by Beecher Threatt
This is the second in a three-part series examining the history of visual impact. This part summarizes 1993-99.
As the county gears up for another in its infinite list of hearings on visual impact regulations, the Plaindealer looks back at the history of visual impact in Ouray County. We have studied Plaindealer electronic and hard copy story files, minutes of past Board of County Commissioners and Ouray County Planning Commission meetings, BOCC resolutions and Land Use Department files. The BOCC has land use jurisdiction in the entire county, outside the municipal boundaries of Ouray and Ridgway.
The 1990s found the BOCC grappling with a proliferation of building permit and planned unit development (PUD) applications that exposed weaknesses in land use code procedures and tested how the county was going to interpret the code. While staff labored to keep up with applications, Commissioners enacted moratoriums on PUDs because they did not want to set precedents by acting too quickly.
The controversy today swirling around BOCC Resolution 2010-45, directing the OCPC to address visual impact regulations (VIR), had its genesis in regulations adopted in 1997 after a four-year process to revise the land use code. Those regulations were the county's first attempt at a point system for structures, and they expanded application of VIR throughout the county.
In early 1993, the county building inspector issued a building permit for a home located on the Log Hill escarpment that engendered heated debate over skyline breakage. Before a certificate of occupancy could be issued, opponents complained bitterly to the BOCC that the home did not comply with the code because it extended over the skyline when viewed from Highway 550 and other view corridors.
The building inspector said the owners mitigated skyline breakage through landscaping and the front of the home was 25 percent screened, per the code. Opponents questioned whether aspen trees sufficiently screened the home because they lose leaves in winter. The BOCC agreed the land use code had to be studied, perhaps with provisions for death of landscaping items.
"The idea behind the regulation is that you can have a panoramic view as long as you don't obstruct other people's panoramic views," County Attorney Rich Tisdel told commissioners. The skyline means the natural skyline, and it cannot be raised by planting trees taller than the structure, he said.
The building inspector defended his actions and said the certificate of occupancy had to be issued. The regulations (Section 9) are "discriminatory" and difficult to enforce, and he wanted to see the entire section deleted, he told the BOCC. Tisdel said the code should better define 'skyline' and clarify what mitigation would be acceptable.
County residents submitted a petition with 187 signatures encouraging the BOCC to enforce the land use code. At the BOCC's direction, Tisdel notified the owners they were in violation of VIR and asked for a mitigation plan.
The controversy extended over months, with citizens appearing before the BOCC regularly in emotionally charged meetings, some insisting that the home be moved. The owners' attorney told the county commissioners they did not have jurisdiction because they could not order the building inspector not to issue the occupancy certificate.
In March 1993 the BOCC fired the building inspector and filed suit against the hom owners to enforce the VIR. The backlash was immediate. At an April BOCC meeting, 60 people showed up to protest the county's treatment of the home owners, saying the building inspector was made a scapegoat. People in the group said there was hatred in the county for newcomers and the owners were being punished for something they did not do.
After the county was denied a preliminary injunction to halt construction, commissioners decided to drop the lawsuit. The judge noted the home did not conform to the land use code but said he could not issue an injunction because the building inspector had issued a permit and the plans did not change. Commissioners dropped the lawsuit and issued a certificate of occupancy to the owners, with the notation the building was non-conforming, meaning it could not be rebuilt or added onto without coming into compliance with the code.
Shortly thereafter, a group of citizens, mainly those opposed to the home, formed Ridgway-Ouray Community Council. The BOCC assured opponents that there would be no more VIR issues on Log Hill. The county would be certain to get approval from the homeowners' association's architectural control committee before issuing a permit, something that had not been done before, and would require a survey and plans with significant tree placements.
ROCC and another recently-formed group, Ouray County Alliance, began work on recommended changes to the land use code.
In 1994, another issue arose—the land use code's Foothills and Valley zones, which did not have hard boundaries. Land in those zones was presumptively zoned "Valley," but the county land use administrator could "delineate" a parcel as "Foothills" if there had been no irrigation on it since 1971, pursuant to the current land use code. The intent was to keep irrigated meadows intact. The advantage of the Foothills designation was that it allowed one structure per five acres, whereas the Valley Zone allowed one structure per 35 acres. The question was posed whether irrigation should be used to determine zoning, and the Plaindealer pages filled with letters on both sides of the issue.
In February 1994, OCA representatives broached the topic of updating the county's master plan, which was by this time nine years old. County Attorney Mike Hockersmith echoed that sentiment in May.
At the end of May, the BOCC instructed the new building inspector not to grant a building permit for a proposed 13-unit cluster of homes, again on Log Hill, until the developer assured the county that certain trees strategic to screening of some homes would survive construction. The subdivision had been approved in 1988. By May 1994, the county was requiring subdivision covenants to contain provisions stating that screening vegetation would be maintained, that the builder would provide the county with information as to appropriate vegetation for screening and an estimate of the current health of trees, and an enforcement mechanism by the subdivision in case a tree died or was cut down.
The BOCC in July approved by a two to one vote issuing building permits for the homes, requiring that they comply with VIR.
A concurrent issue arose in the first half of 1994 regarding the county's authority to delineate a property as Foothills. ROCC members and other residents told the BOCC that zoning was off-track and some properties that could be irrigated were being delineated as Foothills, allowing greater density of structures. They asked the BOCC to clarify the Section 9 provision regarding irrigation.
Planning commissioner Steve Easley said planning issues were getting worse and soon it would be too late to make changes. "This county is growing too fast," he said. "It does no good to plan after everything is bought up and developed." Resident Carey Skoumal told commissioners, "I fear being inundated by developers coming in to buy as much as they want, forcing prices up and then people living here for years won't be able to afford the taxes. We may be able to work here, but we won't be able to live here."
ROCC contended that land use staff was not following legal procedures in the delineation process. The BOCC asked the planning commission to review needs, figure costs and prepare a flow chart.
This year the county administrator resigned to go sell real estate.
Attempting to get a handle on the building applications pouring into the land use office, and desiring to amend the code, the BOCC declared a 90-day moratorium on PUDs and special use permits in most of the county in June, later extending it to Jan. 1, 1995. This followed a moratorium in 1992-93 on PUDs in the Foothills Zone.
In 1995, the BOCC ended its practice of summarizing discussions and including resolutions in its meeting minutes. Minutes became "action only," so much of what happened can be gleaned only from Plaindealer stories. Audiotapes were made but have since been destroyed.
For most of 1995, ROCC and the BOCC sparred over delineation and following land use code procedures. ROCC and other residents contended that delineation, which increased density, was actually "spot zoning" and advocated for hard line boundaries between Foothills and Valley zones.
In March, the BOCC enacted new criteria for delineating a parcel as Foothills. A parcel would remain Valley zoned if any one of the following were true: it had been irrigated at one time; the land was cleared and crops were irrigated; it was classified as wetlands; or if land was alluvial fill even if not irrigated and had an aerial canopy of low vegetation. Delineation also required a public hearing and 14 days public notice. Later, responding to ROCC criticism, the BOCC added notice to landowners within 200 feet of a parcel up for delineation.
ROCC continued to point out that procedures were not being followed, both in delineation and in adopting amendments to the land use code, and the county was not requiring documents that the code said had to be provided. As a result, the BOCC tabled some pending delineation hearings.
On June 26, ROCC took out a full page ad in the Plaindealer with a Rube Goldberg-like maze showing different versions of the March land use code amendments that were circulating. ROCC claimed no one in the county knew which version of the amendments was being used and without written minutes of the hearings it was impossible to know which version had passed; furthermore, the amendments may have been passed illegally as there was no public hearing and the amendments did not go through the OCPC. In early 1996, landowners adjacent to a parcel delineated as Foothills under the new criteria sued the county contending there was no due process in adopting the new delineation rules.
Greater confusion broke out when commissioners said they meant for the new criteria to be for rezoning, not delineation.
A Plaindealer editorial by the inimitable David Mullings took the BOCC to task for not producing complete minutes.
Throughout the rest of 1995, visitors to BOCC meetings continued to complain about delineation and not following procedures in the code.
The OCPC held a public hearing on proposed amendments to the land use code in April 1996. All but one speaker at the hearing was opposed to the changes. The then-current code applied VIR to PUDs and structures built under special use permits. Proposed changes included reducing maximum building height to 28 feet (and to 18 feet in some meadow areas) and adding county roads to the list of areas subject to VIR.
One speaker accused the county of "strangling people...like a bunch of dictators." According to the Plaindealer, the meeting was "punctuated by shouting, threats of lawsuits and emotional references to 'takings'." Commissioners were visibly angry and John Trujillo warned against the tone of voices at the podium.
A few days later, the planning commission tabled consideration of VIR until June so it could hold a workshop with a broad-based group of representatives. Chair Greg Posta said the hearing had not been helpful. "It's difficult to have a fair public hearing when you have such a one-sided audience," he said. By June, the county would have completed a survey of county residents.
The OCPC also began discussing a possible point system for gauging if a project complied with VIR and applying VIR to the entire Foothills Zone and not just PUDs.
By May 1996, a group had formed to fight the proposed regulations. Property Owners Coalition of Ouray County sent out its own survey to residents. At a meeting organized by a Realtor and attended by many members of POCOC, attendees approached state Sen. Ben Alexander with the idea of recalling the county commissioners. Alexander suggested they use the ballot box instead.
County Commissioner Alan Staehle addressed the meeting, saying the BOCC wanted reasonable land use regulations, but "we need to try to preserve our uniqueness without stripping away property rights."
For the next two months, the OCPC reviewed results of both surveys and held public meetings. They discussed blending, screening and the problem of existing structures that did not conform to the VIR.
POCOC voiced opposition to any screening and skyline requirements and opposed adding language to the code that development be "substantially inconspicuous."
The planning commission made revisions to the proposed amendments and sent them to the BOCC. Existing buildings that did not comply with VIR could be replaced with a structure "no more conspicuous" than the original and could be enlarged to 2500 square feet; structures had to be set back 50 feet from the escarpment; new construction within a mile of highways or county roads had to be 40 percent screened using existing vegetation or landscaping; structures could not break the skyline but could fill gaps in the skyline; the skyline viewing window was reduced to one mile; and, no highly reflective materials could be used. Ouray County Alliance, formed in 1993, advocated for even tighter regulations.
After a rancorous public hearing in January 1997 on the proposals, the BOCC told the county planner to devise a point system, which was done almost immediately. The OCPC took public input until October, when it presented the new Section 9 to the BOCC.
In December 1997 the BOCC finally adopted an entire replacement for Section 9. The point system took some of the subjectivity out of visual impact, giving a project positive points for building size and height and negative points for lot size, amount of natural screening, additional screening, exterior color, distance from a road and being in a PUD. If the structure came in at five points or below, a building permit could be issued. VIR would now apply to all residential structures in a view corridor, not just PUDs. Viewing windows were increased to 1.5 miles, and there were new skyline rules. A Board of Visual Appeals was established.
The introduction to the new Section 9 stated, "...intent of these regulations is to minimize the visual impact of both individual structures and development as a whole so that development does not compete with the existing physical environment for the viewer's attention, thereby preserving the unique physical environment that has traditionally characterized and defined the county."
County commissioners at the time were Joe Mattivi, chair; Alan Staehle; and Frank Hodsoll.
A Realtor wrote in a supplement to the Plaindealer that many people were opposed to the new regulations but it had been three years of meetings and people just didn't have time to go to every meeting to challenge them.
From March 1998 until December 1999, the BOCC and the OCPC revisited the 1985 Master Plan. A major goal in the plan was to attract industrial and commercial employers to the county, but that goal was the least favored in the 1996 survey performed by the county. In 1985, mining and agriculture were the two most important economic activities; in 1993 those accounted for only eight percent of the jobs. Residents said in the 1996 survey their highest priority for future development was goods and services for residents, mining and home businesses, while real estate development was the second lowest priority.
The economy had shifted from predominantly agriculture and mining to tourism and service based. Visually significant land, wildlife and vegetation gained importance due to their impact on tourism.
Water was now available to more areas, including Pleasant Valley, Cow Creek and Log Hill, and development pressures in those areas were greater.
So in July 1998, the OCPC decided to revisit the county's Master Plan, setting aside the BOCC's directive from earlier that year that they consider new zoning options and land use code amendments.
OCPC workshops continued through June 1999, and the new Master Plan was adopted in December. By state law, planning commissions, not boards of county commissioners, adopt master plans. Planning commissioners were Jim Irvine, chair; Barbara Vanhoutte, vice chair; Linda Ingo; John Trujillo; and Judy Wolford.
The 1999 plan is still in effect today and is available on the county website under Land Use Department. It set goals and policies for agricultural lands, community/municipal relationships, economic development, housing, natural resources, rural character, tourism, transportation, utilities, visually significant areas, wildlife and plant habitats. One of the policy statements for the goal of protecting visually significant areas is to "Maintain strong visual impact regulations."
Quoting from the plan: "The overall goal of the Ouray County Master Plan is to allow gradual, long-term population and economic growth in Ouray County in a manner that does not harm the County's irreplaceable scenic beauty, wildlife, air and water resources, and other environmental qualities and that does not unduly burden the County's residents or its governments."