Cover Memo
March 12th Meeting Notice
Housing Master Plan
Zoning for PUD site design standards

“Double standards in practice are the unavoidable price of universal standards of principle.”  Samuel P. Huntington

With double standards in practice all around us, one must conclude our public agencies are led by principled people, however, no one knows what universal standards of principle guide them.

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I sat in for 4 hours yesterday evening with members of the Planning Commission, members of the Office of Community and Development Services, two attorneys and several Elbert County citizens, in an edit review of the proposed Master Plan and Zoning documents up for Planning Commission approval.  As my previous posts indicate, I had been laboring under the impression that zoning regulations as governing law, should be fairly objective and definite, and that master plan contents as advisory recommendations, should be where one finds more general development guidelines.  Also, I’d been under the impression that the question of advisory rules vs. mandatory regulations was meaningful.

In practice, no such legal theories apply in Elbert County.  The whole business is purposefully amorphous.  Developers may get a general sense of county expectations from these planning documents, but the last thing the Planning Commissioners seem to want is a definite set of standards.  They want to negotiate with developers and horse-trade with everything on the table.  Arguments for regulation vs. advice are conceived and applied on an ad hoc basis to fit circumstances as the need arises and the necessity to persuade the BOCC by the Planning Commission develops.  Everything is arguable.  Standards are flexible.  Accountability to regulation is largely, if not purely, subjective.  And the whole business is a gold mine of raw material to make work for lawyers.

I’m not saying this is right or wrong, and I’m not saying that the proposed plan and zoning work product isn’t well thought out.  The results, however, are full of language that is uncertain, wildly arguable, easily corruptible, and capable of interpretations to fit pretty much any purpose.  There are even statements that provide for application denial when all provisions of the zoning laws have been satisfied.

Please pardon my naivete’, maybe this is just the nature of public planning.  One thing is for sure though.  This body of regulations is not, and apparently never has been a source of protection for property rights and/or individual liberty.  One seeking to protect those values will have to rely on other authorities.

“The idea of public access has popular and populist appeal. But the reality is that the actual use of any resource—whether pursuant to public access, in the name of state ownership, or pursuant to a private property right—is use by individuals. Those individuals, in whatever capacity they are acting, will have varying incentives with respect to use, management, and conservation of the resource. Experience demonstrates time and again that public access regimes pose significant risks for the long-term management and preservation of the resource.”

James Huffman

Have you ever heard of the Elbert County Open Lands, Parks and Trails Plan ? I had not heard of it until this week, and I doubt that more than a handful of voters and property owners know about it. Looks like it’s about to become regulatory law in Elbert County.

It’s purely a guess, but I would estimate the value of the takings contemplated by the new regulations discussed in the previous blog item, plus the value of the takings contemplated in the Elbert County Open Lands, Parks and Trails Plan, runs into the hundreds of millions of dollars.

See:

C.R.S. 30-28-106 Adoption of master plan – contents
“The master plan of a county or region shall be an advisory document to guide land development decisions; however, the plan or any part thereof may be made binding by inclusion in the county’s or region’s adopted subdivision, zoning, platting, planned unit development, or other similar land development regulations after satisfying notice, due process, and hearing requirements for legislative or quasijudicial processes as appropriate.”
(Section 3 (a))

And See:

Proposed: EC Zoning Regs Section 16 -PUD New Section “D” Site Design Standards for Residential Developments
“These Design Standards are intended to work in conjunction with the Elbert County Master Plan to help ensure the goals and objectives of the Master Plan are addressed by residential developments.”
(page 1)

And See:

Proposed: Elbert County Master Plan for Housing
“Intent and Purpose of Conservation Communities:
Purpose:
8. To further the goals and policies of the Elbert County Master Plan and the Elbert County Open Lands, Parks and Trails Plan;”
(page 6)

Now Listen:

Thayer and Miller Discussion on regulatory vs. advisory plan

And Listen:

Thayer on Advisory vs. Regulatory Plan
(at close of 2/26/09 Planning Commission Meeting.)

My take:

The majority of planning commissioners and county planners seem to treat this question of a regulatory master plan as de minimus, and perhaps even subject to their own whim.

I don’t think so.  I think the above statute is pretty clear on the question, and the construct of housing master plan and PUD zoning modifications they have proposed, and are in the process of conducting public hearings on, clearly fits the terms of the statute.

They say that the proposed regulations are the result of community input and everyone should follow them.  Really?  What community?  How many people were actually heard on the substance of these questions?  Was there a vote or a broad-based canvas of the community?

No.  This whole thing looks like minority rule by determined believers in property-taking for their own image of the “public good,” and they’re quietly in the process of stealing our rights out from underneath us.

I would say get on the phone right away and tell the planning commission to keep their hands off our property, but the odds are you’d just be talking to a zealot who wouldn’t hear you anyway.

We’re going to need a real public vote in the next election on this question.  We’re going to need to put this on the ballot if we have any hope of protecting ourselves from this bunch.

Ric Morgan on government “taking”   (1 mb, mp3)

According to Mr. Morgan if county regulations require a property owner to give property, in this case land rights or water rights to Elbert County, it is a government taking prohibited by the 5th Am to the Constitution.

As of this writing, the proposed Master Plan section for Housing and the proposed Zoning Regulations for Planned Unit Development, require developers of 5 houses or more to convey 20% to 40% of their property to a third party who is acceptable to the Elbert County Planning Commission, or to Elbert County itself.

“All residential developments which create five (5) lots or more shall be zoned as Planned Unit Developments, Agricultural, or Agricultural-One. A minimum of forty percent (40%) of the “Gross Acreage” of the site shall be permanently dedicated open space, within residential developments, except those developments which are proposing ten (10) acre or larger parcels, which shall have a minimum of twenty percent (20%) open space.”

(Proposed Master Plan, pg. 4)

“8.) Open space should be conveyed to Elbert County, a metropolitan district, or not-for-profit entity, which can demonstrate to the County that it possesses the management capabilities and resources required to administer and perpetually defend the open space, for its intended purpose.
9.) Any land dedicated to Elbert County for regional parks or other open space shall include water rights in a sufficient amount to maintain vegetation and provide adequate fire fighting water supply.”

(Proposed PUD zoning regulations, pg. 11)

To the property holder who must give that property away, whether the property goes to Elbert County or to a third party conservation trust of some sort, the conveyance is really a distinction without a difference.  In both cases, the property owner is dispossessed of their property as a result of government action.

A government-ordered dispossession of property as a condition of enjoying the economic benefit that attaches to ownership of that property would seem to be a taking regardless of who the recipient is.

Conflict of Interest Issue  (< 1mb, mp3)

To add insult to injury, the proposed Master Plan and Zoning regulations have the Planning Commission and the BOCC sitting in judgment over re-zoning applications that may include Elbert County as an interested party (grantee of property rights) in the outcome of such transactions.

ELBERT COUNTY
Agenda
REGULAR PLANNING COMMISSION MEETING
HEARING ROOM
215 COMANCHE STREET, KIOWA, CO 80117
February 26, 2009 @ 7:00 P.M.

EC Zoning Regs Section 16 -PUD New Section “D” Site Design Standards for Residential Developments

Elbert County Master Plan for Housing

Comments

Last October 8th, the Elbert County Planning Commission intentionally postponed discussion on a set of amendments to the county master plan that had been requested by the Board of County Commissioners, to a date when that Board of County Commissioners would be out of office.

As one Planning Commissioner said at the time, “I would think we should continue it at a later date to where we don’t put it in front of the County Commissioners and have them approve it.”

This was not a decision on the merits of the question based in factual analysis and relevant law.  It was a procedural tactic used to enforce a prejudice of the Planning Commission against the Board of County Commissioners elected by the people of Elbert County.

It is the BOCC who carry the voters franchise, not the appointed members of the Planning Commission.

I didn’t go looking for a reason to distrust the governance of the Planning Commission, but there it was, plain as the nose on my face. That night in October, they clearly demonstrated, to applause and apparent jubilation,  an ability to supplant the rule of law with their own prejudice.

Members of the Planning Commission consider themselves to be the enforcers of the master plan.  Fair enough, however, they have shown that they are not to be trusted with regulatory authority.  That authority has traditionally been vested solely in the Board of County Commissioners.  These proposed planning documents should be expunged of any language that could be construed to change that precedent.

The problem the county faced with the existing master plan is that legislation was passed, and a court applied the rule to Elbert County, that master plans that reference zoning regulations become, by default, regulatory.  The last BOCC attempted to remedy this situation – in effect what became a defect – by expunging references from the master plan to county zoning regs.  The Planning Commission impeded the BOCC in accomplishing this.

Now comes a new master plan element that specifically references zoning regulations.  If the master plan is to become regulatory, it is a decision that the voters of Elbert County should make.  Without voter approval we have regulation without representation.

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On page 5 of the proposed Elbert County Master Plan Housing, item 3 begins with, “Land for open space shall be dedicated to Elbert County…to administer and perpetually defend the open space for its intended use.”

On page 11 of the proposed Section 16, PUD New Section “D” of the Elbert County Site Design Standards for Residential Developments, item 8 begins with, “Open space should be conveyed to Elbert County…,” and item 9 follows with, “Any land dedicated to Elbert County for regional parks or other open space shall include water rights[.]”

The Planning Commission seeks to have regulatory approval authority over developments that also include granting land and water rights to the county.  This is a clear conflict of interest.

Neither the Planning Commission nor the BOCC should have regulatory authority over development transactions where the county has a property ownership interest at stake as part of the deal.

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On pages 8 and 22 of the proposed Section 16, PUD New Section “D” of the Elbert County Site Design Standards for Residential Developments, regulations are contemplated to prohibit barbed wire on the top and bottom strands of 3-wire fencing.  One of the goals of the plan is to preserve the rural nature of Elbert County, and part of that rural nature involves cattle fencing.  This regulation would adversely affect acreage available for cattle production and seems counter to the preservation of the rural nature of the county.

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On page 16 of the Elbert County Master Plan Housing document, item 1 specifies conditions under which the BOCC may consider a variance to the plan.  This would unnecessarily limit BOCC discretion.

Similarly, on page 2 of the proposed Section 16, PUD New Section “D” of the Elbert County Site Design Standards for Residential Developments, the Planning Commission seeks to codify it’s practice of last October of unilaterally determining when the BOCC may hear a planning issue by limiting the BOCC from holding a public hearing until the Planning Commission issues their recommendation.  Once again, this would unnecessarily impede BOCC discretion in their elected governance of Elbert County.