by Beecher Threatt
This is the third part in a three-part series examining the history of visual impact. This part summarizes 2000-2013.
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. Two weeks ago we summarized 1971-86. Last week we looked at the years 1993-99. This week we conclude with 2000-2013.
Following the OCPC's adoption of a new Master Plan in 1999, the BOCC declined to adopt it but said it would be used as a guide in revising the code. County commissioners were reluctant to adopt a new Master Plan while the land use code was stuck in 1986. The advice of the county attorney was that the plan could be used as a basis for lawsuits against the county and therefore should not be officially adopted.
In 2000, the BOCC continued to produce "action only" minutes of meetings; therefore, the gist of discussions comes from newspaper articles. Minutes went back to reflecting full discussions in 2002.
The OCPC continued to consider revisions to several sections of the land use code. A major proposed change was a new zoning configuration, creating nine zones: Alpine, Colona, Log Hill Village, Middle Mesa, North Mesa, Public Lands, South Mesa, South Slope and Valley, replacing the four zones previously in the code. Public comments included alleged micromanagement if the new zones passed.
In April the BOCC placed a moratorium on new applications for zoning delineations, planned unit developments (PUDs) and special use permits (SUPs), with some exceptions. Commissioners cited growth in the county and the need to have new zoning regulations in place before considering more applications.
Also in 2000, the fourth county administrator in four years resigned.
The moratorium was eventually extended to Jan. 8, 2001, and on that date the BOCC adopted the new zones for the county. The OCPC continued to review issues of rezoning applications, home occupations and residential use permits.
In March, a tower in Colona that gave hope for high speed Internet access received conditional approval.
Some planning commissioners attended a meeting of the Colorado Chapter of the American Planning Association in September and reported to the BOCC that Ouray County was "ahead of the curve" on visual impact regulations (VIR). They also asked for more time on code amendment review and continued to work on home occupations and the definition of 'farming and ranching'. OCPC Chair Barbara Vanhoutte said discussion on the definition of farming and ranching "seems to be going in circles...We have to make some decisions."
In October the BOCC added to the OCPC agenda by asking it to consider a dark sky amendment to section 9 VIR, to reduce outdoor lighting glare. The provision had been proposed by the Ridgway-Ouray Community Council. After the OCPC held meetings to get public input on the dark sky proposal, which would require downward, shaded lighting in the county but grandfather in agricultural lights, became part of the land use code in 2002.
In September 2002, the BOCC amended the land use code to require 50 foot setbacks from property lines in the Valley Zone, with some exceptions.
September also saw the first discussion at a BOCC public hearing of a special use permit application to erect a tower on Log Hill. At that time, it was known as the "Alltel Tower." The plan was to erect it on Tower Road, near two other towers. Some citizens who appeared before the BOCC complained of the 60-foot height and its visual impact; others said they needed better cell service. Commissioners said structures, which are regulated by the land use code, are not towers. The proposal was tabled for Alltel to resolve ownership issues.
In December, the BOCC added a section to the land use code on home occupations and businesses.
In July 2003, a tower went on county property near the land use building north of Ridgway, as approved by the BOCC. County emergency services coordinator Alan Staehle said it would improve emergency communications. The Ridgway Area Joint Planning Board, an advisory board to the BOCC for proposed projects near Ridgway, had recommended denial, as had the county planner.
Visual impact took a back seat in 2004 while the BOCC struggled with development of a large tract of land located in the northwest part of the county and in Montrose County.
A solar panel array on private property in Log Hill tested the limits of the county's VIR in 2005. In July, after taking public comment on both sides, the BOCC tabled it until August. The county building official had ordered the panels removed because no building permit had been issued. Without approval by the Log Hill Village Homeowners Association Architectural Control Committee (ACC), the permit could not be issued. The land use code requires all planned unit developments to adopt covenants to enforce county VIR.
The homeowner contended no approval was needed because the panels did not require a building permit. He said the panels were on a ledge over the escarpment, could not be seen from the road or by neighbors and did not break the skyline.
Opponents declared their support for solar energy but claimed the glare from the panels would be obtrusive.
Commissioners were aware their decision would be setting a precedent. What is a structure? Do VIR apply to solar panels? Does an ACC have authority over placement of solar panels?
After meeting with the county attorney in executive session, the BOCC said the homeowner had to get a building permit; therefore, the panels had to be moved to a spot acceptable to the ACC. In 2006, they granted a variance to setback requirements in order to place the panels elsewhere on the property.
At around the same time, the BOCC and OCPC agreed to deny a citizen proposal to remove from the list of visual impact view corridors a 3.7-mile stretch of County Road 1 north of Ponderosa Drive.
In 2006, the BOCC adopted the new zones, removing zones for Log Hill Village and Middle Mesa and inserting the High Mesa Zone. A lawsuit by the Ouray County Plaindealer prompted commissioners to deliberate appointments to the OCPC in an open meeting.
And then, the Tower saga began.
The Tower, 2005-2013
In 2005 the Log Hill Mesa Fire Protection District obtained a state grant to build a tower that would allow the district to link to the Colorado Wireless Interoperability Network. The tower would be 80 feet high, and the district proposed to erect it on vacant land next to the fire department building on Ponderosa Drive. Maximum height of a "building or structure" under the land use code is 35 feet.
The tower would be located in a PUD, so approval of the architectural control committee would again be required before a building permit could issue, or so everyone thought.
When, in 2006, a balloon was floated 80 feet up at the site, the ACC said the visual impact would be excessive and it would not approve a tower there. The Board of Visual Appeals turned down the fire district's appeal of the denial of a variance for a building permit.
In 2008, Dallas Creek Water Company, owner of the "tower farm" site where two smaller towers stand, applied for a special use permit. The Ridgway Area Joint Planning Board asked for details of a potential lease between Dallas Creek Water and Verizon Wireless and for evidence of cell phone reception improvement and emergency radio coverage. The county planner said the tower would violate VIR.
Nonetheless, the planning board recommended approval by a 5-2 vote, and the BOCC took up the matter. About 60 people attended its public hearing in September 2008.
Proponents, including emergency response personnel, told the BOCC the tower would improve their communications, saving lives. Others said it would improve cell service. Of primary importance was the willingness of an outside entity to pay for the tower and allow the county to place communications equipment on it.
Opponents complained of the visual impact to residents, in violation of the land use code.
A few days later, the BOCC tentatively approved the special use permit, but with six conditions, including going through the building permit process and mitigation of visual impact. The ACC would also have to approve it, which was unlikely since the Log Hill covenants required adherence to VIR. Commissioners were clearly seeking a way to improve residents' health, safety and welfare while acknowledging they had to follow the county's VIR.
As predicted, the county planner rejected the building permit application because it did not comply with VIR.
Applicant Dallas Creek Water appealed to the Board of Visual Appeals in March 2009. Staehle presented a plan to mitigate visual impact by clustering it with the other towers, designing a lattice type tower and using non-reflective paint.
Finding it would violate VIR and the maximum height restriction, the board denied the appeal and the tower ended up back before the BOCC.
In April 2009, the BOCC found that health, safety and welfare outweighed the ACC denial on visual impact grounds and approved the permit.
A Log Hill homeowner sued the county, and trial was held in January 2011, about the same time that Verizon began construction of the tower. The BOCC decision was upheld, and the lawsuit is still on appeal.
Prioritizing Land Use Items, 2007-2012
Resolution 2007-41 set priorities for the OCPC to consider based on land use staff recommendations. Of seven items, visual impact was fourth. In 2009, another resolution held that the BOCC would revisit the priorities list every six months. Later that year, 2009-030 reordered the 2007 priorities in this order: Section 6 regarding boundary adjustments, a new Section 30 for Alpine Zone regulations, Section 23 roads standards, Section 7 improvements standards. Other sections that were acknowledged to need review included Section 9 Visual Impact.
The first 2010 resolution moved visual impact up to second place, and the second 2010 resolution kept Section 9 in that place but put adding wildlife shelters as a special use as first.
In November 2010 a resolution specific to visual impact only passed. See discussion of Resolution 2010-45 below. Resolution 2011-011 placed Section 9 at the top of the priority list, as did the next two re-prioritizing resolutions, in 2011 and 2012. Later in 2012, the BOCC turned its attention to some sections that had to be repealed or amended quickly, so Resolution 2012-028 put Section 9 back down, to fifth place, with the goal being the OCPC would have a draft to the BOCC in six months. The OCPC met that deadline and their draft is going to public hearing on Feb. 26.
In 2007 commissioners and land use staff began hearing complaints about a new home being built north of Ouray that people thought did not comply with VIR. The county building inspector told the BOCC that the house would comply when it was complete. It blended with the landscape and story poles showed any skyline breakage would be allowed under the code.
County Commissioner Heidi Albritton, who represented the Ouray area, said the complaints centered more on residential building on mining claims, going beyond the VIR compliance issue.
In 2008 work focussed on drafting regulations for residential building on mining claims. In January 2009 the BOCC enacted a six month moratorium on new residential building in the Alpine Zone, to give the OCPC time to review the draft regulations adding a new Section 30 to the code.
The BOCC also discussed looking at the process of amending the land use code, as the OCPC had taken a year to revise just two sections, despite a 2007 directive to draft revisions for eight sections.
The new policy on residential development on mining claims had to take into consideration the new trend of reactivating old mines and future construction of homes in previously inaccessible areas.
“We've seen a major culture shift with all of these properties up in the high country where you couldn't build or live before,” Albritton said during discussion of the draft moratorium resolution.
The mining claims issue is important to a visual impact historical review because it exposed weaknesses in the draft regulation review system and the relationship between the BOCC and the OCPC.
The BOCC proposed a new Section 30 to the land use code that would, among other things, address scope and size of home sites, housing density on tracts of land that contain mining claims, access roads and visual impact considerations. Draft regulations went to the OCPC.
The planning commission held five workshops on the issue between March and June 2009, most of which were contentious. No recommendation was forthcoming, to the chagrin of the BOCC. The moratorium would expire on July 26, and no consensus was in sight.
In early July, the BOCC asked the OCPC to step it up. They passed a resolution unanimously “setting forth guidance and recommendations” to the OCPC requesting that it move forward “expeditiously” to complete their recommendations to the county commissioners.
At a July 9 workshop, the OCPC decided not to take any action on the new Section 30 after hearing from many of the mining properties owners. The BOCC canceled a scheduled public hearing and set its own public forum for July 27, citing too much contentiousness at OCPC workshops.
Two hundred citizens appeared for the July 27 forum. Some asked that the proposed regulations be limited or not even considered, claiming it was a matter of property rights. Others proposed a task force of mining claims owners and land trusts to come up with a way to transfer rights and keep open space.
In early August 2009 the BOCC acknowledged that perhaps the timetable given to the OCPC was not realistic and the two boards needed better understanding and communication. A joint workshop was scheduled.
Commissioner Lynn Padgett wanted a recommendation from OCPC on Section 30, citing the need for accountability and a possible future precedent of an OCPC stalling for ideological reasons. They have "hijacked" the process, she said.
After the workshop the BOCC ended up taking Section 30 consideration from the OCPC and moving forward on its own.
Both boards realized that public input should have been invited before regulations were drafted. That process would result in better drafting of proposed regulations, which would then go to the OCPC. They agreed the chairs of the two bodies would communicate more regularly in the future.
In September 2009 the BOCC set the optimistic goal of revising Section 9 by early 2010, including holding public forums, drafting proposed regulations and submitting them to the OCPC, which would then issue its recommendations. The intention was to expand the number of view corridors to which VIR applied, to overhaul the points system for issuing building permits and to take some of the subjectivity out of the code.
The early 2010 goal was pushed back, and in May 2010 the BOCC issued a final draft of changes to Section 9. It added to the list of roads to which VIR applied, including all numbered county roads and all USFS and BLM roads. View corridors would be gone, and VIR would apply to visible structures within 1.5 miles of any of the designated roads.
It removed the point system and recommended a tier system for issuing building permits, whereby smaller houses that complied with objective VIR would be fast-tracked, and larger houses would have the option to be more flexible in using visual impact mitigation techniques. Blending with the natural landscape would be required; setback from ridgelines or escarpments would be 200 feet; and, no skyline breakage would be allowed.
The draft was presented at an infamous town hall style meeting on May 27. Nearly 200 people attended, spurred on by a phone and ad campaign that warned the BOCC wanted to reduce the height of your house and dictate what color it would be, among other claims.
The BOCC was following the plan worked out after the mining claims meetings, by asking for public input and redrafting proposed regulations before sending them to the OCPC.
After a presentation of the proposed VIR on May 27, the public had its turn. Many called the proposal onerous and too subjective. They applauded speakers who opposed more regulations. Some people spoke in favor of the new VIR also.
Commissioners set four more public forums, each targeted to a stakeholder audience or to a specific issue.
By Aug. 10, commissioners had scrapped the tier system and the 200 foot setback requirement. The old point system was looking better.
On Aug. 12, they heard a presentation by a coalition of Realtors, developers and brokers, who flatly opposed any visual impact changes. They predicted reduced property values, loss of views and reduction in property taxes. Even though the tier system and setbacks were out, the group said just the possibility of them had already caused lower real estate prices and decisions not to build.
Expansion of roads was not necessary, they said, because they are not all traveled by tourists.
Commissioners justified their draft provisions by pointing out shortcomings in the current VIR: blending not mandatory, screening was subjective, vague language and lack of protection for some areas of the county.
On Nov. 1, Resolution No. 2010-45 passed, outlining the 12 visual impact issues the BOCC directed the OCPC to address: expansion of visual impact regulations to more roads; whether the building permit point system achieves "blending"; mandatory setbacks from roads; skyline breakage rules; setbacks from ridgelines and escarpments; permit application submittal requirements; appeal process; difference between structures and buildings; historically accurate buildings; review of definitions; how to treat remodels and additions; and, provide input for a companion guide to VIR.
These issues are addressed in the draft Section 9 that the OCPC is taking to public hearing on Feb. 26, 2013.
In Resolution 2010-45 the BOCC, comprising Albritton, Padgett and Commissioner Keith Meinert, laid out reasons for revisiting visual impact. Notably, it lists those who requested that the BOCC make changes: Ouray County citizens, four current and prior county administrators/planners and the county building inspector. It states the BOCC held 36 public hearings and meetings, including field trips, a meeting with design professionals and a meeting with the real estate community.
Along with the resolution, the BOCC sent to the planning commission their draft that encountered such staunch opposition in the summer. The resolution requested that the planning commission advise the BOCC of its progress by July 1, 2011.
Planning commissioners worked diligently throughout 2011, holding meetings two or three times a month and dealing with a revolving door of commissioners who each had to be brought up to speed on progress.
They immediately addressed the point system and the issue of adding more roads to those protected by VIR. The argument for addition of roads was to plan for the future, before development started on roads essential to the tourist economy. The argument against was that there was no evidence of imminent building activity on some roads. The OCPC began a painstaking examination of each proposed road, applying criteria such as development potential near the road, whether it accessed public land, primary use of the road and visual significance. Discussion occurred over many months, until November when the OCPC voted 4-1 to propose adding many county roads to the visual impact corridors.
At the beginning of 2011, regular members of the commission were Ken Lipton, Sheelagh Williams, Carl Cockle, Ted Collin and Bob Luttrell. In March, Cockle resigned and was replaced by Larry Kumpost.
A heated shouting match broke out at the Apr. 21 meeting, when Kumpost and Collin took issue with the commission's evaluation of roads under the criteria. They contended roads could not be evaluated without knowing what the impact on houses would be if the roads became view corridors. Both opposed adding any new roads and allowing the market to ensure mitigation of visual impact.
Chair Ken Lipton accused them of disrupting the process that had been decided upon.
In May, Collin resigned and the BOCC selected Karen Risch to replace him.
Hearing about the loss of tempers at the April meeting, the BOCC (now Albritton, Padgett and Mike Fedel) sent Albritton and Padgett to the next OCPC meeting to assure the planning commissioners that the BOCC directive still stood.
Work continued for the rest of 2011 and into 2012 on roads, the point system, blending definition, alternative energy structures, how to avoid mandating design guidelines and whether existing structures that do not now conform to VIR have to conform if they are remodeled.
In 2012, a request by some planning commission members to revisit the idea of a new Section 30 for residences on mining claims was promptly vetoed by the BOCC. Albritton told the OCPC they were blindsided in 2009, and the BOCC did not put that issue in the 2010 Section 9 resolution.
In April 2012, Kumpost did not seek re-appointment and was replaced by Randy Parker. In May, Luttrell resigned and was replaced by alternate Tim Currin. A few months later, Albritton resigned from the BOCC and Pat Willits was appointed to serve the rest of her term.
More controversy occurred in October, when Currin and alternate John Baskfield sent a letter to the BOCC recommending that the planning commission's discussions on revising visual impact regulations be suspended until "the next BOCC" is seated, after the November election, saying that continuing their meetings would be "divisive and counterproductive." They expressed hope the commission could move forward when a new BOCC gives them "revised direction."
Currin and Baskfield claimed the OCPC was moving toward a "one size fits all" regulatory scheme. They also described Padgett, who was up for re-election, as "distancing herself from the Section 9 work and is not in favor of a 'one size fits all' approach or expanding visual impacts throughout the County." They cited Padgett's statements at recent candidate forums and in campaign advertising as leading to that conclusion.
The letter concluded that neither the current BOCC nor the succeeding one would support the draft advocated by the majority of the OCPC.
Fedel told the Plaindealer he would "probably not" bring the issue of suspending discussions to a BOCC agenda. "We just need to get this (Land Use Code revisions) done," he said.
In the last meetings of 2012 and the first meetings of 2013, the OCPC finalized its draft that adopted a revised, more specific point system and added roads to the view corridors. The vote was 4-1 (Lipton, Williams, Risch and Parker for; Currin against) to hold a public hearing. The hearing is set for Feb. 26 at 7 p.m., at the 4H Center. A possible continuation date is Mar. 21.
The draft Section 9 is available on the county website's land use department page and on ouraynews.com.
Williams' and Currin's terms on the planning commission end Mar. 1. In January the BOCC agreed to allow them to continue serving until the process is over.
Throughout research for this series, rabbit trails beckoned and it took resolve not to follow them and make this a 10-part series. Issues such as adding special permit uses, retail sales in the county, minimum impact PUDs, resort PUDs, family parceling, proposed and rejected low density zone, resort/recreational PUDs, impact fees, commercial uses in the Alpine Zone, the Theobald study growth projections, etc., are peripheral to visual impact and will have to wait for another day.