Monday, October 25, 2010

FACTS about the Visual Impact Process

I would like to clarify some misunderstandings and myths in a recent Letter to the Editor signed by Dave Calhoon that was published in the local newspapers last week.  Mr. Calhoon's letter contains misrepresentations about Section 9 of the Ouray County Land Use Code, AKA Visual Impact Regulations, and the ongoing review process that may lead to revisions of Section 9.  The letter also contains misrepresentations about the county Land Use Department, the County Attorney, and the 2009 South Alpine Proposal.  Many of these misrepresentations have been repeated for quite some time.  Having this misinformation spread is unfortunate because it  causes citizens to be misinformed and leads to conclusions that may be different than if they had factual information. 

MISREPRESENTATION:  Section 9 has been in the Ouray County Land Use Code for 24 years and has never been amended.
FACT:  The process to amend Section 9 began 7 years after it was first passed.  OCPC worked with a paid consultant for 4 years in the 1990s.  Section 9 was amended in 1997, 11 years after it was first adopted in 1986.
Mr. Calhoon's letter stated that Section 9 of our Land Use Code, titled Visual Impact Regulations were adopted on March 4, 1986.  He notes that Section 9 was "readopted" 11 years later on December 29, 1997. He states that Section 9 has not had any amendments or additions in the 24 years since 1986. 
Land Use Code is not "readopted" without changes.   Actually, in 1993, just 7 years after the adoption of Section 9 in 1986, the Ouray County Planning Commission (OCPC) began holding work sessions to rewrite Section 9.  The Board of County Commissioners paid an Aspen-based consultant some $8,000 to craft the wording, point system, and other elements that are indeed in the current Section 9 (but were not in the 1986 code).  The OCPC worked on the current Section 9 for over 4 years, with a paid consultant.  There were significant changes from the 1980s version, which basically required new subdivisions (planned unit developments) to comply but did not have a point system, to the 1990s version which required all new houses within the visual impact corridors to comply utilizing the point system.

MISREPRESENTATION :.  It was never brought up that changes to Section 9 needed to be made.
FACT:  Revisions to Section 9 have been requested by citizens, the last 4 County Planners, and the County Building Inspector, for almost 10 years.  Section 9 has been an official BOCC priority for over 4 years.
Throughout the last decade, Section 9 has continued to generate controversy and complaints by public and County staff because of certain outcomes, what has been called an onerous process, a subjective point system, and confusing language and diagrams referring to "viewing windows" and so on.  It has been requested to be a priority for revision by the last 4 County Planners.
In 2005 a citizen proposed to delete a certain portion of County Road 1 from the current Section 9.  The OCPC and BOCC considered the requested revisions and the BOCC reached a decision with Resolution 2005-042.
The Board of County Commissioners has by Resolution, formally adopted "Priorities for Land Use Code Amendments".  Section 9  has been listed as a priority for the last 4 years, in Resolution 2007-041 and 2009-002 (back when Don Batchelder was a Commissioner), Resolution 2009-030, and Resolution 2010-007.  Setting Land Use Code priorities by Resolution occurs as a formally noticed agenda item, during a regular public meeting of the BOCC.  Public who want to hear the rationale for the priorities set by the BOCC, or who even wish to disagree with the priorities set by the BOCC are welcome to come and give input during these public meetings. 

MISREPRESENTATION: The majority of public input on the May 27 proposal for Section 9 was negative.
 FACT:  The majority of public input received agreed that visual impact regulations are needed in Ouray County.  Many people expressed they are happy with the current regulations and many expressed desire for strong visual impact regulations that achieve natural blending and screening, have a flexible and objective process, are fair and equitable, protect significant view corridors, and are true to the Master Plan. 
To say that the majority of public response was negative is untrue.  The noisiest response is primarily from certain well-funded special interest groups and is largely negative.  One of these groups spent thousands of dollars this summer to send every County landowner a postcard claiming the county wanted to diminish property values, mandate house color, mandate building materials, and reduce building height.  Despite the postcard's content, relatively few postcards were returned to the originators as a show of anti-Section 9 sentiment.  The County has received numerous favorable responses from citizens who attended the May 27 presentation and individually filled out surveys that evening, as well as through emails, letters, and comments while participating in the process. 
The purpose of the May 27 draft was to interest the public in an evolving topic PRIOR to work sessions being held by the Planning Commission (OCPC).  It was also to frame the purpose and need, and suite of possible options for the OCPC, to help them concentrate their efforts.  No process is perfect, but the main objectives of the BOCC have been accomplished--to have a transparent process with considerable and timely public input.  The Planning Commission will soon be taking up Section 9.  From the public input received, the BOCC will direct the OCPC to make recommendations to the BOCC on tweaking the current point system, rather than further contemplating a tier system. 
The BOCC believes our deliberation on Section 9 to date has been exemplary of democracy in action. The process is still in its early stages. As the BOCC turns its deliberations over to the OCPC the continued input from all citizens is needed.  Citizens should not be dissuaded by those who wish to undermine the process to their own ends.

MISREPRESENTATION:  BOCC work sessions on Section 9, which began in fall 2009 and continued through summer 2010 were held without public input and without OCPC involvement.
FACT:  Considerable public input was collected during approximately three-dozen work sessions, several members of the OCPC participated regularly in the development of the draft presented on May 27.
Based on the comments received on the Planning Commission's South Alpine Zone proposal, and recognizing that Section 9 has been controversial for two decades, the BOCC chose to hold public work sessions on the topic prior to sending it to Planning Commission.  This was to allow the public to become aware of the discussion early on and to participate before, during, and after the subject was worked on by the OCPC.  The 36 BOCC work sessions were noticed in two newspapers, on the county web site, emailed to the entire county email distribution list, and posted on bulletin boards outside of the Land Use office and County Courthouse.  3 to 4 members of the OCPC regularly participated in the work sessions, along with 10 to 20 members of the public.  The work sessions were shaped  by public and staff input, and the proposal presented at the May 27 Town Hall style meeting was the result of majority consensus among all those who participated.

MISREPRESENTATION:  The Land Use Department has a large deficit, from using the County Attorney as a "land use planner". 
FACT:  The Land Use Department is not an enterprise fund .  Land Use is a department within the General Fund that generates some revenue from building permits, septic permits and land use fees.  Revenue is dependent upon building/development activity and may change from year to year.   Processing applications and permits is not the full scope of the Land Use Department and fees are not intended to fully support it.   As a direct result of the current economic recession, the 2009 and 2010 revenues budgeted for the Land Use Department were down due to a reduction in the amount of building permits and PUD applications.  Thus in the interim Land Use staff focused on a backlog of administrative tasks with reduced staffing.  The County Attorney is on salary.  Prior to 2006, the duties of the County Attorney were contracted out to other law firms or individuals.  Since 2006, the County has had a dedicated full-time Attorney for less than the cost of part-time contract legal representation.  As one of her duties she has worked with the OCPC and BOCC on recent Land Use Code matters, as well as performing numerous other day-to-day services for the county regarding a variety of legal matters, without incurring overtime or additional costs to the taxpayers.
Having the County Attorney on salary has saved the County thousands of dollars and has absolutely resulted in "Doing More with Less".  This arrangement allows the County to have dedicated legal services without inherent conflicts of interest that arise when a law firm is representing both the County and other interests. 
One of the reasons the BOCC sets priorities for Land Use Code revisions by Resolution is to allow for strategic  and timely revision of the Code, while also allowing for other staff duties to be accomplished in a timely manner.  The County Attorney has worked with the OCPC and BOCC on recent Land Use Code matters, along with various other projects, without overtime or additional costs to the taxpayers.  For example, the County Attorney provides legal service and advice to the Board of County Commissioners and their divisions and departments, and, when appropriate, initiates and represents the county in litigation.  If directed by the BOCC, the County Attorney also represents the various County departments, appointed advisory boards, and other elected or appointed officials, when those interests are compatible with those of the County. The BOCC has indeed directed the County Attorney to work with the Planning Commission, the Public Access Group, and other county boards/commissions. 
When the County Attorney is working with the OCPC or BOCC on Land Use Code matters, she works to help the boards to understand State Statutes and to put concepts into the appropriate code language.  This is different than the County Planner's duties.  The Planner advises the OCPC or BOCC on implementation, best practices, and technical details.
In addition to the above duties, the County Attorney coordinates with our insurance carrier in all public liability and tort actions.  The County Attorney handles all general civil litigation matters for Ouray County, including land use, zoning and building code violations; employment issues; property tax issues; election issues; and provides legal services and review on all contracts. The County Attorney is licensed and authorized to appear in all Colorado State Courts and also before the U.S. District Court of Colorado and the U.S. 10th Circuit Court of Appeals.
State law mandates the County Attorney's Office to represent the People of the State of Colorado in certain social services/human services and mental health proceedings, thus the County Attorney prosecutes Dependency and Neglect actions.

MISREPRESENTATION: The BOCC in the last 2 years prepared its own version of the South Alpine Zone without involvement of the entire OCPC. 
FACT:  In 2008 BOCC members Batchelder, Albritton, and Meinert asked the OCPC if regulations specific to residential development on mining claims should be considered.  Based on the "yes" answer, those BOCC members passed Resolution 2009-002 listing development of  " A new section to address residential development of mining claims" as a priority.  Proper process was followed.  Following a joint meeting between the BOCC and OCPC in March 2009, the OCPC held  work sessions and did develop a new section of code named the "South Alpine Zone." 
The OCPC is assisted by County Planning Department staff, the County Building Inspector, and the County Attorney in the process of developing modifications, amendments and additions to the Ouray County Land Use Code.  As far as development of what became the South Alpine Zone proposal, the history is as follows:  January 15, 2008 --  BOCC had a work session discussing possible new regulatory structure for mining claims;  July 15, 2008 – Planning Commission held a work session on whether new regulations were necessary – consensus was “yes".  The Planning Commissioners “agreed that regulation of mining claim development needs to be addressed in balance with the protection of private property rights . . . .”; October 14, 2008 -- BOCC held a work session on residential development of mining claims and directs Staff to begin preparing a draft based on Board’s guidelines; January 2009 -- BOCC passes Resolution 2009-002 and passes a 6-month moratorium on residential development of mining claims; March 17, 2009 -- joint work session with BOCC and Planning Commission to review proposed regulations; April - June 2009 -- OCPC has 5 work sessions and a public hearing on the proposed South Alpine Zone.  The entire OCPC that showed up for their regularly scheduled meetings did participate in this process.  In July of 2009 the BOCC and OCPC jointly hosted a Town Hall Style presentation on the South Alpine proposal.  Public comment received at the presentation included comments that some public was unaware of the OCPC work until after they concluded it with the public hearing. 

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