A Slippery Slope

Ann Mygatt and other owners of mountain property in Boulder County are literally fighting an uphill battle.

After a harrowing drive up a one-mile stretch of the steep and narrow Nancy Mine Road, Mygatt and her son arrive at a clearing where she hopes her future home will stand. Mygatt's land, downhill from the mining road in Fourmile Canyon, is where she's been planning to live after she retires from her career as a divorce attorney. She has envisioned a 3,000-square-foot home on the lot, where she would be close to her son, Brian, who is trying to build a house 300 yards up the road, and to another son, whose completed home faces the back of Sugarloaf Mountain.

But her dream home might remain a fantasy if the Boulder County commissioners approve new regulations that would limit development to 5 percent of the lot area or 2,200 square feet, "whichever is more restrictive." The home itself could be only 1,800 square feet spread out over two levels, with a 400-square-foot driveway. The rules set the maximum space for a garage at 380 square feet and the well and utilities area at 70 square feet. And the rules prohibit construction on land that has a slope of 30 percent or more--which much of Mygatt's land is considered to have.

Since learning about the new rules, passed by Boulder County's planning commission in January, Mygatt has found herself in the center of a classic Western debate between private property rights and environmental interests. According to the regulations, their purpose is to "protect people and property from the potential hazardous conditions associated with development on steep slopes," including fire, rock slides, mud slides, erosion and flash flooding. The charred trees and barren ground on Sugarloaf Mountain in Boulder Canyon serve as reminders of fire danger on sloped property: Ten years ago, a garage fire caused devastation from which the mountainside has still not recovered.

Of the 3,000 to 4,000 vacant mountain lots remaining in Boulder County, up to 2,000 could be affected by the regulations, according to Dale Case, a planner with the Boulder County Land Use department. Land that is deemed "physically suitable" for a proposed development would be exempt from the building regulations, as would development that "retains the open natural characteristics of the site and aesthetic qualities of the area as a whole."

Those criteria, Mygatt says, are entirely subjective, and she has no assurance that her property will meet them. She says she is challenging the regulations because government officials are crossing the boundary separating their authority from her property rights. She claims people weren't properly notified of the proposed changes. The only warning residents had--and the only warning the county is legally required to provide--was a notice printed in a Boulder newspaper. Mygatt has mailed letters to hundreds of property owners informing them of the possible regulations.

Fifty residents in Pinebrook Hills, a 380-home mountain subdivision just west of Broadway in Boulder, are also organizing against the regulations. After learning of the proposed rules, the residents flooded the land-use department with so many calls that the county had to hire a temporary employee to take messages. The employee was reportedly in tears by day's end.

The Pinebrook Hills resident responsible for organizing her neighbors against the restrictions says many people have owned empty land in the subdivision for more than two decades and were hoping to live off the sale of their property after retirement. In another instance, a man "has lived up here for 36 years and has paid taxes on the vacant land next to him so he could save it for his daughter someday. If they pass this restriction, he's going to end up having a piece of land that's valueless," says the resident, who asked not to be named. She says fear of the potential restrictions has sent property owners scrambling to sell their land before the rules take effect and has led others to get their building permits approved so they can add that spare bedroom or garage before it's too late.

The Pinebrook Hills property owners have sent numerous e-mails and letters, hoping county officials will reconsider the regulations. Boulder County commissioners originally planned to vote on the restrictions this month but have now postponed any decision until May, after an advisory committee made up of property owners both for and against the rules has had a chance to provide them with more information.

The delay is worrying people like Sierra Club member Kirk Cunningham, who is all for the regulations. A House bill that would prohibit local governments from imposing such regulations is currently under consideration in the Senate. Cunningham wrote a letter to the Boulder County commissioners, urging them to approve the rules "at the earliest possible opportunity."

Boulder County spokeswoman Jana Petersen claims that not much will change if the regulations are adopted, saying the proposal is merely an attempt to codify a practice that's already in place. The county instituted a site-review process for residential development in 1993 in which the county examines each new site before issuing a building permit.

"If you have a lot in the mountains, you always go through a site-plan review in which planners evaluate the steepness of the slope and place conditions on the building permit," Petersen says. Formalizing the site-review rules would warn homebuilders that the slope of their property will be a factor in getting approval to build, she says.

If Boulder adopts the slope regulations, it will join 21 other Colorado counties that have geological-hazards regulations. Developers in Pitkin County (home of Aspen and Snowmass), for example, are prohibited from building on property with slopes of 30 percent or more. Boulder's move to put the regulations on the books was spurred by mountain residents' complaints about the dangers posed by new development upslope. Naomi Rachel is one of those residents.

"Over the years, the county and most of the people who live in the mountains have noticed the problems associated with developing on steep slopes: the erosion, the visual impacts and the fire danger," says Rachel, a Fourmile Canyon resident and head of Residents Against Inappropriate Development. Since it formed in 1995, RAID has loudly opposed the construction of several mountain homes ("Karma Crash," December 18, 1997). Rachel says the letters Mygatt sent are stirring up trouble where there is none.

"A house is still a permitted use under the proposed rules. This is a major war over nothing. What the opponents to these regulations can't grasp is that the rules won't stop a person from building on a single lot, but it will prevent people from building monstrous houses that they'll turn around and sell to make a quick buck," Rachel says. "We all need regulations to live together. People want to do whatever they want with their property, but it impacts the people who live downhill from them. What about their rights?"

That's the question county commissioners are grappling with. "Some people think having property rights means they can do whatever they want with their property. That's not the case," says County Commissioner Ron Stewart. "Many of the sites that are problematic were never intended as housing sites. They were mining sites, and the only way to get there is to cut down vast amounts of trees. I can't, in good conscience, say, 'Bring it on.'"

David Eisenstein, a Boulder land-use attorney, says he's heard that rhetoric before. "The county says it doesn't want inappropriate development in the mountains, but really, they'd rather eliminate development in the mountains altogether," he says. "No one wants to see over-development in Boulder County, but people who have bought property want to make reasonable use of it." Eistenstein says the county adopts regulations that "on their face seem like a reasonable set of standards, but they can be subjectively interpreted, and the property owner can't predict the outcome. Because there's no predictability to the system, it makes it all the more onerous."

The slope regulations are part of a growing body of land-use regulations, Eisenstein says. Even Case, who has worked in the land-use department for six years, says that each year, several amendments are made to the land-use code. The county recently passed regulations that would require wildlife studies to be conducted before certain land can be developed.

If the county adopts the slope regulations in May, Eisenstein predicts, property owners will sue the county. Mygatt says it's an option she'll consider. And she won't be the first: Since 1993, when the county started evaluating residential land in its site-review process, property owners have filed four lawsuits against the county over land-use matters. The county has won one case; the three others are pending.

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