is not the same thing. A house proposed in the middle of an endangered species habitat, through these regulations, would be relocated to an area outside of the habitat, as an approved mitigation measure. A wildlife study, conducted in accordance with the regulations, could develop other acceptable mitigation measures. The point of the regulations is to provide a rational basis for deciding what, if anything, to do to mitigate development directly affecting certain defined species.