HomeMy WebLinkAboutStaff Report• •
Exhibits for Public Hearing held on March 1, 2010 for a Text Amendment for
1) Corrections to internal references from one code section to another;
2) Corrections to tables of contents and pages references;
3) Corrections to typographical errors;
4) Amendments to uses listed in Tables 3-501 and 3-502 and certain uses in
Article III;
5) Certain amendments to the Temporary Employee Housing regulations;
6) Clarify the references to the "County Road Standards" for all uses;
7) Clarifications and Amendments to certain uses and review processes;
8) Amendments to the "Notice of Potential Violation" section;
9) Address conservation easements as interests in land;
10)Clarify what submittal requirements are required for a preliminary plan /
final plat combination application;
11) Allow for changes to be reflected in flow charts; and
12)Consolidation of definitions from all sections.
Exhibit Letter
(A to Z)
A
B
Exhibit
Proof of Publication
Garfield County Unified Land Use Resolution of 2008, as amended
C
Garfield County Comprehensive Plan of 2000
D
Staff Memorandum dated3/01/10
E
F
G
H
J
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C01-141/ t r
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Ad ID
Date
101/18/2010
PUBLIC NOTICE
. Time
TAKE NOTICE that the Director of the Garfield
County Building and Planning Department is pro-
posing amendments to the Text of the Garfield
County Unified Land Use Resolution of 2008. The
Board of County Commissioners (with a recom-
mendation from the Planning Commission) shall
make a determination of approval or denial for the
following topics in a noticed public hearing.
The proposed amendments generally include the
following:
1) Corrections to internal references from one code
section to another;
2) Corrections to tables of contents and pages ref-
erences;
3) Corrections to typographical errors;
4) Amendments to uses listed in Tables 3-501 and
3-502 and certain uses in Article I11;
5) Certain amendments to the Temporary Employ-
ee Housing regulations;
6) Clarify the references to the "County Road Stan-
dards" for all uses;
7) Clarifications and Amendments to certain uses
and review processes;
8) Amendments to the "Notice of Potential Viola-
tion" section;
9) Address conservation easements as interests in
land;
10) Clarify what submittal requirements are re-
quired for a preliminary plan / final plat combina-
tion application;
11) Allow for changes to be reflected in flow
charts; and
12) Consolidation of definitions from all sections.
All persons affected by the proposed amendments
are invited to appear and state their views, pro-
tests or support. If you can not appear personally
at such hearing, then you are urged to state your
views by letter, as the Board of County Commis-
sioners will give consideration to the comments of
surrounding property owners, and others affected,
in deciding whether to approve the proposed
amendments. The draft amendments may be re-
viewed at the office of the Planning Department lo-
cated at 108 8th Street, 4th Floor, Garfield County
Plaza Building, Glenwood Springs, Colorado be-
tween the hours of 8:30 a.m. and 5:00 p.m., Mon-
day through Friday.
This public hearing before the Board of County
Commissioners regarding these amendments has
been scheduled for March 1st, 2010 at 1:15 PM
which will be held in the County Commissioners
Meeting Room, Garfield County Plaza Building 108
8th Street, Glenwood Springs, Colorado.
Published in the Citizen Telegram and Post Inde-
pendent on January 28, 2010. [4549886]
Ad shown is not actual print size
• •
MEMORANDUM
TO: Garfield County Board of County Commissioners
FROM: Fred A. Jarman, AICP
Director, Building & Planning Department
RE: Proposed Text Amendments to the Unified Land Use Resolution of 2008
(2"d Half of Batch #1)
Date: March 1, 2010
Background and Purpose
As expected and anticipated, as Staff has been administering the new Unified Land Use
Resolution of 2008 (the New Code), we have identified substantive conflicts, mis-
references, typographical errors, unintended timelines, and unanticipated omissions of
language and regulatory provisions that did not carry over into the New Code from the
Zoning Resolution of 1978, as amended and the Subdivision Regulations of 1984, as
amended (together known as the Old Code). In order to resolve these issues, this
memorandum contains a list of proposed amendments to the New Code to address
these identified issues.
II. Planning Commission Recommendation
The Planning Commission unanimously (vote of 8 to 0) voted to recommend the Board
approve the following amendments to the Unified Land Use resolution of 2008, as
amended. The following is the entire list of proposed amendments which incorporate
the points made above. [Generally, where text is added it is shown as underlined, where
text is deleted it is shown as stricken.]
1. Park & Ride (Should this be considered as a use as we see more requests from the
O&G industry for this type of use?)
Planning Commission Response
Planning Commission asked Staff to bring a definition back to the PC for discussion. Staff
proposes that the PC adopt the following definition:
Park and Ride Facility: A facility where commuters leave their personal vehicles in
a parking lot or parking garage and transfer to a bus, rail system, rapid transit, light
rail or commuter rail, or carpool for the rest of their trip. The vehicle is stored at the
facility during the day and retrieved when the commuter returns. \ eh' l not
might.
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Additionally, Staff suggests adding Park & Ride Facility to Tables 3-501 and 3-502 as a
Limited Impact Review in all zone districts except as a use -by -right in Public Lands.
2. Storage: We only defined "Storage" in "Industrial Activity" in the definitions yet
Tables 3-501 and 3-502 have the following more refined storage types of uses that
are not defined?
i. Storage: Accessory Storage / Warehousing of Materials or Equipment within
a building;
ii. Storage: Cold Storage Plants
iii. Storage: Hazardous Materials requiring a special state or federal permit;
iv. Storage: Supplies, Machinery, Equipment or Products;
v. Storage: Storage, Repair and Dispatch Center from Transit Uses.
Planning Commission Response
Planning Commission asked Staff to bring a definition back to the PC for discussion. Staff
proposes that the PC adopt the following definition:
i. Storage: Accessory Storage / Warehousing of Materials or Equipment within
a building: A commercial building for storage of goods, materials, and
equipment commonly used in commercial or industrial operations including,
but not limited to manufacturers, importers, exporters, wholesalers,
transport businesses, customs, etc.
ii. Storage: Cold Storage Plants: The storage of goods in an artificially cooled
place for preservation.
iii. Storage of Hazardous Materials: The act of storing hazardous waste which
requires a special state or federal permit;
iv. Storage: Supplies, Machinery, Equipment or Products: An area used for
storing machinery, equipment, or products generally associated with a
commercial or industrial activity;
v.
. e .. .. _ .
3. Perhaps we should refine the definition of "Lot" so that we can better deal with the
"contiguous ownership" issue which differentiates tax parcels from zoning. The
present definition of "Lot" is:
A piece of land intended to be separately owned, developed, and otherwise
used as a unit.
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Planning Commission Response
The Planning Commission suggested Lot be defined as: Any legally created parcel of
land, including but not limited to, lots on a legally recorded plat. Contiguous Tots are not
automatically merged based on ownership. See Section /2-'10 for merger. r
4. "Industrial Use or Activity" on page 16-24 in definitions should have a cross
reference to the Standards required in Article 7.
Planning Commission Response
Planning Commission agreed to the following:
Industrial Use or Activity. Uses engaged in processing, manufacturing of materials
from either extracted or raw materials or from previously prepared materials
resulting in a new product designed for wholesale or retail sale. (Note, Article VII of
this Resolution contains specific review standards specific to Industrial Uses.)
5. "Access Routes": This use is defined in Article 16 and only allowed in Table 3-502 on
the Plateau and Gentle Slopes as a Use -by -Right. But prohibited in all other zone
districts. Does the County desire to allow this as a regulated use in other districts?
[Background on this issue: Well pad access routes are currently not regulated by
the County as long as they do not require an Access Route Administrative Land
Use Permit as outlined in Section 3-501. Currently, Access Routes are a use -by -
right only in the Resource Lands and Public Lands zone districts. Grading permits
are currently not required as long as a e emen s require y a grading permit
are included in the Land Use Permit application. 'The Garfield County road
standards as outlined in Section 7-307 start at 11 ADT. To this end, a route which
has 10 or fewer ADT is not subject to these road standards (a single family home
is generally considered 10 ADT). However, the definition of Access Route is broad
enou:h to cover ever thin: from a driveway to a single family home to Garden
Gulch Road. This topic will be back to the BOCC for discussion in the near future.
In the meantime, Staff will be following the Land Use Resolution of 2008 as
written which requires land use permits for all Access Routes outside the RL and
Public Lands Zone Districts.]
Planning Commission Response
Planning Commission recommended allowing "Access Routes" as a use -by -right in all
zone districts adding the language: except as reviewed as part of a land use change
permit. The Tables 3-501 and 3-502 should be amended to reflect this change.
6. The new code allows the "further subdivision of subdivided lots" in Garfield County.
Does the County want to do this?
• •
Planning Commission Response
The Planning Commission agreed that they intended to allow further subdivision of
subdivided Tots in Garfield County.
7. Staff suggests better refine the "Amended Final Plat" process. Does the County
really need a Preliminary Plan" as a submittal requirement? (The original intent was
to allow these requests to be processed as administrative if they were not a
"substantial change"?
Planning Commission Response
The Planning Commission agreed to eliminate the requirement for a Preliminary Plan in
the process so the section would look like the following:
5-501(1) Amended Plat. The process for amending a Final Plat or an
Exemption Plat is set forth Section 5-306, Amended Plat and requires the
following submittal materials and processes.
1. Application Form and Fee
2. Vicinity Map 4-502(C)(2)
3. Preliminary Plan 5 501(G}
4. Final Plat, Amended Final Plat, Amended Exemption Plat
5. Subdivision Improvement Agreement, if necessary
8. Need to define "Affected Property Owner" as it pertains to notice for appeals and
call-ups;
Planning Commission Response
The Planning Commission agreed to delete a refe - es to "Affect ,et'Property Owner"
and replace them with "Adjacent Property Owners" within 200 feet as already set out in
the notice provisions. This way it is consistent throughout the code.
9. Need to refine what's needed for a "combined Preliminary Plan / Final Plat review
such as Process & Submittal Materials. Also need a definition of "Extensive
Engineering."
Planning Commission Response
The Planning Commission agreed to delete the reference to "Extensive Engineering" as
it is too subjective. Staff suggests the "combined application" follow the 2 -step public
hearing process with the Final Plat and other associated documents (Improvements
Agreement, easements, etc.) being tendered in their final form to be signed by the
BOCC either at the public hearing or at a subsequent date.
Staff suggests adding a new section: 5-501(K) Combined Preliminary Plan / Final Plat
Submittal Documents are as follows:
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5-501(K) Combined Preliminary Plan / Final Plat. The Combined Preliminary Plan / Final
Plat requires the following materials:
1. Application Form and Fees
2. Vicinity Map 4-502(C)(2)
3. Final Plat Map (This is to serve as the Preliminary Plan for review)
4. Yield Plan (Conservation Subdivision only)
4. Open Space Plan (If required)
5. Open Space Management Plan (If required)
6. Landscape Plan (Common Ownership Areas) 4-502(C)(5) (If required)
7. Impact Analysis 4-502(E)
8. Land Suitability Analysis 4-502(D)
9. Lighting Plan consistent with standards in 7-305(B)
10. Visual Analysis
11. Final Engineering Reports and Plans
a) Streets, trails, walkways and bikeways
b) Engineering design and construction features for any bridges, culverts
or other groundwater drainage structures to be constructed marked
"approved for construction"
c) Identification and mitigation of geologic hazards
d) Final sewage collection and water supply and distribution systems
plans. If approval from the Colorado Department of Public Health and
Environment (CDPHE) is required for these systems, such approval
shall be tendered as part of this submittal
e) Erosion and Sediment Control Plan 4-502(4)
f) Final documents demonstrating legal water including but not limited
to approved well permits, augmentation plans, substitute water
supply plans from a water conservancy district
g) Approved highway access permits from the Colorado Department of
Transportation, if applicable
h) Improvements Agreement including final cost estimates for public
improvements, Covenants and Restrictions and By-laws, Articles of
Incorporation for the HOA
i) The applicable Final Plat certifications (to be found in the Workbook
in the Building and Planning Department) which include listing all
mortgages, liens judgments, easements, contracts, and agreements of
record regarding the land to be platted. The Board of County
Commissioners may require, at its discretion, that the holders of such
mortgages, liens, judgments, easements, contracts or agreements
shall be required to join in and approve the application for Final Plat
approval before such Final Plat is accepted for review. All other
exceptions from title shall be delineated. These certifications are
found in the Workbook in the Building and Planning Department.
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10. The current definition of "Floor Area" applies to residential development. Should it
be adjusted to apply to a commercial storage building or just to a dwelling? If it
applies to a storage building under Commercial Zoning FAR then the definition of
floor area may not work since storage is excluded.
Planning Commission Response
The Planning Commission agreed to leave this section as it is currently written.
11. Exempt Federal land split from subdivision;
Planning Commission Response
Yes. That was intended by the Planning Commission.
12. Section 1-104 reword? What needs to be in compliance with the LUC? How is a
building permit in compliance with the LUC? I think it means that the intended use
of the structure or improvement for which the building permit is requested is
permitted under the LUC.
Planning Commission Response
Yes. The Planning Commission agreed that the intent was that the "use" is in compliance
with the LUC.
13. Section 1-109(C) needs to be reworded as it is not a complete sentence. What is the
intent? Is the map being incorporated by reference? The actual county road map
per that reso and the regs adopted, as defined in the regs, is the 2004 Garfield
County Bridge Weight Limit and Extra Legal Restriction Map adopted effective
January 1, 2004. Who keeps the map? How does it get amended? Has it been since
2004? Do we want to include, once we reword, "and any amendments thereto that
have been adopted by official action of the Board of County Commissioners or that
may be adopted by the Board of County Commissioners in the future" or do we
want to amend the LUC every time the road map is changed?
Planning Commission Response
The Planning Commission agreed to strike this section altogether. The referenced
Resolution 2003-113 adopts the Road and Bridge Right -of -Way Regulations as does not
apply here.
14. Are all Water Reservoirs, regardless of size, subject to regulation unless they are
primarily Ag? The definition on 16-52 ends with a comma.
Planning Commission Response
Yes. The Planning Commission intended to do this. The comma would be changed to a
period.
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15. On Public Lands, the zone district is defined in 3-101(F), but there are no
regulations for that district as there are for every other zone district. Was this
intentional? On the use tables, what is the thinking behind allowing everything as a
use by right except outdoor rec/commercial; extraction; campground/RV park? The
US government could build an office building, a housing complex, etc. without any
review anywhere on land they own in the county?
Planning Commission Response
Yes. The Planning Commission agreed that this was intentional and to leave this as it is
currently adopted.
16. Section 6-202(G), page 6-8 and 6-9: So, the discretion to the Director under this
section is only to determine whether or not the amendment is a substantial
modification for purposes of deciding what materials need to be submitted? It still
proceeds as a rezoning, whether it is a substantial modification or not, still requiring
the review process in 4-201, page 4-26?
Planning Commission Response
The Planning Commission asked Staff to return to them with a proposal to address these
issues. Staff suggests that if the Director deems a PUD Amendment request to be a non -
substantial modification, then the application should only be processed through the
"administrative" process and not sent through the full rezoning request. Further, the
Director determines what materials are necessary to allow that determination to be
made as is the currently adopted language.
17. Section 4-201 and probably every other section in article 4 and elsewhere in the
code incorrectly refers to submittal requirements in 4-601, when the submittal
requirements are detailed in Article 4 Division 5. A global search of the entire code
is needed to catch all these. There are many in Article 6.
Planning Commission Response
This has already been completed from the earlier code amendments.
18. Section 6-301(C)(3), page 6-12: Add a subsection c:
Land subject to a Conservation Easement. If the land is subject to a
conservation easement, the applicant shall submit a letter signed by the
holder of the Conservation Easement consenting to or joining in the
application. A copy of the Conservation easement shall be submitted with
other documentation of ownership. (This same provision should be inserted
in every section of the code that discusses the application Form and
ownership.)
7
Planning Commission Response
The Planning Commission agreed to the following language to be added as Section 6-
301(C)(3)(c):
5-t1:
Land Subject to a Conservation Easement: If land is subject to a conservation
easement, the applicant shall:
1) Submit a letter signed by the holder of the conservation easement stating
that the Application is consistent with the terms of the conservation
easement;
2) Submit a letter signed by the holder of the conservation easement stating
that the Application is not consistent with or is prohibited by the terms of the
conservation easement;
3) Submit a letter signed by the holder of the Conservation Easement waiving
the right to comment on or participate in the Application process; or
4) Submit evidence satisfactory to the County showing that the holder of the
conservation easementnhas no right to consent to or join in the Application.
A copy of the conservation easement shall be submitted with other documentation
of ownership.
19. Amend the definition of Conservation Easement on page 16-11, to include: "A
Conservation Easement is an interest in real property."
Planning Commission Response
Planning Commission agreed to do this. The new definition shall read as follows:
Conservation Easement. The right of the owner of a property to prohibit or require
certain acts with respect to the use of the property in order to maintain the
property in a manner that will preserve its value for, but not limited to agriculture,
recreation, education, habitat, open space, or historical importance. A Conservation
Easement is an interest in real property.
20. Section 12-106 "Mergers." Suggest relocating the "Merger Section" from Article 12
to Article 2. In that way, we could add it as part of Article 2, Section 2-105(D) which
could be entitled "Voluntary Merger" and Section 2-105(E) could be "County-
initiated Merger." We should also include in the merger discussion that for
voluntary mergers, the owners of the merged parcels need to submit a request and
Notice for BOCC signature and subsequent filing, as we decided in the Upper Divide
merger.
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Planning Commission Response
The Planning Commission agreed to this change. The Planning Commission also agreed
that this section on "Mergers" really ought to be located in Article 5 rather than in
Article 12 since it really exists in the "subdivision" discussion.
21. Section 12-107 on page 12-8: Change "notice of potential violation" to "Notice of
Anticipated Enforcement" and reword line 5 to read: "except in the case of Notice
of Anticipated Enforcement, pursuant to which the application for a Takings
Determination must be submitted within three (3) working days of receipt of that
notice."
Planning Commission Response
The Planning Commission agreed to this change. As a side note, Staff will be bringing a
text amendment to you in the near future that eliminates the "takings process" from
the Code Enforcement Section.
22. Section 7-309(6)(2) Easement Location currently reads: "All utility lines, including
appurtenances, shall be placed either within public road rights-of-way or within the
subdivision easements or rights-of-way provided for the particular facilities in
accordance with the approved Utility Service Plan."
Does the Planning Commission intend this section to also pertain to large tracts of
land (Chevron, EnCana, Oxy, ExxonMobil, etc.) and medium size tracts of land
where, for instance, electricity is generated on that parcel and transferred to
another location on the same parcel or where utilities are brought in to that
property to serve facilities located on the same parcel? This section clearly works
for a subdivision, but it is less clear how it applies to Land Use Change Permits.
Planning Commission Response
Planning Commission agreed that this language in Section7-309(B)(2) Easement Location
was intended to apply to subdivisions. This the proposed language of that section would
read:
7-309(6)(2) Easement Location. As applied to subdivisions, all utility lines, including
appurtenances, shall be placed either within public road rights-of-way or within the
subdivision easements or rights-of-way provided for the particular facilities in
accordance with the approved Utility Service Plan."
23. Section 7-304(K) 1 thru 6 should be deleted in their entirety and replaced with:
"accessible parking shall comply with the Counties adopted construction Codes and
the adopted or most recent Edition of CABO/ICC ANSI A 117.1"
Planning Commission Response
Planning Commission agreed to this change.
9
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24. Section 7-304(G)(1) may cause confusion because accessible parking spaces and
drop-off is limited to a MAXIMUM of 2% slope. Staff suggests adding "or as
required by applicable Codes and/or Statutes".
Planning Commission Response
Planning Commission agreed to this change.
25. Section 10-103(6)(3): Staff suggests removing all the references to the ADA and
replacing them with "applicable accessibility Codes and/or Statutes". The reason
being other Codes/Statutes may be applicable, for instance ABA, UFAS, FHA, CRS
Title 24 and the ADA Title II and Title III.
Planning Commission Response
The Planning Commission asked staff to revisit the thinking on this one and bring it back
to the Planning Commission. Andy Schwaller and I discussed this and Andy pointed out
that the term "ADA" is generic is only one of many codes that apply to accessibility
concerns / requirements of certain situations. This change allows flexibility to apply the
correct code for the specific situation.
26. Once the processes set out in Articles 4 and 5 are fully amended, Staff suggests
amended the flow charts in those Articles IV and V to graphically reflect those
changes;
Planning Commission Response
Planning Commission agreed to this approach.
27. Pipelines: Pipelines and their review process were transferred directly from the Old
Code to the New Code in their entirety. The pipeline "administrative process" in
Pipelines is much different than the Administrative Process in Article IV. Does the
Planning Commission wish to require pipeline development plans go through the
general Administrative Process in Article IV?
Planning Commission Response
Planning Commission agreed to leave this process is place as currently adopted.
28. Pipelines: Section 9-113 on page 9-9 allows for "Amendments to an Approved
Pipeline Development Plan." This section does not set out what is to be required to
be submitted or what process is used to evaluate an application that has been
determined to be not a substantial modification. Staff suggests that the Application
for an "Amendment" include the Application, payment of fees, a letter addressing
how the change is not •- - • I . well as supporting materials to
support such a position. The Director then has the administrative discretion to
approve that request.
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Planning Commission Response
Planning Commission agreed to this approach.
29. The definition of Principle Use on page 16-35 conflicts with Section 3 — 201(B) on
page 3 — 6 which limits the number if principle uses on a property. Staff suggests
limiting "primary" uses to one on any one property can be allowed on a lot at any
one time. This the definition on page 16-35 should be amended to the following:
Principal Use. The primary purpose or function for which a parcel or
structure is used, which may include multiple uses approved as a Major
Impact Review or Limited Impact Review. A non-commercially/industrially
zoned parcel shall not be used for more than one principal use, except for
allowed agricultural uses, mining uses, or a combination thereof.
Planning Commission Response
The Planning Commission agreed to leave the definition of Principal Use as it currently
appears and replace the section in Section 3-201(B) with the same definition as follows:
Section 3-201(B) More than One Principal Use on Non -commercially /
industrially zoned land. A non-commercially/industrially zoned parcel shall
not be used for more than one principal use, except for allowed agricultural
uses, mining uses, or a combination thereof. may include multiple uses
approved as a Major Impact Review or Limited Impact Review.
30. Should the code include Section 3-201(A) on page 3-5 if the code already
determines what level of review uses require in the tables 3-501 and 3-502?
Planning Commission Response
No. Planning Commission agreed to delete the following section as it is already covered
in tables 3-501 and 3-54.
Section 3-201 General Restrictions
required for any use or property that includes any one of the following elements.
1. Thi use will generate p ak trip loading in excess of [50] peak hour trips
per lot.
2. The use hasan-occupantIoad gr ater than or equal to 100 persons per
let
3. The use has a wastewater flow greater than or equal to 2,000 gallons
per day per lot.
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4. The 1ot does not satisfy lot arca requirements due to
development restrictions for lot slope, set forth in Section 3 201(C),
and approval of a smaller building envelope would be necessary for
the proposed land use.
5. Any use exceeding maximum building height for a zone district.
31. The citation to factory -built nonresidential structure should be 24-32-3302(9) not
24-32-3302(a);
Planning Commission Response
Planning Commission agreed to this definition.
32. Small/Minor/Major — Add language allowing 'nsite Wastewater Treatment Systems
to be utilized. Remove references to "stored" water;
Planning Commission Response
Since the Temporary Employee Housing section was adopted, newer "reuse" /
"recycled" systems were brought to the County's attention where treatment systems
would process wastewater generated from the TEH and used in the drilling process. This
suggestion simply allows flexibility for those systems to be utilized. Staff suggests this
use and the following definition be added within the context of the TEH regulations:
Onsite Wastewater Treatment System:
A compartmentalized water treatment system associated with an approved ISDS permit.
This system is intended to treat domestic wastewater generated onsite for reuse. Water
treatment technologies may include, but not be limited to reverse osmosis,
microfiltration membranes and/or distillation processes. This system is typically
deployed as an alternative to vault and haul wastewater disposal systems. Treated
water output from the system may be utilized in downhole drilling operations on the
subject parcel. Any surface use such as dust mitigations, soils compaction etc shall be
appropriately permitted via local land use authorities and/or CDPHE, as applicable.
33. Update reference to ISDS regulations from 1994H-136 to 2008s,,,s amended;
Planning Commission Response
Planning Commission agreed to this definition.
34. Small: Remove reference to "Applicant", change to "Temporary Employee Housing
Operator";
Planning Commission Response
Planning Commission agreed to this change.
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35. Add the definition of "Temporary Employee Housing Operator" or "Operator" —
"The individual or entity that is the permitee under the state or federal permit for
the Permitted Site and is therefore legally responsible for installation, hook-up,
operation and removal of Factory Built Nonresidential Structures and/or
recreational vehicles and all associated infrastructure used in a Small, Minor or
Major Temporary Employee Housing Facility as defined in Article XVI."
Planning Commission Response
Planning Commission agreed to this definition.
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BJORK . LINDLEY . LITTLE . PC
LAWYERS
PETER A. BJORK t
LAURA LINDLEY
DAVID R. LITTLE
ROBERT C. MATHES t0
DARIN B. SCHEER t
KATHLEEN C. SCHRODER
JILL D. CANTWAY t
KEENAN COPPLE tt
SARAH SORUM
tAlso admitted in Wyoming
Also admitted in the District of Columbia
11 -Also admitted in New Mexico
MEMORANDUM
TO: Garfield County Planning Commission
FROM: Jill Cantway, Bjork Lindley Little PC
DATE: May 20, 2009
RE: Revised Proposed Change to Section 34 of the Proposed Text Amendments
We previously submitted a Memorandum to the Commission dated April 2, 2009. After discussing
the issue with a conservation easement owner, we have determined that the following language would
be more appropriate. The following language would grant easement owners the ability to not respond
to a request from an applicant for a letter accomplishing either (1), (2) or (3), below. In certain
instances, an easement owner who has the power to contest a land use application may wish not to
contest or be involved with the process at all. The following language recognizes this as a possibility
and makes sure that such a situation would not prevent an application from moving forward.
Therefore, we recommend the Commission adopt the following text in lieu of the proposed change
and in lieu of the text we proposed in our Memorandum dated April 2, 2009:
Land Subject to Conservation Easement: If land is subject to a Conservation Easement and the
instruments of record in the county records relating to the Conservation Easement vest the holder of
the Conservation Easement with the right to authorize or prohibit the proposed land use and the
rights of the holder of the Conservation Easement are superior to the rights of the applicant, then the
applicant shall submit a letter signed by the holder of the Conservation Easement either (1) consenting
to the application, (2) joining in the application or (3) waiving any right such party may have to join in
said application and shall submit a copy of the Conservation Easement with other documentation of
ownership. Notwithstanding the foregoing, in the event that the holder of the Conservation Easement
fails or refuses to provide a letter to the applicant meeting the requirements of (1), (2) or (3)ofthe
preceding sentence, the holder shall be deemed to have waived the right to object to the proposed
land use if (A) the applicant submits proof that notice of the proposed land use was provided to the
holder of the Conservation Easement at least 30 days prior to the Board's action on the application,
and (B) the holder of the Conservation Easement has not submitted to the Planning Commission
within 25 days after receipt of applicant's notice a written objection to the proposed land use setting
forth the reason(s) for the objection and evidence that the holder of the Conservation Easement
possesses the right to object to the proposed land use.
BJORK . LINDLEY . LITTLE . PC
LAWYERS
PETER A. BJORK t
LAURA LINDLEY
DAVID R. LITTLE
ROBERT C. MATHES tO
DARIN B. SCHEER t
KATHLEEN C. SCHRODER
JILL D. CANTWAYt
KEENAN COPPLE tt
SARAH SORUM
MEMORANDUM
TO: Garfield County Planning Commission
FROM: Bjork Lindley Little PC
DATE: April 2, 2009
fAiso admitted in Wyoming
*Also admitted in the District of Colombia
ttAlso admitted in New Mexico
RE: Comments on Section 34 of the Proposed Text Amendments to the Unified
Land Use Resolution of 2008
Introduction
We have reviewed the suggested modification to the Unified Land Use Resolution of 2008
(the "code") to be proposed to the Garfield County Planning Commissioners. Section 34 of the
Proposed Text Amendments proposes to add the following text to each section of the code that
discusses application form and ownership.
Land Subject to Conservation Easement: If land is subject to a conservation
easement, the applicant shall submit a letter signed by the holder of the Conservation
Easement consenting to or joining in the application. A copy of the Conservation
Easement shall be submitted with other documentation of ownership.
The purpose of this proposed modification appears to be to provide additional protection to
the holder of a conservation easement. However, this proposed modification, as drafted, is over-
reaching, unlawful and may have the unintended consequence of fewer conservation easements being
granted by surface owners in the future because it grants additional rights to the holder of a
conservation easement at the expense of the party who originally granted the conservation easement.
In the conclusion of this analysis, we have proposed alternative language, which we believe fulfills the
intent of protecting the holder of a conservation easement, while also protecting the reserved rights of
the surface owner and avoids unnecessary litigation in the future.
This provision is unlawful because it grants all owners of conservation easements ("easement
owners") the power to veto an application. Conservation easements vary in scope (the instrument
creating the easement may limit its scope) and in power (an easement owners rights may be junior to
rights of third parties). This proposed amendment would have the effect of vesting some easement
owners with more rights than they actually own.
Analysis
1. The Purpose of a Conservation Easement is to Restrict Certain Activities on the Lands.
A conservation easement is a "right in the owner of the easement to prohibit or require a
limitation upon or an obligation to perform acts on or with respect to a land ... owned by the grantor
appropriate to the retaining or maintaining of such land ... predominantly in a natural, scenic, or open
condition, or for wildlife habitat, [etc.]." C.R.S. § 38-30.5-102.
Conservation easements restrict certain activities on the lands they cover, however the
easement owner has only the rights that are defined in its granting instrument, subject to any rights
that have been reserved or deeded away prior to the creation of the easement.
2. Easement Owners Rights are Limited if their Rights are Junior to those of Third Parties.
If an easement owner's rights are junior to the rights of the applicant in a particular land use
application, the easement owner does not have a right to contest that application. It is a basic tenet of
property law that a grantor cannot grant to a grantee more than a grantor owns. Therefore, one must
look to what the grantor owned when he/she granted the easement. For example, if a grantor had
already entered into a surface use agreement for drilling or mining operations on the surface of the
land, then the grantor has no right to later prevent these operations and cannot later grant to the
easement owner the right to prevent these operations. In that situation, the drilling or mining
company's rights are senior to those of the easement owner.
3. Easement Owners Rights are Limited by the Language of the Granting Instrument.
The language of the granting instrument must be examined to determine the scope of the
conservation easement. C.R.S. § 38-30.5-103(4) ("The particular characteristics of a conservation
easement in gross shall be those granted or specified in the instrument creating the easement."). The
language of the instrument may, for example, specifically limit an easement owner's ability to contest
certain land use applications. In that case, an easement owner should not have a right to join in or
contest those land use applications.
4. Easement Owners do not have the Same Rights as Surface Owners.
This proposed amendment would effectively put easement owners on equal footing with
surface owners. However, easement owners necessarily own a lesser interest than a surface owner.
When a grantor grants a conservation easement, all interests not conveyed to the easement owner
remain in the ownership of the grantor, "including the right to engage in all uses of the lands ... that
are not inconsistent with the easement or prohibited by the easement or by law." C.R.S. § 38-30.5-
105. One must, again, examine the granting instrument to determine what interests were conveyed to
the easement owner. Again, this is a very fact -specific inquiry and a blanket provision covering all
conservation easements is inappropriate.
5. There is Potential for Abuse if this Change is made.
Abuse of the code could happen if, for example, a surface owner does not own rights to
prevent an application for conducting oil and gas operations on their land (because of a prior surface
use agreement, etc.), then, under this change, the owner could simply grant a conservation easement
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to a third party who could then withhold their consent to the application even though the owner never
had this power in the first place. Of course, such a situation would likely not occur because no court
would find this conclusion to be lawful.
Conclusion/Recommended Text
Conservation easements vary in scope. Not all development applications will impact or
otherwise affect the easement owners' rights.
We recommend the Commission adopt the following text in lieu of the proposed change:
Land Subject to Conservation Easement: "If land is subject to a Conservation
Easement and the instruments of record in the county records relating to the
Conservation Easement expressly vest the holder of the Conservation Easement with
the right to authorize or prohibit the proposed land use, then the applicant shall submit
a letter signed by the holder of the Conservation Easement either (1) consenting to the
application, (2) joining in the application or (3) waiving any right such party may
have to join in said application and shall submit a copy of the Conservation Easement
with other documentation of ownership.
The above text would ensure that all easement owners who have the right and the power to
join in a land use application are so joined. The above text would not grant conservation easement
owners who do not have the power or the right to join in a land use application, as reflected in the
instruments of record, from so joining.
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