LAND-USE BY LITIGATION

Why is the distinction between private property rights and growth management so difficult for some to understand? House Bill 1192/Senate Bill 218 (A Bill For An Act Concerning Regulatory Impairment Of Property Rights) will not put an end to growth management in Boulder County, as opponents complain, since growth management and private property rights are two totally separate issues.

The reality of basic private property rights - to own and make use of private property - is fundamental and guaranteed by federal and state constitutions. And no, that does not mean that a property owner has a right to extract the greatest possible value from his property without regard for the effect of his actions on the neighbors. The most commonly accepted form of legal constraint on the development of private property is zoning. The legal basis for zoning is founded on the right of a government (e.g. Boulder County) to protect the health, safety and welfare of the public, with the power to zone obtained through the enabling legislation of the state (e.g. Colorado). For each zoning district, a list of permissible uses is specified (e.g. single-family residential) as are common historically-grounded regulations. They concern a structure’s physical nature such as a consistent minimum distance that the structure must be setback from a property line, or a consistent maximum height of the structure.

The concept of growth management strives to fulfill one desirable goal - livable, sustainable communities. For most governments, growth management means discouraging sprawl by encouraging inevitable but sound growth in areas where a municipality’s infrastructure is already in place, or in areas where development will not outpace anticipated infrastructure improvements. In Boulder County’s case, growth management primarily means purchasing developable lands as public open space in order to preserve the individual identity of communities in close proximity, and to preserve characteristics that may make the community what it is in the first place - namely views. As most know, the citizens of Boulder County have a relatively painless sales tax to cover the costs of purchasing and managing open space.

The problem arose when our current county government set its sights on obtaining more lands than it could afford; market rates being what they are. It began to see the reinterpretation and removal of property rights as a legitimate means to protect its open space and to obtain more open space from private property owners without just compensation. This took place under the banner of "sensible growth management" and has been implemented through a nightmarish Site Plan Review. Six years ago, I was fully in favor of some manner of site plan review for new homes in the mountains, until the realization quickly became apparent that Boulder County’s version of Site Plan Review was simply an expansion of its open space acquisition program and rarely lead to a higher standard of design or compatibility with the given site. Neither did its enhanced version of S.P.R. for the illegally spot-zoned "Natural Landmarks". Nor did its Limited Use Special Reviews. Nor will its brand new Wildlife Review. While some choose to believe that Boulder County has "set the highest of standards for growth management", how many have actually read them or have been directly (or indirectly in the media) exposed to them? The written standards are so incredibly subjective and vague that no two individuals, regardless of training, could possibly arrive at identical interpretations or conclusions for any application. The same must be said of the numerous abovementioned, mandatory reviews. The vague and subjective language combined with the near complete absence of criteria, and lack of professional and technical skills on staff’s part often results in extreme, arbitrary conclusions and determinations that are completely without rationale or objective justification.

One applicant’s proposed home is allowed, but not the driveway necessary to build it. Another applicant’s proposed home is relocated completely off the applicant’s property, by staff, and onto a neighbor’s property. Nonexistent access easements are assumed, requiring yet another applicant to cross an unwilling neighbor’s property. The list goes on and on. An attorney becomes a necessary member of most applicant’s design teams. Just to build a single-family home.

Many of the County’s final determinations and imposed conditions do deserve litigation (and some receive it), but when faced with tens of thousands of dollars in legal expenses and years in court, an applicant must remember that the original goal was simply to build a home for the family, not fight the abuses of big government. The applicant submits, his home is redesigned for him by a committee, and the defense of his constitutional rights waits for someone else. HB 1192 (or SB 218, as it is now known) "... reinvigorates the Federal constitutional prohibition against taking private property for public use without just compensation and the state constitutional prohibitions against taking or damaging private property for public or private use." Additionally, HB 1192/SB 218 states, "No local government shall impose any discretionary condition upon a land-use approval unless the condition is based upon duly adopted standards that are sufficiently specific to ensure that the condition is imposed in a rational and consistent manner." Rational. Consistent. That’s not too much to ask, is it?

Many confuse "sensible growth management" with the abuse and taking of private property rights, two totally separate issues. Whatever balance that once existed between the two has been disregarded to the point of incomprehensibility by Boulder County’s Land Use Department under the supervision of our county commissioners. They have demonstrated again and again that this "delicate business" is not "one best left in the hands of local officials". HB 1192/SB 218 should become the law of the state.

Mark Patrick Heath is a Boulder County resident and architect. 303-666-8649.