Hell, No, They Won't Grow
It's going to be a long, cold winter at the El Vado apartments.
The complex was originally a motel, built in the 1940s on the site of a former gold and silver mill in the canyon linking Boulder and Nederland; in 1975, El Vado was converted into nine apartments. A vintage neon vacancy sign still hangs on the ivy-covered main building, which is split into three units; three smaller duplexes are situated down a dirt road, abutting the roaring creek.
El Vado shows its age: The wiring is old, the walls are uninsulated and coated with lead-based paint, and the plumbing needs to be upgraded. And while the county's building code requires ceilings to be at least 7'6" high, the ones in the tiny apartments are between 6'8" and 7'2" high. The one- and two-bedroom units range in size from 450 square feet to 750 square feet and in price from $475 to $750 a month, utilities included. In Boulder County, that's affordable -- particularly when you throw in the outdoor amenities.
"A Slippery Slope,"
"A Growing Problem,"
Previous Westword articles
March 11, 1999
For mountain property owners in Boulder, the road home may be getting steeper.
By Julie Jargon
June 11, 1998
Opponents of urban sprawl threaten to take the issue straight to the voters.
By Stuart Steers
September 11, 1997
Colorado residents take the initiative in slowing growth.
By Eric Dexheimer
"A Slippery Slope,"
"A Growing Problem,"
Delphiniums and wild raspberries grow in abundance along the creek bed. The rushing water drowns out noises from the busy highway. It's a peaceful place to live, and convenient even for those who don't own cars -- buses stop along Canyon Drive for the four-mile trip into Boulder.
When the El Vado apartments went up for sale in 1992, Jim and Tara Parks jumped at the chance to buy the complex. Jim, now a real-estate broker, had moved to Boulder back in 1978 to study environmental design at the University of Colorado; Tara, who grew up in Colorado, is an architect. For two decades, the couple had watched as housing prices surged in Boulder County. Buying El Vado would allow them not only to live in the mountains, but to provide affordable housing so that others could, too.
The thirteen people currently living at El Vado include a floor installer, a waiter at the nearby Red Lion Inn, a builder who makes straw-bale homes and a graduate student. Doreen Fitzgerald moved in four years ago, when she was working two jobs and deeply in debt. "Since then, I've been able to eliminate one job, reduce all of my debt and pay off my car early," she says. "That wouldn't have happened anywhere else. El Vado has been a godsend, and the Parkses do everything in their power for us. Each summer, they throw a party for the tenants, and they give us gifts at Christmas."
Although the Parkses get no government subsidy for keeping the units affordable, they use HUD's definition of affordability to determine their rental rates, which they set 50 percent below the area median income. But while they keep rents low, they also want to improve their tenants' living conditions.
Boulder County won't let them.
In the 1970s, the mountains in unincorporated Boulder County were rezoned as a forestry district in which multi-family dwellings are not allowed. Structures that existed before the '70s, such as El Vado, were grandfathered in and deemed "non-conforming uses." Under the county's current land-use code, anyone wanting to modify a non-conforming structure -- whether in the mountains or on the plains -- must undergo a special-use review. As part of the review, the property must meet a "use of community significance" standard, in which its owner proves that the proposed modifications benefit the community.
In November 1996, the Parkses applied for a special-use review of El Vado. They didn't want to construct more buildings or even increase the square footage of the units on their property. They simply wanted to add insulation, raise the roof lines to meet code and offset the floor area lost to insulation by adding lofts above the living space. They presented their plan to the county's planning commission the following February; from there it would go to the three Boulder County commissioners.
Ardith Sehulster, chairwoman of the Boulder County Housing Authority, gave the plan her stamp of approval. In a March 26, 1997, letter to the commissioners, she wrote: "The Housing Authority is supportive of the El Vado renovation for the following reasons: to preserve affordable housing stock in the unincorporated county; to correct safety and health problems; and lastly, the social benefit of having diverse income groups living together."
Sehulster went on to remind the commissioners that the county's comprehensive plan, developed in 1978 to accommodate growth while maintaining the area's essentially rural nature, states that "a diversity of housing types and densities should be encouraged in order to assure decent housing for all persons. Rehabilitation of existing residential facilities should be promoted where feasible."
"Although the Board [of County Commissioners] in 1992 added the 'use of community significance' to the county's zoning regulations as a way to allow certain non-conforming uses to become conforming, the use was not intended to be a floodgate to allow most or all non-conforming uses to become conforming," wrote commissioners Ron Stewart and Jana Mendez in their decision. (Commissioner Paul Danish voted in favor of the Parkses.)
Even though the Boulder County Housing Authority considered the El Vado apartments affordable, the two commissioners continued, they didn't think the "handful" of rental units served "a significant socioeconomic need within the county, either taken as a whole, or with respect to a 'recognized community of interest' within the county."
The commissioners did leave one loophole: The renovated property would constitute a "use of community significance" if the Parkses put a clause in their deed promising to keep the apartments permanently affordable. But the couple would have to agree to use the commissioners' definition of affordability, not HUD's.
"If we let them control the rent, they could say $200 a month is affordable, and then we wouldn't be able to pay the bills and they'd run us out of business," Jim Parks complains.
"They're not committed to keeping those units permanently affordable," counters commissioner Stewart. "Just because the units are small doesn't mean the Parkses won't gouge the tenants for every penny they can."
The Parkses feel gouged by the county. They spent almost $10,000 on the special-use review process alone: printing and mailing letters to surrounding property owners to inform them of their intentions; authorizing engineering reports; having the land surveyed. Tara Parks spent days drafting the architectural plans for the units.
Another $2,500 went to the county for the time planners devoted to the case. "In order to start a site-plan review, you have to put down a non-refundable fee, then sign a contract saying you agree to pay every bill they send you," Jim Parks says. "Then you pay the staff to type rejection letters to you."
"The people who contribute to growth should pay for the processes related to it," insists Stewart. "The schoolteacher in Longmont who's lived in her house for thirty years shouldn't have to pay for someone's new mountain house in Boulder."
But like so many people at odds with the county, Jim and Tara Parks aren't trying to build a monstrous dream home. Their plans were far more modest. "We were just going to make a physical improvement, and that constituted an evil thing to them," Jim Parks says of the commissioners.
"We're not rich, we've never inherited money, we're not trust-funders," adds Tara. "We're just modest people who work hard for a living and want to do something for the community. We sold our two trucks to make the down payment, and we borrowed almost twice what we bought this for to do something responsible and bring it up to code."
Now those apartments may never meet code. And when winter arrives, El Vado tenants will just have to bundle up.
Wanting to control growth is nothing new in Boulder County, says Karl Anuta, a Boulder natural-resources attorney who's been trying a lot of land-use cases lately.
What's new is the number of residents complaining about the county's land-use policies. These critics charge that the three county commissioners are using well-intentioned land-use policies to prevent people from expanding their homes -- or even building at all. In fact, they complain, with the county's aggressive open-space purchases, the commissioners are pushing a no-growth -- not slow-growth -- policy.
As far back as the late 1950s, the City of Boulder tried to limit mountain development by adopting a "blue line" -- refusing to provide water or sewer service to homes and businesses above the elevation of 5,750 feet. Instead of contracting for city services, landowners had to install their own wells and septic systems. And in the late 1960s, in order to prevent growth on the outskirts of town, Boulder refused to provide water to any areas outside the city limits. But a developer in Gunbarrel, a plains town just north of Boulder, sued the city over that restriction and won. The Colorado Supreme Court ruled that since the City of Boulder held itself out to be a public utility to the unannexed area, it couldn't deny it water service.
"The city learned that the only way to control what goes on with the land is to own it, so they started the Open Space program," says Anuta.
The City of Boulder created its Open Space program in 1967, and Boulder County followed suit eight years later.
But Boulder officials didn't limit their growth-control efforts to buying up open land. In 1976, residents of the city approved the Danish Plan, Boulder's first slow-growth initiative. Named after then-Boulder city councilman Paul Danish, the plan capped the number of residential building permits that could be issued each year to 2 percent of the number of existing homes; in 1995, the city council lowered the limit to 1 percent a year.
Meanwhile, the county was putting its own limits on development. In 1978 it adopted the Boulder County Comprehensive Plan, which set the goals and policies not only for buying open space, but also for managing the county's environment. In 1994 the commissioners adopted the thick book of regulations known as the land-use code. The year before, the county had devised the cumbersome site-plan review process.
"The county doesn't go out and 'make it difficult' for people trying to build here," says Stewart. "We're just mitigating the impacts of growth."
The county's Department of Land Use, which includes the planning division, makes no secret of how harrowing site-plan review can be, however. The review application packet includes a description of the process: "Out of nearly 1,000 site plan reviews that have been processed to date, none have denied a property owner the right to build. It is true, however, that applicants in some of these cases felt that the conditions of the approval were too prohibitive and chose not to build."
Land Use director Graham Billingsley says the strict rules are consistent with the county's philosophy on growth. "Our comprehensive plan makes it clear that we are here to preserve the land we have, and the only way to preserve what we have is to not allow additional building parcels to be created," he says. "To me, growth means the creation of additional development opportunities, and we don't create additional development opportunities in Boulder."
In Boulder County, owners of undeveloped land pay 20 percent more in property taxes than people who own plots with homes already on them. But before they can build homes and cut taxes, the county makes them jump through so many expensive hoops -- securing approval on everything from the color of a proposed home's siding to its potential impact on other homes' views -- that many landowners simply give up.
Property owners have been complaining about the county's rigid rules for years, but they've only recently begun to organize. Earlier this year, the county commissioners were poised to severely limit development on land with a slope of 20 percent or more. The county's planning commission, which adopted the regulations before passing them on to the county commissioners, had hoped to prevent the natural hazards associated with development on steep slopes, such as rock slides, mud slides, erosion and flash flooding. But irate landowners saw it as another step in the county's mission to stave off development entirely ("A Slippery Slope," March 11, 1999).
The landowners were so concerned that this spring they banded together to form the Land Use Coalition, a 1,000-member group that's fighting what its sees as restrictive land-use policies.
Commissioner Paul Danish calls the Land Use Coalition a "self-serving" organization that makes "outrageous" and untrue claims about the commissioners' motives. "Compared to what life was like when there weren't many people living in Boulder, our processes look pretty tough," Danish says. "Considering all the growth pressures we're facing, if we're going to protect everyone's quality of life, we're going to be more rule-bound.
"I can't think of a government that's gotten smaller and less intrusive when the population has gotten bigger," Danish adds.
In response to the coalition's complaints, the commissioners delayed their vote and formed a slope advisory committee made up of Boulder County residents who have devised ways to limit the environmental impacts of building on steep slopes. On September 2, the committee members presented their recommendations, which included reviewing property on a case-by-case basis rather than limiting development on all land; revegetating disturbed land with native plants; and requiring property deeds to disclose the hazards associated with building. Although the commissioners have not yet voted on those recommendations, they agreed not to pass their original slope-development proposal.
But Boulder's fight over property rights is just beginning. Several months ago, the commissioners handed their critics some new ammunition: They named one of their own to head the county's Department of Open Space.
After the department's longtime director Carolyn Holmberg died last year, the post was filled temporarily by the director of the county's land-use department. In late May, commissioners Danish and Mendez appointed Ron Stewart to the job, which he assumed in June at no extra salary.
Ron Stewart is so friendly and so sincere regarding his mission that it's hard to see how anyone could doubt he's doing the right thing -- perhaps the only thing -- to prevent Boulder's foothills from looking like the Hollywood hills.
Stewart has been a county commissioner for fifteen years. Before that, the Longmont resident represented the northern and western portions of Boulder County for eight years in the state Senate. In fall 2000, Stewart will be up for re-election, but he hasn't decided whether he'll run again; if he does, he isn't sure if he'll remain director of the open-space department.
But one thing he knows for sure is that he always has and always will be the department's biggest cheerleader.
In 1978, Stewart was on the county's parks and open space advisory committee with Holmberg. He tried to convince voters to approve an open-space sales tax that year, but such a tax wouldn't pass until 1993 (although the county was already depositing property-tax revenues into an open-space fund).
"I've always been involved in the acquisition side of the open-space department -- even before Carolyn died," Stewart says. "I'm no more an open-space advocate as director of the department than I was as a commissioner. Frankly, open space has always been one of my high priorities as a commissioner."
Although his critics -- the Land Use Coalition, in particular -- complain that Stewart's dual role is a clear conflict, he insists that the two positions will only conflict if he uses his authority as commissioner to allocate more money to open space than to another department.
"While we've acquired a lot of land, there's still a lot more we need to buy," he notes. "We're under an incredible threat from growth in the county -- not only the threat of losing wildlife and farmland, but we're seeing a higher level of congestion. To me, preserving open space is a way of mitigating the impacts of growth. We will continue in an aggressive acquisition mode as long as the citizens of Boulder County are willing to put forth tax dollars."
The county owns 58,000 acres of open space, the majority of which were purchased since the sales tax and bond issue passed in 1993. If voters agree to extend the tax this November and finance another $35 million bond, the county will be able to buy 8,000 to 12,000 more acres. But that still won't be enough to acquire all the land the county wants: Between 75,000 and 100,000 acres of undeveloped land remain in private hands.
"Ever since the county adopted its comprehensive plan in 1978 and created a different vision for the county," Stewart says, "people have complained because they can't develop as much here as they can in other counties. The government gets griped at because we make sure people dot their i's and cross their t's, but when houses slide down the hill in Jefferson County, people gripe because the government didn't take care in planning.
"One person's perception of the impact a house will have on the environment differs from another's. It's the county government's role to determine what that impact is and to mitigate against it," Stewart continues. "All anyone has to do is drive through Colorado and look at the examples of negative impacts to see that it's an important job. But telling an individual what they can and can't do with their property isn't easy for us to do. We don't get our jollies off that."
Ruth Wright has been involved in county growth issues since the 1960s -- she was chair of the environmental group PLAN Boulder County from 1964 to 1970, represented parts of Boulder County in the state legislature from 1980 to 1994 and was one of the founding members of the county open-space advisory committee. An ardent supporter of open space, she says it's a "fair way of controlling growth."
The county's land-use policies also are fair, she says. "They're probably restrictive, but they're necessary," she adds. "This may sound a little socialistic, but the role of government is not only to protect one property owner from another, but to protect property owners from themselves."
Mark Heath maneuvers his Nissan Pathfinder along stretches of washboard road in Sunshine Canyon, passing one beautiful home after another that he designed. But the Lafayette architect doubts he'll ever get to build a mountain house of his own.
Heath has designed homes in Jefferson, Weld, Gilpin and Larimer counties, and although each of these counties has land-use rules, none poses the barriers that Boulder does. In those counties, Heath says, "you submit an application for a building permit, and that's it."
But to build his home in Boulder County, Heath would have to get a subdivision exemption and go through special-use review, a limited-impact special review, a wildlife review and an enhanced site-plan review, since Big Horn Mountain, where his land rests, is a natural landmark. That process "would take years and tens of thousands of dollars," he says.
Before he even gets to that process, though, Heath must clear another hurdle. Since he bought his five-acre property on Big Horn Mountain four years ago, he's been fighting for the right to simply access the land.
The Pathfinder reaches a granite marker indicating where an old Masonic lodge once stood and takes a 180-degree turn, heading up the rocky road leading to the source of Heath's anguish: Doug Parker's house.
Parker claims this road rests on his property and is not public. The road is the only way Heath can get to his land, which is surrounded on all sides by private property. In order to begin the building process, landowners must get an okay from their neighbors. And Parker says he doesn't think Heath's -- or any of his neighbors' -- land should be developed.
"That does sound hypocritical," admits Parker, who has lived in a wooden house about a hundred yards off the road for more than twenty years. "But I really believe the county should ultimately buy my house and tear it down so the whole top of the mountain can be preserved as open space. The other side wants to put up million-dollar homes, and I just don't think that's the best use of the land."
When Heath bought the land, he found no evidence that the road was private. So in October 1997 he sued Parker, claiming that the road, known as the Old Wagon Road, has been public since it was first used in the 1800s by miners traveling from Boulder to Gold Hill.
Several other neighboring landowners initially agreed that the road was private, so Heath sued them, too. "I had no option but to sue or to keep it as a picnic ground and continue paying high property taxes on it," he says.
The other landowners -- all of whom have yet to build homes on their land -- eventually sided with Heath and agreed that the neighbors should share the costs of maintaining the public road.
But Parker wasn't left the lone defendant: Boulder County joined the suit on his behalf.
"We intervened because whatever the court rules could affect what happens in that part of the mountains," says Stewart. "If you're not named in the case, you can't tell the judge what would be the best alternative. If there's going to be development, it should be clustered together and located on a part of the property that isn't visible from the canyon."
The county has always wanted to acquire the seventy acres on top of Big Horn Mountain for open space, says attorney Anuta, who represents the other property owners in Heath's suit. The county, however, has never been willing to pay what the landowners wanted. In the 1980s, when the owners offered to sell their land for approximately $200,000, Anuta says, the county claimed the price was too high.
Before the three-day trial started on July 26, the landowners again tried to sell their land to the county. This time the price tag was just under $2 million, which the county said was too steep. Since the land hadn't been assessed in more than ten years, the landowners then said they'd sell it for whatever an appraiser said it was worth, but the county rejected that idea, too. Instead the county offered to buy all of the land for $1.3 million if the landowners agreed to pay Parker's legal bills. The owners rejected that deal.
On September 2, Boulder District Judge Roxanne Bailin ruled that the road is private. Her research had turned up no evidence that the Old Wagon Road was ever public. In 1953, the State of Colorado had required Boulder County to submit a road map so that the state could determine what percentage of gas-tax revenues the county should receive. "That map, as submitted by Boulder County, did not show the Old Wagon Road," Bailin noted in her ruling. "Accordingly, Boulder County did not identify the Old Wagon Road as a road it was obliged to maintain. Boulder County would have had a significant incentive to include the Old Wagon Road if it were obliged to maintain it, because it would have received additional money from the state."
In July, the county commissioners offered to buy 2,500 acres of mountain land from the Bureau of Land Management. Most of the BLM's holdings in Boulder County are small, hard-to-find pieces that aren't worth the agency's time to manage. Still, the county's proposal to buy these scattered patches has mountain residents whose property abuts BLM land worried about what their new landlords might do with it.
"BLM policy has always been to give property owners access to their land," says Land Use Coalition member Ann Mygatt, whose property in Fourmile Canyon runs up against BLM land. "To cross BLM land, property owners have to get an easement, which usually expires after thirty years. People can get their easements renewed at the end of that time, but the county hasn't said they'll renew them.
"Because the county's policy has long been to deny public access on open space, we have no faith in our county to do it now. We're afraid people will be locked out of their land."
Fueling the coalition's concern is the amount of money the Boulder commissioners seem willing to pay for the acreage. Although private parties must buy BLM land at a fair market value, under the federal Recreation and Public Purposes Act, a county can acquire BLM land for free, or for no more than about $10 an acre, if it promises to make that land available for recreation.
Boulder County, however, has proposed purchasing the land at market value. Since the land has yet to be assessed, that price has not been determined; BLM realty specialist Jan Fackrell says a final decision regarding the land sale is months away. But neighboring landowners are already worried that Boulder wants to pay the higher price in order to keep any new open-space purchases closed to the public.
As evidence, they point to the county's proposal to the BLM: "Boulder County has long been concerned about the effects of privatization of the BLM Boulder land, and the potential development-related impacts on the fragile mountain ecosystem. This proposal will allow Boulder County to deal with these matters directly, and in a manner consistent with County policies and goals."
Stewart says landowners are making much ado about nothing. "If we buy the land, it will be subject to any easements that exist today," he says, stopping short of guaranteeing that those easements will be renewed in the future or promising that the county will grant easements to landowners who don't yet have permission to traverse BLM property. Allowing future access across the land, he adds, "will have to be taken on a case-by-case basis."
If the BLM agrees to the sale, Stewart says, the commissioners would consider selling pieces of the land to adjacent property owners in the form of conservation easements: That way, private property owners would be able to access their land, but they wouldn't be able to develop the former BLM properties.
The Land Use Coalition is already saving up for possible legal battles. "If the county's proposal goes through and they don't allow people access to their land, I could foresee years of lawsuits," Mygatt says.
Thanks to a law passed during the last legislative session, suing the county may be a less formidable task than it once was. Senator Norma Anderson, a Republican from Lakewood, had been trying to pass some version of Senate Bill 99-218 for five years, but it had always been vetoed. This time, she says, it passed easily, not just because the state has a Republican governor, but because the proposal had overwhelming support from Boulder residents. "This usually becomes a partisan issue, but we had just as many Democrats in Boulder County testifying for it as Republicans, and that tells me something -- that Boulder is not recognizing property rights," Anderson says.
Under the new law, when a private-property owner feels a local government has wrongly required him to give up his land, he can file a complaint with his elected officials. If the two sides can't come to an agreement, the property owner can sue; if he wins, he will be reimbursed by his local government for all legal expenses.
Mygatt predicts that the law, which took effect July 1, will encourage more lawyers to try land-use cases against the county. And if lawsuits don't stop the Boulder County commissioners from telling people what to do with their land, she hopes the voters will. "I've always been a liberal Democrat, but I feel like the party isn't representing the people anymore," Mygatt says. "The majority of people in Boulder County are happy with the way things are going. They don't hear about the people who are getting hurt -- they just hear about the county preserving open space."
And if a recent poll commissioned by Boulder County is an accurate indicator of public sentiment, Mygatt is right. In June the commissioners hired the Public Information Corporation of Littleton to conduct a survey of county residents' attitudes regarding its open-space and land-use policies. Eighty-two percent of the respondents agreed that the county should limit development on steep slopes; 79 percent agreed that the county should "limit mountain scarring caused by the construction of roads to new houses." Forty-one percent of those polled ranked growth management as the most important issue facing Boulder County, while only 2 percent indicated that property rights are the most pressing concern.
Members of the Land Use Coalition say people should be wary of statistics gleaned from a telephone "push poll" that included such questions as: "Please tell me if you feel that a landowner should or should not be able to build a house where they want even if the site selected resulted in the following outcomes: The house would be located in significant wildlife habitat; the house would be located on a ridgeline or would impact a mountain backdrop; people in the neighborhood believe the size or appearance of the house would not be compatible with nearby houses; the access road to the house would create a significant new scar across a mountainside; the house location creates a new wildfire hazard; people in the neighborhood are concerned about the impact of the new house on their own property or their own view."
The coalition was so wary of the results that it hired Kevin Vryan, project manager at the Center for Survey Research at Indiana University, to evaluate the county's poll. He concluded that the questionnaire "suffers from some serious threats to reliability and validity and possesses unnecessary biases that would taint any findings. It concerns me that data yielded from this poll may be used to determine public policy or affect public opinion."
And the commissioners do plan to use the poll to affect public opinion: They're currently trying to raise support for an extension of an open-space sales tax set to expire in 2008. Of the poll's respondents, 70 percent said they would support a ten-year extension of the current tax; 58 percent said the county should spend more money on open-space purchases even if it means a tax increase.
The first sales tax that was earmarked for county open-space purchases was approved by voters in 1993, along with a $35 million bond. In 1995 and 1997, voters approved two more $35 million bonds. Although the tax passed in 1993 won't expire for another nine years, the county is currently using most of its annual revenues to pay off bonds. So in November, Boulder County voters will decide whether to continue paying the quarter-of-a-cent tax for another ten years and whether to approve a $35 million bond so the county will have the cash ready to buy the BLM land.
The commissioners had also considered a November ballot measure that would create a mountain general-improvement district to raise more property-tax revenue so that the county can buy undeveloped building lots in the mountains. Although the majority of the poll's respondents had indicated they would support such a tax, Stewart says the commissioners decided they didn't have enough time to rally support for the measure.
Coalition members suggest that the commissioners may also have recognized that asking mountain landowners for more money right after they'd proposed severely restricting mountain development was not politically astute timing.
Hiking up the narrow equestrian trail that runs alongside her property in Nederland, Arlene Baldwin stops to catch her breath. Her chocolate Labrador runs ahead. "See that house over there? That's where we used to live," she says, pointing to a wooden house by Lazy Z Road.
During the four years that Arlene and her husband, Rex, lived on the lower end of their 7.5-acre property, they mapped out their future: They would construct a second home on the lot beside the original house; after they retired, they'd move to the new house and live off the income from renting out their original home. Their new Victorian-style house would be smaller than the previous one: 1,900 square feet versus 3,000 (although by the county's calculations, which included the wraparound porch and garage, it also would total 3,000 square feet). Instead of being located at the bottom of the hill in a thicket of trees, the new house would be up higher, with unimpeded southern exposure and a direct view of Mt. Thorodin.
The Baldwins bought their land in January 1993 but didn't move to Boulder from their California home until July 1994. While out of state, they missed the legal notice in the Boulder Daily Camera that announced that the county's new site-plan review process would be instituted in May 1993. So, unlike their neighbors, they didn't hurry to build before the new rules took effect.
In June 1996, the Baldwins finally went to the county land-use department to inquire about a building permit for their second house. Land-use planners told them that because both of their parcels were on the same deed and under the same name, the land was considered to contain only one building lot. "When we first asked the planners why we weren't informed that we don't have a building lot, they said they couldn't possibly notify everyone of the rules," Arlene Baldwin says. "When we asked why we were never notified about the site-plan review, they said they couldn't find us. But each time property taxes are due, the assessor knows where to find us."
After the Baldwins hired an attorney, the land-use department changed its opinion. "This letter will confirm that a land parcel of 2+ acres is eligible for designation as a building lot by Boulder County," land-use planner Denise Grimm wrote the couple in April 1997.
The Baldwins didn't question their reversal of fortune; they were just happy they could finally start building. But more obstacles stood in their way. That August, as they began the site-plan review process, they learned that their land contained a natural landmark. In 1991, the county had declared Winiger Ridge, located approximately 800 feet above where the Baldwins wanted to build, to be a protected geological feature.
"You pay the county $30 for a letter stating that you have a building parcel, and then you go on your merry way. There was never any mention of our land containing a protected geological formation," Baldwin says. "I want the county to be responsible for full disclosure of all limitations on building."
As a result of Winiger Ridge's protected status, the Baldwins' land was subject to an even more stringent review; county planners told them they would have to build their home farther down the hillside. In the months that followed, the Baldwins redesigned their S-shaped driveway -- which they had proposed in order to divert traffic away from their neighbors -- to a straight road that the county said would require less excavation; recalculated the amount of dirt that would be dug after county planners said their driveway was too wide; agreed to a different color roof after planners told them that the dark metallic-green one they wanted wouldn't blend in with the landscape; and spent almost $10,000 on land surveys, property-line adjustments and architectural drawings. If her husband, who is in the construction business, hadn't been able to do most of the design plans himself, Arlene Baldwin estimates they would have spent at least twice what they did.
Eight weeks before their public hearing was scheduled for December 1997, the Baldwins went to the land-use department to pick up a map of Winiger Ridge, around which was drawn a line indicating a 250-foot buffer zone. Their land was well below the protected area, but after the hearing, county planners said the Baldwins were using an obsolete map and that the buffer zone had since been expanded to include all of the land between the ridge and Lazy Z Road. That meant their entire property rested within the buffer zone.
The Baldwins went before the commissioners again in January 1998, pleading for permission to build higher up, but the commissioners limited construction to the lower two-thirds of their property.
"The county wants us to build down here," Baldwin says, walking toward a clearing near the bottom of the hill. "Now we have no solar gain and no view. It's a real joke. If we wanted to build here, we'd have to blast out a granite outcropping to put in a septic field."
The real message the Baldwins got from the commissioners was that they were lucky to be building at all.
But the Baldwins had their own message for Boulder: Goodbye.
The couple now lives in Gilpin County. They've already sold the parcel of land that had the original house; the building lot is also up for sale, since they can't justify constructing a house without a view. "Boulder County can't tell me not to sell my land," Baldwin says, "but if they make it unbuildable, they have free open space."
She hopes the fact that the lot is already approved for a house -- albeit one without a view -- will entice someone to buy the land. But the site-plan review expires after three years, so if someone doesn't buy the property soon, the process will begin again.
And by then, the land might be subject to a wildlife impact study. In January the county passed a new rule requiring that people living in critical wildlife habitats have their land surveyed for mammals, insects and amphibians. The commissioners came up with more than 150 "species of special county concern" culled from lists of endangered and threatened animals known to inhabit Colorado. The number of protected species on a property could affect a landowner's ability to build where he wants.
"I don't know if I have one of the four protected ants on my land," Baldwin says. "But I'm afraid to find out."
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