The Boulder County Commissioners (BOCC), whose job includes the governance of Niwot, abdicated that role to a Land Use Department whose “arrogance of power” as Niwot resident and community volunteer Laura Skaggs put it, is out of control. The April 23 hearing on changes to the Niwot Rural Community District (NRCD) regulations once again demonstrated a blatant disregard of previous direction from the BOCC to Land Use and Transportation departments, most especially with regard to opening the alley behind 2nd Avenue to immediate use by commercial property owners, as well as a disregard of those most affected by the changes.
Mike Thomas of Transportation and Dale Case of Land Use presented draft language that would require “a study” to be paid for solely by commercial property owners, before any work could be done to make the commercial properties accessible for all purposes through the existing public alley.
Property owner Anne Postle testified that in checking with companies who perform such studies, the minimum cost was estimated to be $50,000. When questioned by Commissioner Elise Jones, Thomas could not even venture a guess as to what it would cost. After a painfully long deliberation by the commissioners, the nature of the required study was pared down, though the BOCC ultimately passed the resolution without specific language to address the issue. Given past efforts of land use, who knows what the final NRCD provisions about the alley usage will be.
The alley usage is just one example of how land use bullies property owners into acceding to restrictions that fly in the face of the law, common sense and good planning. In 1996, the county prepared an alley study, which concluded that commercial property owners on 2nd Avenue should have very limited access to the alley, while 3rd Avenue residents were allowed full use of the alley.
The study noted that it was subject to an awaited opinion from the Boulder County Attorney. That opinion was issued in 1997, concluding that the alley was a public right-of-way, that all adjacent property owners were entitled to use it, that no property owner could interfere with use of the alley by another adjacent property owner, and that all adjacent property owners were responsible for maintaining the alley. The opinion was buried, ignored, and the “study” was used to force commercial property owners to access the back of their properties from 2nd Avenue to gain approval of their development plans.
The supposed change in policy with regard to use of the alley by commercial property owners, which came only after the BOCC walked the alley with Niwot Local Improvement District Advisory Committee members (LID) last fall, came with so many conditions imposed by land use that it remains to be seen whether usage of the alley will change.
Among the other changes invented by a Land Use Department run amok is a Floor Area Ratio, or FAR. Ultimately, a FAR of 0.6 was imposed on the commercial block of 2nd Avenue between Franklin Street and Niwot Road (Second Block). That means that if a one-story building were erected on a property, it could at most cover 60 percent of the lot, and if a two-story building were erected, it could only cover 30 percent of the lot. Land Use backed off from imposing a FAR on the First Block, because it was deemed unnecessary because most of it is built out. It also avoided a discussion of the inconvenient fact that some properties on the First Block already have a FAR of 1.8, and no one is complaining about them.
Development plans must also account for on-site parking, setbacks and landscaping requirements. Under former regulations, there was no such thing as FAR, and for 25 years, property owners were able to work within the constraints noted, plus height limitations, to come up with acceptable plans after numerous required reviews.
Even the BOCC had difficulty understanding FAR. Commissioner Matt Jones said, “I have questions around the FAR, and I’ve been trying to get my arms around that and what that means. And currently what’s happening so I can have a reference as to what the growth might be.”
Land Use Director Dale Case was more than happy to oblige, using a “parade of horribles” chart that showed how much more development would be allowed in the block with a FAR of 0.6 (67 percent over existing), as well as 0.7 (95 percent over existing) and increasing increments. What he neglected to say, until vaguely admitting under questioning, is that existing conditions on many of the commercial properties, such as existing historic structures and their placement, make it extremely unlikely that development on those properties would even approach 0.6 FAR.
Case noted that the Niwot Inn, “a property which people respect and would like to emulate in the community,” has a lot size of 14,500 square feet, and currently has 8,406 square feet of above-grade structures. He noted that at .58 FAR, it’s closest to the 0.6 FAR maximum, but the new regulation would still allow a 300 square-foot increase in structures on the property, as if that were significant. So even if the Niwot Inn were to eliminate the driveway from 2nd Avenue and use the alley for access, the new regulations would essentially prohibit any further development on the driveway area.
Until now, development regulations in the NRCD applied equally to all properties in the district, with the exception of Historic Review requirements in the block between Murray Street and Franklin Street plus the Colterra property (First Block), and different setbacks in the Second Block. Now there are different regulations that apply to each block of the NRCD.
The NRCD was established with the approval of the commercial property owners in 1993, with a simple set of regulations that worked reasonably well until 2018. The initial regulations included a provision that any changes had to be approved by a majority of the property owners.
In 2012, the regulations were amended following a study on parking and connectivity, to simplify the square footage required for different uses, such as office, restaurant and retail, by setting one uniform standard. Those changes were approved by a majority of the property owners, and went through planning commission and BOCC hearings without opposition.
There was one catch, however. The Land Use Department also slipped in a change eliminating the requirement for future approval by the property owners of any changes, saying that if minor changes to the parking regulations in the future based on experience, land use didn’t want to have to go back to the property owners for approval.
The contrast between the 2012 process, and the 2018-19 process, demonstrates the true colors of the BOCC and the Land Use Department. In the fall of 2018, a group of 3rd Avenue residents complained to the county about recent development across the alley, saying they did not receive notice of the proposed plans. They didn’t ask for a moratorium, but wanted the county to listen to their concerns.
Rather than go to the Niwot LID, whose members are all appointed by the BOCC and represent business owners, property owners, residents and community organizations, to discuss the issues raised, the BOCC, at the urging of the Land Use Department, imposed a six-month moratorium on development in the entire NRCD, without notice to anyone in Niwot. This, in spite of the fact that the Land Use Department won’t even accept development applications without a several-month waiting period; but that’s another subject for another day.
The BOCC later apologized for how the moratorium was imposed, and tried to placate the business community by removing it for the First Block, in an ineffective effort to allow Colterra to rebuild quickly.
Why was it ineffective? Because Land Use, once again, misled the BOCC by omitting the fact that Colterra had to have parking leased from other property owners to satisfy its parking requirements, and those owners were still subject to the moratorium and not about to lease parking spaces when they didn’t know what the new regulations would require of them.
Land use describes the new NRCD regulations as a compromise, after listening to all of the input from the community. But the new regulations were, in fact, opposed by the Niwot LID, by the Niwot Business Association and by the entire Niwot business community as too restrictive, too complicated, and unnecessary. Rather than build a consensus following a thorough study by a representative group, as was done in 2012, land use chose to impose its will on the Niwot business community, because it could.
No longer did it need the approval of the Niwot commercial property owners as it did in 2012. The resulting acrimony between the business community and the 3rd Avenue residents will not soon go away.
The error that the Niwot community made was believing that the BOCC trusted Niwot, including the Niwot LID, the Niwot Business Association, and the larger Niwot community, to do what was best for the community. It is now clear that such trust, if it ever existed, is broken.
Instead, the BOCC blindly follows a Land Use Department that even ignores clear direction from the BOCC to follow its own agenda, one which is focused on limiting commercial development, even when it flies in the face of the Boulder County Comprehensive Plan and good planning.
Two BOCC positions will be up for election, and it will be incumbent upon Niwot residents to ask hard questions of the candidates, and hopefully elect commissioners who will help restore trust with the Niwot community.