HomeMy WebLinkAbout991748.tiff September 17, 1999
Attention: Board of County Commissioners
Re: Issues for the Interim Committee on Growth and Development
•
Dear County Clerk and Recorder,
During the last session of the Colorado State Legislature, the Interim Committee on
Growth and Development was created to study issues relevant to those subjects.
This letter is sent in the hope that participation in the work of this committee by
county governments and their elected officials can be fostered and encouraged.
The following letter was recently sent to all members of the Colorado Legislature,
and contains ideas which may be of interest to county leadership throughout the state.
Please request that your county commission read into the minutes and discuss these ideas as
part of the regular agenda at your next available meeting. Urge them to communicate with
your state representatives about the direction of future legislation.
Comments may also be directed to Committee Chairman, Senator Bryan Sullivant,
by phone (303) 866-4873, internet - bsulliva@sni.net, or mail - State Capitol, 200 East
Colfax Avenue, Denver, CO 80424.
The group promoting this discussion, Common Sense Alliance, believes that all land
use regulation must have a basis in the Constitutional protection of individual rights, or risk
seriously eroding the established systems which provide all of us with our essential needs.
Individual members of our group have suffered serious economic and emotional hardships
at the hands of overzealous regulation and restriction of the use of private land.
Regardless of that personal toll, which we feel should never be borne by private
individuals at the hands of their government, our primary purpose in circulating this letter is
to help others use the experience we here in Pitkin County have gained about the negative
consequences of extreme land use restrictions.
Thank you for your consideration of this matter.
Sincerely Yours,
a /1 91(dire ell--
William G. Mohrman
Chairman, Common Sense Alliance
567 Twining Flats Road
Aspen, CO 816 .1
(970) 923-3578
travis@imaginedp.com
0„5" 101 yr/99
• 991748
TO: Colorado State Legislators
RE: Issues for the Interim Committee on Growth and Development
The passage last session of SB99-218, commonly called-the "Takings Bill"
represents an important first step in the restoration of the right to reasonable use of private
property. Unfortunately, forces working to reduce or eliminate the presumption of a right to
reasonable use have led to the development of techniques far more sophisticated than the
type of abuse addressed in this legislation.
Land use regulation is clearly the purview of the state, and the application of that
power should allow the flexibility necessary to respond to specific local conditions.
However, it is generally assumed that the administration of land use regulatory powers by
the individual counties should be uniformly applied. For example, when the legislature
adopted Article _a5, Home Rule Counties, one area in which no expansion of discretionary
power was granted was Building and Zoning Regulations (30-35-201). Conversely, State
subdivision regulations (30-28-133) state that, "If at any time thereafter the board of county
commissioners adopts its own subdivision regulations for land within the unincorporated
areas of the county, such regulations shall be no less stringent than the regulations
promulgated by the Colorado land use commission under this subsection (IL"
In hindsight, 30-28-133 should probably have read, "such regulations shall be no
MORE stringent', and thereafter defined acceptable limits on the exercise of government
power over the subdivision of real property. Under current conditions, the degree of respect
for private sector development is defined primarily by the philosophical mindset of
individual county commissioners. The negative impacts of widely divergent land use
policies between counties is no longer hypothetical.
After 25 years of some of the most restrictive development policies in the United
States, Pitkin County has provided us with a living laboratory to assess the benefits of such
policies, and the effects generated in neighboring, and less restrictive, counties. Although
all of the effects have been exaggerated by the affluence of the ski resorts of Aspen and
Snowmass Village, the dynamics of the situation are clear. The curtailment of private
property rights, and development rights in particularly, is not just an assault on
constitutionally protected individual rights, but is also the catalyst in the steady degradation
in the ability of people to provide for their own needs.
In effect, in the counties of Eagle and Garfield where commissioners have
traditionally held a higher standard for respect of property rights, less restrictive land use
policies have resulted in a penalty imposed by the fleeing population of Pitkin County. The
refusal of Aspen and Pitkin County to accommodate population growth generated by their
own economic growth has contributed to massive inflation leading to an enormous and
largely ineffective public housing program. Private citizens have been subjected to
1
dislocations which spawn transportation problems, education funding inequities, and general
economic stress.
The issue is definitely a matter of statewide concern. Although nothing will restore
Pitkin County to a state of social balance and health, we can use the experience provided to
establish the need to set limits at the state level.
Efforts to correct the problem politically at the county level are impossible for both
emotional and practical reasons. The emotional basis for restrictions on the use of raw or
underdeveloped lands is as basic as the human resistance to change, reinforced by the
perception that land use regulations will somehow "preserve the community and protect the
environment".
The practical aspect of the political situation is that there are many more registered
voters who own fully developed property, and the economic incentives to restrict new
development are enormous. The possibility that a minority group, such as the owners of
potential development property, could prevail at the ballot box is very unlikely. It is not too
extreme to suggest that such citizens ought to be recognized as a suspect class qualifying for
protected minority status under civil rights law.
"Me courts have all but abdicated any role in restraining government power over land
use, and the result has been a degree of confidence that borders on arrogance in the drafting
of new legislation in Pitkin County. Again, we do not need to rely on hypothetical examples
to illustrate the extreme which has been reached.
Pitkin County is the home of a particularly onerous and abusive land use control
concept which relies on the Transferable Development Right (TDR) mechanism. The
concept is currently in practice in an ordinance which establishes a "Rural/Remote Zone
District", but it has become evident that there will be a significant expansion of the basic
idea to many other properties.
Keeping in mind the basic question of whether counties should be able to
substantially expand on land use powers adopted by the state, Rural/Remote provides
numerous points of comparison. Most of the criteria for properties subject to Rural/Remote
generally reflect the same areas of interest cited as the basis for the "1041 review" process.
In this respect the zone category itself is a virtual admission that many of the affected
properties would be able to satisfy that review process.
Only two of the criteria expand on 1041 review, and they are also the only two which
can be applied objectively independent of state mapping. In essence, a property above 9000
feet which is more than '/z mile from a winter maintained county road may have a dwelling
unit of no more than 1000 square feet on a footprint of 500 square feet. Many other
restrictions apply.
The language of the ordinance stating the rationale for the zone district is a case
study in manipulation and cynicism. For example, "Emergency access often becomes
limited and/or dangerous to emergency personnel when driveways exceed 1/2 mile in length."
No explanation has ever been given for why providing emergency services for residents in
a 1000 square foot dwelling alters this condition, so it is obvious the square footage
allowance was set low enough that there would be few or no applications to build, while
still allowing some use for the purpose of protecting the county from takings lawsuits.
The Rural/Remote ordinance also claims that "% mile has been established by
various wildlife experts as the limits of the 'zone of disturbance' created by development
relative to wildlife". In contrast, state law defining Powers of Local Governments
(29-20-104) establishes a standard of "Protecting lands from activities which would cause
immediate or foreseeable material danger to significant wildlife habitat and would endanger
a wildlife species." Pitkin County has elevated the rights of wildlife above that of the rights
of humans, even when no significant damage is even being alleged.
To further frustrate legal challenges, the ordinance also provides landowners with
one TDR per site, or per 35 acres. This aspect of the law requires that some other
landowner must buy said TDR, and seems to assume that the market value of a TDR bears
some relation to the value of the property which has been downzoned. The absurdity of this
portion of the ordinance is that owners of mining claims on sites totally worthless for any
development purpose have received windfall profits at the expense of developers faced with
the choice of buying a TDR, having their applications denied, or spending years and huge
sums in a courtroom.
The high cost, and highly uncertain outcome, of litigation may be the sole reason for
the survival of Rural/Remote. Many of the owners of developable parcels own remote
property precisely because it is all they can afford. Three citizens with sufficiently valuable
properties did file suit, but were only able to do so by leveraging that value for legal
services. The pressure to settle is enormous because the longer the case spends in the legal
process, the less they will have, even if they prevail. In their particular circumstance, local
government had made it known that it wanted to acquire the properties prior to the
imposition of Rural/Remote, and now wish to negotiate a land trade based on post
downzoning values. The use of government power to reduce the value of property wanted
for public acquisition borders on criminal activity, and is currently being practiced by a
subdivision of state government.
Pitkin County government is now starting the process of placing a cap on house size
for the purpose of creating a market for TDRs among those wishing to build above the cap.
This step is being sold as a method to "preserve" agricultural acreage in the most politically
palatable manner, by forcing all new construction to pay a disproportionate share of what is
essentially an open space expenditure. This will result in more inflationary pressures on a
heavily inflated residential market while forcing rural landowners to enter a TDR market
which may have no relation to the realistic value of their property, or the potential best use
of the land.
Rural/Remote zoning is presented as one specific illustration of some of the abuses which
have accumulated during years of indifference and/or hostility towards private property
rights, but there are many other problems with broad implications. It can be established that
3
the state has the responsibility to control the scope of county land use powers, and that
uniformity in concept is as important as flexibility in specifics. The time may have finally
arrived to make sweeping changes comparable to those initiated 25 or 30 years ago.
In addition to insuring that county land use powers do not exceed limits set by the
state, certain practices should be either specifically banned or severely limited.
The regulatory concept under 29-20-104 (f) "Providing for phased development of
services and facilities", should not be applicable to residential development, and any such
phasing requirements should be prohibited. It is imperative that natural fluctuations in
population be responded to without the imposition of artificial quotas. None of the
supposed benefits of this sort of phasing outweigh the social harm and economic distortions
which result.
No property should ever be downzoned for the purpose of creating a market for
TDRs by requiring their purchase to restore original development rights.
TDRs should never be a substitute for compensation for properties taken for public
purposes, even if the taking is partial.
Master plans must be required to assume a level of growth in excess of actual
projections, and a variety of housing types for different income levels must be allowed.
No property owner capable of satisfying the basic requirements of a building permit
should ever be denied the right to construct a residence.
The creation of the Interim Committee on Growth and Development could be the
ideal focal point for a true discussion of the proper relationship between government
regulation and the rights of individual citizens. It could also be the catalyst for the
continued erosion of the processes which have allowed most of us to provide for our own
needs without government subsidy.
This letter is sent in the hope that those legislators who understand the slakes will
become involved. with the process, and help direct the outcome. There is a great need to
reverse the perception that all governmental initiatives must necessarily result in the
acquisition of greater regulatory power.
Pitkin County is perhaps the most extreme example available of the unintended
consequences created by disrupting the ability of the private sector to respond to population
growth. If there are those in the legislature who are currently unaware of the great potential
for harm, encourage the Committee to hold hearings here, and thereby provide the
opportunity to hear some of the abuses suffered by our residents.
•
William Mohrman Jeffrey Evans
Chairman, Common Sense Alliance Treasurer, Common Sense Alliance
Box 3624 0268 Apache Trail
Aspen, CO 81612 Redstone, CO 81623
970 923-3578 970 963-4755
Hello