MEMORANDUM
TO: AJ Chamberlin, The Land Use Coalition
FROM: Ann B. Mygatt, Esq.
RE: The Significance of New Slope Regulations on Existing Homes.
DATE: June 29, 1999
You asked me for a quick overview as to how slope regulations, if passed in the form approved by the County Planning Commission, would impact already existing mountain homes. What follows is a very brief discussion addressing this issue. Many complications have been omitted, so this memo should not be viewed as a definitive legal opinion.
I am told that the Commissioners insist that support for the proposed regulations comes from people who already live in the mountains. It may be that these residents assume that their improved property will be worth more if their neighbors are prevented from building. While people may assume that their existing homes will be "grandfathered in," this may well not be the case.
New slope regulations will not just apply to homes built in the future, they may impact as well already existing homes which are constructed in a manner which is inconsistent with the regulations.
Once the new slope regulations are in place, all existing uses in violation of these regulations will automatically be "nonconforming". What does this mean? Under state statute, C.R.S. §30-28-1120(1), the County is authorized to terminate such uses provided the formula it uses allows for the amortization of the investment in the nonconformance.
It is more likely, however, that the County will adopt a policy that prohibits or inhibits further development of such nonconforming uses. Such a policy would apply both in the case of the destruction of an existing home, say through fire, or any effort to modify or extend an existing home (unless such modification does nothing more than correct the nonconformance). In fact, the County has such a policy already. BCLUC §4-1001(A) states, in part, that the Land Use Code "shall be strictly construed against the continuation or expansion of nonconformity." The Code goes on to say that while a nonconforming structure may continue to be occupied unless it is dangerous (see below), such structures cannot be altered, repaired, or enlarged in any way which would increase the degree of nonconformity. And if destroyed by fire, a nonconforming house on a slope would have to be rebuilt within a very small period of time (that is, the work must be commenced within 6 months of destruction and completed within 12 months after that).
Many people in the mountains live in homes that will become "nonconforming structures" by the new regulations just passed by the Commission. While they may think their home will never burn down, or that they will never want to enlarge their home, there is simply no denying that their home "nonconformity" will impact its marketability, and thus its value.
Perhaps even more significant is this: If the new regulations are justified on the basis of safety concerns -- and they must be to pass constitutional muster – then the County may be obliged to enforce them against existing homes as well as on homes built subsequent to the effective date. This result is mandated by current County ordinances. The state statutes at C.R.S. §30-28-201 oblige the County to adopt a version of the Uniform Building Code ("UBC"), and Boulder County has in fact done, adopting the 1997 version of the UBC. At § 3401 the UBC expressly states:
Buildings in existence at the time of the adoption of this code may have their existing use or occupancy continued, if such use or occupancy was legal at the time of the adoption of this code, provided such continued use is not dangerous to life [emphasis added].
Thus, if the County’s position is that building residences on slopes is really dangerous to life and limb, then existing homes violative of the newly enacted regulations cannot be grandfathered in. They are rather structurally unsafe, which in turn allows them to be categorized as "public nuisances" and as such they must be "abated by repair, rehabilitation, or demolition or removal" in accordance with § 102 of the UBC. If anything, these older buildings are more vulnerable to this characterization since presumably current engineering and building techniques are better than the old at diminishing the risks associated with building on steep slopes. Once deemed "unsafe", under existing law the County must move to redress these violations.
If the County fails to move on these violations, individual citizens can seek a writ of mandamus, in effect a court order, forcing the County to take action against these "dangerous" buildings by condemning them and seeking their destruction. The County need not compensate people in such cases. While some may claim that this scenario is far fetched, it is one well within the realm of possibility.
In fact, some may claim that this analysis is nothing more than a scare-tactic. On the contrary, to see how Boulder County actually deals with families who own legal, nonconforming use properties we need only review two cases recently in the news: the El Vado property (June 26, 1999 Daily Camera) and the recent Eason case, where the Supreme Court found the County to be abusive, vexatious and stubbornly litigious in prosecuting a nonconforming use, awarding Mr. Eason $100,000 for his attorney fees.
In short, slope regulations may apply directly and immediately to existing homes in the mountains, as well as newly proposed construction, and then in a way which diminishes – if not wholly eradicates – their value.
For more information contact the Land Use Coalition at info@landusecoalition.org or call 303-666-7903.
Last updated June 04, 2001.
URL: http://landusecoalition.org/ncu_legal_discussion.htm
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