Navigating through Land Use Obstacles Carolyn Steffl and Tim Beaton Moses Wittemyer Harrison and Woodruff, PC Jim Jones District Manager South Adams County Water and Sanitation District SDA Conference 2010
Your Board has finally decided to go ahead with that rec center or fire station and found the money and the land . . . Now what?
Highlights of Talk • If the District is its own government, why can cities and counties make you jump over land use hurdles? • What issues should you think of in advance to avoid costly delays?
Identifying the Government with Jurisdiction over Land Use • Home rule cities or towns • Statutory cities or towns • Home rule counties • Statutory counties • Cities and Counties (i.e., Denver and Broomfield)
Home Rule Cities and Towns(and Denver) Colo. Const. Art XX, sec. 6 • “It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters.”
Statutory city or town • Sec. 31-23-101, et seq., C.R.S Counties • Sec. 30-28-101, et seq., C.R.S. • Home rule counties – Colo. Const. Art. XIV, sec. 16 City and County of Broomfield • Colo. Const. Art. XX, sec. 10
Some Key Cases • Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001) • Tri-State Generation & Transmission Ass‘n v. Bd. of County Comm'rs, 42 Colo. App. 479, 600 P.2d 103 (1979). • Telluride v. Lot Thirty-Four Ventures, 3 P.3d 30 (Colo. 2000)
Example Project Water and Sanitation District building a lift station on property which is located ½ within Commerce City (home rule city) and ½ within Adams County
Get everyone to the table! • Planning department • Engineering department • Building department • Fire and safety department/district • Water and sanitation department/district • Finance (bonds) • State (CDPHE, State Engineer, etc.) • Local Health Agencies • Other: urban drainage, Dr Cog, CDOT, Corp of Engineers
Permitting • Earthmoving • Grading • Building • Street Cut
Expect the unexpected • What to do when you have approvals needed, but objections arise later? • Examples: • 72nd Street infrastructure • DIA Facility • Sable Reservoir
Zoning/PUD/Master PlanLocation and Extent Approval The best-laid schemes o’ mice and men going aft a’gley: “To a Mouse” by Robert Burns
Zoning • Is the proposed use permitted under the applicable zoning/PUD or Master Plan? • Public improvements not allowed under all zoning classifications (yet see whether “public use” is included – e.g., “agricultural”) • Additional restrictions or conditions – height, set backs; curbs and paving; storm drainage.
Some Key Cases • Clark v. Town of Estes Park, 686 P.2d 777 (Colo. 1984) • La Plata County Commissioners v. Board of Adjustment of the City of Durango, 768 P.2d 1250 (Colo. App. 1988) • Colorado Springs v. Securcare Self Storage, 10 P.3d 1244 (Colo. 2000)
If Zoning Change is Required - • Is the proposed use consistent with the surrounding neighborhood? Comprehensive plan? • Add 3-6 months for application and hearing process.
Special District Public Improvement • Special District v. County
Location and Extent Approval • § 30-28-110(1)(c) • Allows Special District Board to override County disapproval of District project; • Boulder Board of County Commissioners v. Hygiene Fire Project District, 221 P.3d 1063 (Colo. 2009) • § 24-67-106(3)(b), C.R.S. • But see Metropolitan Denver Sewage Disposal Dist. V. Commerce City, 745 P.2d 1041 (Colo. App. 1987)
House Bill 10-1368 – unsuccessful. • Future legislation?
Work up-front with your town or city and county representatives to amend and modify zoning and PUD to allow for planned (and unplanned) special district facilities and projects.
Subdivision Regulations • § 30-28-133,C.R.S. • § 31-23-201, C.R.S.
Alternatives to Subdividing • Exception/exemption for public projects • Exception for specific project • Easements
1041 Permits • Areas and Activities of State Interest Act, §§ 24-65.1-201, et seq., C.R.S. • Requires developers to obtain permits before developing property in areas of state interest or undertaking activities of state interest • Municipalities and Counties are authorized to designate areas of state interest and activities of state interest and then to administer permitting development in those areas. §§ 24-65.1-201, -203 & -301, C.R.S.
Areas of State Interest • Mineral resource areas • Natural hazard areas • Areas containing, or having a significant impact upon, historical, natural, or archaeological resources of statewide importance • Areas around key facilities in which development may have a material effect upon the key facility or the surrounding community § 24-65.1-202, C.R.S.
Activities of State Interest • Site selection and construction of major new domestic water and sewage treatment systems and major extension of existing domestic water and sewage treatment systems • Site selection and development of certain solid waste disposal sites • Site selection of airports or rapid or mass transit • Site selection of arterial or collector highways and interchanges • Site selection and construction of major facilities of a public utility • Site selection and development of new communities • Efficient utilization of municipal and industrial water projects §24-65.1-203, C.R.S. (*not exhaustive list)
Key Cases • Tri-State Generation & Transmission Ass'n v. Bd. of County Comm'rs, 42 Colo. App. 479, 600 P.2d 103 (1979). • Denver v. Bd. of County Comm'rs, 782 P.2d 753 (Colo. 1989) • Colo. Springs v. Eagle County Bd. of County Comm'rs, 895 P.2d 1105 (Colo. App. 1994) • Dept. of Transp. v. City of Idaho Springs, 192 P.3d 490 (Colo. App. 2008)
How to address 1041 Regs • Participate during drafting or seek amendments • Consider IGA • Define scope of permitted issues broadly • War stories from the audience
Other hurdles to be aware of: (summarily discussed) • Notice to Holders of Mineral Rights pursuant to §24-65.5-103, C.R.S. • Wetlands or 404 permit regulations • Need to Amend Service Plan
For More Information, check out: • Local Government Regulation Using 1041 Powers, Colorado Lawyer, Joseph B. Dischinger (Dec. 2005) • Local Zoning and Building Regulation of Other Governmental Entities, Colorado Lawyer, W. Paul Eckman (Nov. 1991) • Land Use Planning in Colorado, Colorado Department of Local Affairs, dola.colorado.gov/dlg/resources/publications.html