Many landowners wondering whatever happened to the power of the people?

BOULDER — They run one of the state's larger institutions — one with an ever-increasing revenue flow that doesn't show any signs of slowing.

They make more than $50,000 a year.

They are the final word in areas ranging from trash and transportation to land use and law enforcement.

One of them even has a second job running the county's powerful open space department.

If they choose to do so, they only have to work three days a week.

And, if history is any indication, the only opponent capable of beating them is the state's term-limit law.

Boulder County's three commissioners — Paul Danish, Ron Stewart and Jana Mendez — govern more than a quarter-million people and oversee a government that takes in and spends $150 million per year.

Some say the three do a little too much governing — particularly when it comes to land use decisions.

When commissioner Ron Stewart took over as the open space director, local banker and state Republican Party chief Bob Beauprez declared Boulder County now has "as close to a dictatorship as we allow in this country."

One of their biggest critics, however, is not even a Republican. She is a self-described "tax-and-spend liberal" who thinks the commissioners and an autocratic planning staff are micro-managing the property of others without accountability.

She also calls the county government a "political machine" that is running out of control.

Ann Mygatt, a Boulder lawyer whose plans for a 2,500-square-foot home in the mountains have been in the county's planning system for more than six months, has helped form a coalition to fight what she calls the "victimization" of property owners. The nonprofit Land Use Coalition — formed only two months ago — now has 1,000 people on its mailing list and received $12,000 in contributions in its first six weeks.

The coalition, according to Mygatt, is made up of "victims at the hand of bureaucracy.

"Boulder County has become the poster child for aggressive, abusive land-use policy," the outspoken Mygatt said. Apparently an increasing number of Boulder County residents of various political persuasions agree.

"We've got Democrats, Republicans, Libertarians, people from all walks," she said. "I've tapped into an amazing well of frustration, distrust and anger."

Mygatt admits her beef with county planners and politicians is minor compared to what she calls the "suffering" of other land owners. "My personal experience is that the site review plan (the county's process for approval) is cumbersome and unwieldy. It causes you a great deal of work on the front end."

According to Mygatt, it makes building a home much more expensive under rules enforced by bureaucrats working for politicians.

"They won't let you know what they want (during the process)," she said. "When you ask them, they tell you they'll know it when they see it."

Mygatt said that level of discretion gives county planners absolute power over almost every facet of building a home — location of the structure on the lot, number and size of windows, roof and building colors and neighborhood compatibility.

When property owners have differences with the county's planners, they can appeal to the county commissioners.

"The commissioners go to the site with planners and decide what your house should look like," she said. "They don't let you go along with them — you don't know what plans they are making for your home."

Commissioner Paul Danish said he, too, "has big problems" with not allowing property owners to go along on site visits, but said he can't do anything about it because courts have ruled such meetings would constitute hearings. If the land owner were allowed to join the site visit, those opposed to the project would have to be invited also.

Mygatt claims the system allows bureaucrats to needlessly "run up the cost of building" without accountability for their actions.

But that appears to be changing.

The Colorado Legislature this year passed a so-called "takings bill" that restricts the discretion of local planners. The new law requires the county to establish specific "governmental purposes" for restrictions placed on property owners and requires those restrictions to be proportional.

Boulder County lobbied against the law. The state's other 61 counties, all members of Colorado Counties, Inc., supported it. The Colorado Municipal League, which lobbies on behalf of local governments, took a neutral position.

And Commissioner Jana Mendez still doesn't like it.

"The Legislature is forcing us to put every little thing down in writing," she said. "It takes away our discretion."

"That's good," Mygatt said. "Boulder County is the reason this law was passed. This is forcing them to be reasonable."

Mendez sees the county as being a referee among often conflicting interests.

"We try to balance everyone's rights," she said.

That balance — or a lack of it — recently cost the county nearly $100,000 in legal fees, costs and interest when the Colorado Supreme Court sustained a lower court ruling that the county abused the property rights of Boulder-area property owner Bob Eason.

And, when Eason goes back to court to collect damages, the county's taxpayers will have to pay even more.

In sustaining both the trial court and an appeals court, the state's high court said the county was "abusive, substantially groundless, frivolous and vexatious" when it tried to make Eason move semi-trailers from his two storage businesses .

Eason, whose property was zoned commercially and who had the written permission of the planning department, used the trailers in place of permanent structures. He eventually moved in more than 100 of the trailers to his property, angering both neighbors and the county.

In one case, the county ordered Eason to move the trailers, but he refused and forced the county to take him to court. The county lost, and has spent five years appealing the case. In the other case the county initiated the lawsuit, which they also lost.

And Eason's lawyer says the commissioners' stance is going to cost them.

"We have (both) cases pending to determine damages," Boulder lawyer Joe French said . "It's not over yet."

Boulder courts are expected to hear arguments on those damages by sometime late this year, French said.

Even though the county lost at every level in court and faces six-figure punishment, it still believes it did the right thing.

"The county was responding to neighborhood complaints," Mendez said. "Again, we tried to balance people's rights. I still think it was right."

Mendez's view doesn't surprise Mygatt.

"It just shows how out-of-touch they really are," she said.

Stewart said the county is in the position of making "close calls" on issues and can expect to lose occasionally. He said the commissioners must also listen to those who want to restrict growth and property even further.

"Some people say we don't do enough," he said.

Danish said the commissioners are just staying in step with the wishes of the voters. He said surveys conducted by the county indicate residents "want government to take a vigorous position about protecting the environment" and called the county's stance "very much reflective of popular opinion about land-use policy."

"Our actions reflect mainstream thoughts," he said.

The courts, however, have consistently ruled in favor of constitutionally-guaranteed property rights over public opinion.

Mountain property, much of it former mining claims, has been at the center of the land-use dispute.

Although the county cannot refuse to allow a property owner to build — and in fact has not rejected a site plan and has approved some 1,400 homes since the process began six years ago — it can make it tough and more expensive.

"These lots were drawn as mining claims, not house lots," Danish said. "They were staked out according to where the ore was, not based on where to put a house. We have a duty to take a close look at those lots."

Danish said issues such as location, building height and compatibility are critical in maintaining the character of the mountain areas. He said road and home construction can cause severe environmental damage if they cause flooding or mudslides and can affect the property of neighbors.

Danish called allegations that the county is keeping people from building on the 3,000 or so undeveloped mountain lots west of Boulder "a very deliberate misrepresentation" promulgated by Ann Mygatt and the Land Use Coalition.

"We do not have the ability to stop them from building a house," he said, "but we can restrict the way it is built."

Danish said allowing "willy-nilly construction" on mountain property will cause problems among neighbors in the future when homeowners find themselves "in each other's face."

While the county maintains it can and should have strict land-use policies, Mygatt said she could sum up the feelings of the Land use Coalition in one word.

"Enough."

And, as long as there is undeveloped property in the county, those arguments are sure to continue.

Copyright © 1999 The Times-Call.
Reprinted with permission.
July 15, 1999

For more information contact the Land Use Coalition at info@landusecoalition.org or call 303-666-7903.

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