Navigating through Land Use Obstacles

Carolyn Steffl and Tim Beaton Moses Wittemyer Harrison and Woodruff, PC

Jim JonesDistrict 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 TalkIf 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 UseHome rule cities or townsStatutory cities or townsHome rule countiesStatutory countiesCities 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

CountiesSec. 30-28-101, et seq., C.R.S.Home rule counties – Colo. Const. Art. XIV,

sec. 16

City and County of BroomfieldColo. 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)

Land Use Checklist

Stories of Land Use Obstacles

Example ProjectWater 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 departmentEngineering departmentBuilding departmentFire and safety department/districtWater and sanitation department/districtFinance (bonds)State (CDPHE, State Engineer, etc.)Local Health AgenciesOther: urban drainage, Dr Cog, CDOT, Corp

of Engineers

PermittingEarthmovingGradingBuildingStreet Cut

Expect the unexpectedWhat 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

ZoningIs 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?

BE PROACTIVE!

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 SubdividingException/exemption for public projectsException for specific projectEasements

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 CasesTri-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 RegsParticipate during drafting or seek

amendmentsConsider IGADefine scope of permitted issues broadlyWar 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 regulationsNeed 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

Questions?