Pitkin Committee Growth Advisory Committee Recommends New Land Use Concepts for County

A report authored by a coalition of locals aims to push Pitkin County’s land-use code toward smaller, more energy-efficient homes that function as houses and not “micro-economies.”

The Community Growth Advisory Committee presented their 70-page report to a joint session of the Board of County Commissioners and the Planning & Zoning board in early June. The report lays out a series of actions the county could take to change the land-use code, though no formal action or decisions were made at the work session. 

The commissioners formed the 26-person committee in July 2022, following up on climate goals set by the county in 2019. The committee met 21 times over 10 months, working on a report for the county to advise on how to manage impacts of growth and development, align community values, and meet climate action goals — the No. 1 priority. Residential buildings are one of the top polluters in the region, just behind vehicle traffic. 

The report broke down 14 areas of focus for the board to consider their recommendations, including: floor area ratio, square footage cap, tiering system, performance standards, development standard, growth management quota system, square footage quota system, transferable development rights (TDRs), expanded TDR concept, zoning overlay/rural area, administrative policies, affordable housing solutions, mitigation/impact fees, and redevelopment. 

The proposed changes would work in conjunction to streamline permitting processes for houses in the lowest tiers of square footage for allowing new development.

According to the report, the average home size in Pitkin County is about 3,250 square feet. The report suggests allowing up to 5,750 square feet on new homes by right, then cap square footage at 9,250 square feet within the Urban Growth Boundary and up to 8,750 square feet in unincorporated Pitkin County. Currently, the square footage limit is 15,000 square feet. 

Allowing larger houses within the Urban Growth Bound boundary than in rural areas sounded strange to some of the commissioners, to which Miracle said, “It just goes to where big belongs. Because of the impacts that tend to come with big, having them nearer to infrastructure, nearer to paved roads, just nearer to services. It makes the most sense to them there.”

The report also recommended multiple avenues to promote affordable-housing projects. One strategy included looking at including affordable housing outside of the urban-growth boundary, for some local workers to be closer to the large rural homes at which they might be employed to cut down on vehicle miles traveled. 

Another major component of the report is the changes it suggests to the county TDR process. Among many other changes, the ratio of sending to landing TDRs for houses larger than the by-right 5,750 square feet would change. Instead of the former 1:1 ratio, a landing TDR up to 1,000 square feet would be 1.5:1, or 1,500 sent square feet would land as 1,000 square feet. And more than 1,000 square feet would be 2:1, or 2,000 sent square feet would land as 1,000 square feet. 

The TDRs would be transferred in 500-square-foot allotments instead of the current 2,500 square feet (one TDR = 500 square feet). And 10% of any TDR sale would have to go to energy-efficiency updates. 

And the report recommends changing the county’s zoning to a five-zone map, with certain restrictions on special-use permits in the most rural zones. 

Governor Vetoes Problematic “Right of First Refusal” Bill

Gov. Jared Polis vetoed a bill that would have given local governments a right of first refusal to purchase certain multifamily properties listed for sale. The Democrat sided with business interests that have been pressuring him to reject the measure, angering the legislation’s Democratic sponsors in the General Assembly. 

House Bill 1190 was aimed at boosting affordable housing options across the state by giving municipalities and counties a leg up in purchasing properties and converting them into publicly owned affordable housing units. The right of first refusal would have applied to residential properties built more than 30 years ago with five units or more in rural areas and 15 units or more in urban and suburban areas.

“I support local governments’ ability to buy these properties on the open market and preserve low-cost housing opportunities, but am not supportive of a required right of refusal that adds costs and time to transactions,” Polis wrote in a letter explaining his veto. “Additional incentives or policy levers such as a notice requirement or financing mechanisms for cities could be used to further encourage local governments, and I would be supportive of this kind of approach.” The governor said, however, that he is “wary of placing more pressure on the market that could raise housing costs with this approach.”

All four of the bill’s prime sponsors — Democratic Sens. Faith Winter and Sonya Jaquez Lewis and Democratic Reps. Andrew Boesenecker and Emily Sirota — released a remarkably fiery statement Tuesday night lambasting the governor.

“The governor has sided with the interests of private equity, hedge funds and their powerful corporate lobbyists over and against the affordability concerns of people in our state,” the statement said. “It should be alarming to all of us that the governor has failed to usher these proven affordability measures across the finish line.”

The statement also criticized the groups that called for the bill’s veto, specifically Colorado Concern, the Colorado Real Estate Alliance, the Colorado Bankers Association and the Land Title Association of Colorado, accusing the groups of either not engaging in debate over the policy or negotiating in bad faith. 

Adam Burg, vice president of government affairs for the Denver Metro Chamber of Commerce, said in a statement Tuesday before the veto was announced that the legislation would only “add complexity and red tape to real estate transactions” by slowing down how fast eligible properties  can be listed and potentially preventing them from being offered on the open market for two months. The chamber said the legislation represented a breach of private property rights by forcing owners to accept a less advantageous offer. 

Federal News: Supreme Court Upholds Private Property Rights

In early June the Supreme Court issued two favorable decisions upholding private property rights. Read NAR's reaction to the two victories.

In Tyler v. Hennepin County, an elderly homeowner lost her condo to foreclosure and alleged that the county violated the constitutional ban on takings without just compensation when it kept the excess proceeds from the state sale of her property that exceeded the tax debt owed. NAR, along with the American Property Owners Alliance and the Minnesota REALTORS®, filed an amicus brief in support of the property owner's entitlement to the surplus equity, arguing the state statute effectuates an unconstitutional taking of private property under the Fifth Amendment. In a unanimous holding, the Court held that the homeowner had plausibly alleged a violation of the Takings Clause. "History and precedent dictate that, while the County had the power to sell Tyler's home to recover the unpaid property taxes, it could not use the tax debt to confiscate more property than was due. Doing so affected a "classic taking in which the government directly appropriates private property for its own use.""

In Sackett v. Environmental Protection Agency (EPA), two Idaho homeowners fought to develop a lot near a lake, but the EPA prohibited them from moving forward, stating the land was protected wetlands under the Clean Water Act (CWA). The "significant nexus" test was applied, which looks at whether there is a "significant nexus" between the wetlands and waters that are covered by the CWA, and whether the wetlands "significantly affect" the quality of those waters. The Court held in favor of the property owners, rejecting the "significant nexus test" and narrowing the definition of what constitutes a wetland under the CWA. In rejecting the broader view held by the EPA, the Court stated that the CWA applies only to wetlands that are "as a practical matter indistinguishable from waters of the United States." "By the EPA's own admission, nearly all waters and wetlands are potentially susceptible to regulation under [the significant nexus] test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt." NAR is a party to ongoing litigation as part of a larger coalition seeking to stop a "waters of the United States" (WOTUS) rulemaking based on the significant nexus test and on a broader definition of jurisdictional wetlands. This recent decision will likely impact the future enforcement of that regulation and the outcome of that litigation.