EL PASO COUNTY POLICY PLAN


 CHAPTER 1-B

 SECTION 15.0 LAND DEVELOPMENT REGULATIONS

BACKGROUND REGULATORY BACKGROUND AND AUTHORITY
As an advisory document, the County-Wide Policy Plan relies primarily upon the County's system of land development regulations for its implementation. While the County Master Plan is often considered as a source of guidance in decisions concerning land development, it is the regulations, such as those governing zoning and subdivision, which have the force of law.
Counties rely on the State Statute for authority to regulate in the area of land use and are specifically vested with only those powers granted to them through statute. Among these powers are the authority to enact and administer zoning and subdivision regulations, permit solid waste sites and facilities and to govern in a few other areas related to land use through the use of ordinances.
The authority for approval or disapproval of most land use applications ultimately rests with the Board of County Commissioners; however, in most cases the applications are first considered by the Planning Commission for a more detailed review and recommendation. The Planning Commission is a volunteer advisory board appointed by the Board of County Commissioners pursuant to State statute. Another volunteer body, the Board of Adjustment, is specifically responsible for hearing requests for relief from the physical requirements of zoning and making a final determination.
Land Development Process
Many of the County's land use regulations (including those related to zoning and subdivision) are currently contained within the El Paso County Land Development Code. A schematic diagram which outlines the El Paso County development process is attached as an appendix. Although procedures vary according to individual circumstances, with larger projects the most traditional process begins with a Sketch Plan submitted for the entire property. This depicts the overall mix of uses and access in conceptual form.
This is followed by one or more applications for rezoning of the property, if needed. The next step is the Preliminary Plan for subdivision. This is where most of the review takes place and the detailed planning is accomplished. Issues such as water, sewer, soils and geology, drainage and erosion control and roads are thoroughly reviewed and addressed . Preliminary plans generally encompass the entire development to allow for a good look at the "big picture." The final step is the Final Plat which is largely administrative in nature, but at which point all requisite fees must be paid and documents recorded. Included with the final plat are detailed construction drawings for roads and drainage improvements. Administration of building permits related to these subdivisions is the responsibility of the Pikes Peak Regional Building Department, but potential builders must check back with the Planning Division to verify compliance with zoning and subdivision requirements. As development proceeds through this process, the requirements generally become more detailed and rigorous. Two of the most fundamental elements of the land development process are zoning and subdivision.
Zoning
Zoning is a commonly used system of land use regulation which relies principally upon designation of districts for which only specific categories of uses are allowed, either as a use by right or use subject to a special review and approval process. Zoning codes or resolutions also govern such areas as allowable density, maximum lot area coverage, maximum heights and minimum setbacks from property lines or other uses, such as billboards or adult uses. Property owners have the option of applying for a variance of use in the event their proposed use is not consistent with the underlying zoning; however, the standard for approval of a variance is relatively rigorous. Zoning was first applied to the unincorporated areas immediately surrounding Colorado Springs in 1942. Since then, zoning has been applied progressively to the remainder of the western and central portions of the County but not to large eastern portions of the County. Enforcement of zoning is accomplished primarily through the checks and balances built into the development review process (i.e. check-offs required prior to obtaining a building permit). Complaints from residents and property owners are also investigated by Planning Division enforcement staff. This process ordinarily begins with attempts at voluntary resolution of the complaint, but occasionally the County is required to follow up with appropriate legal action.
Subdivision
Subdivision is a State-mandated process governing most divisions of property which result in the creation of any parcels of land that are less than thirty-five (35) acres. The process outlines requirements for surveying of the property, creation of lots and streets and recording of appropriate legal documents. Additionally, the regulations stipulate the studies necessary to document impacts in areas including geologic hazards, drainage and flood plains and traffic. Also outlined are procedures for review and input from interested agencies and adjoining owners. The regulations further include detailed standards for provision of needed on-site facilities and services along with dedications of land and/or fees required to address infrastructure demands potentially created by the development.
While many on-site and some off-site fiscal impacts are addressed through the subdivision process, the County currently does not require a formal fiscal impact analysis as part of the development review process. Likewise, the principle of concurrency (ensuring that adequate facilities and services are available at the time they are needed) provides the logical basis for many of the County’s subdivision regulations; however, at this time the County does not apply a distinct concurrency management system as part of its development process.
ISSUE 15.1 Maintain Efficiency and Balance
The classic paradox in land development is how to keep things simple, cost-effective and reasonably non-onerous while at the same time "covering all the bases" in providing residents and tax payers with the development-related protections they desire. The County's responsibility to control the long-term public costs of development also needs to be addressed directly or indirectly through the regulatory structure.
The unincorporated County has grown in both population and in the complexity of its land use issues. The County's regulatory structure has grown correspondingly. From the public’s standpoint, land development regulations may be viewed as either too permissive where someone believes they will be adversely impacted by a use, or too limiting where someone would like to establish a use without the interference of local government or neighboring property owners. Additionally, because much of the eastern County is unzoned at this time, the basic tool for implementation of land use planning is not available in these large areas.
Development in rural areas presents land development regulation issues of particular concern. The larger issue involves the challenge of applying a regulatory structure to these areas when the Land Development Code has been designed primarily to meet the needs of more urban development. This situation is complicated because counties have no statutory authority to address the potential impacts of divisions of land into parcels of 35 acres or greater through the subdivision process.
The issue of a property owner’s expectations for their land is also integrally tied to the regulatory process. Property owners would like to rely on prior land use approvals and maintain their "rights" for uses which either exist or are allowable under current regulations. The County respects this overall concept but also seeks to maintain its flexibility to implement revised regulations in response to changed conditions or to delete prior approvals which have not been active for a reasonable period.
Goal 15.1 Maintain efficiency and balance in the adoption, application and enforcement of land development regulations.
Policy 15.1.1
Minimize the number of use variances processed by discouraging most requests which deviate from the zoning requirements or revising the Land Development Code to fully incorporate those uses which may not be completely addressed.
Policy 15.1.2
Limit the use of conditions of approval which can reasonably be expected to result in the need for extraordinary amounts of enforcement or administration.
Policy 15.1.3
Evaluate and fully consider the county-wide fiscal impacts of proposed development which can be demonstrated to be reasonably related to the proposed development, recognizing in some cases the County's regulatory authority in this area may be limited.
Policy 15.1.4
Encourage the use of pre-application conferences among applicants, Planning Division staff, key agencies and potentially concerned or affected property owners to identify and address significant issues early in the planning process.
Policy 15.1.5
Enforce zoning and subdivision regulations in a manner which is as equitable and non-intrusive as possible given the limitations imposed by State statute and available staff resources.
Policy 15.1.6
Encourage voluntary compliance with land use regulations, but also recognize the need to act decisively in the public interest in situations where there is an immediate threat to health and safety or where the property owner has demonstrated continuing recalcitrance.
Policy 15.1.7
Endeavor to refine the Land Development Code to better address the non-residential uses which are reasonably needed to serve rural and rural residential areas.
Policy 15.1.8
Encourage the State legislature to grant counties authority to address concerns such as access and water supply associated with the division of land into parcels of 35 acres or larger.
Policy 15.1.9
Maintain efficiency and balance between opposing constituents through the use of objective outside mediators.
Policy 15.1.10
Carefully consider the impacts that decisions to revise or implement local development regulations may have on the options property owners currently have for the use of their land.
Policy 15.1.11
Recognize vested property rights consistent with State Statute.
Policy 15.1.12
Comprehensively address, and if appropriate, delete, prior land use approvals which are no longer viable.
Policy 15.1.13
Address obsolete zone districts through a comprehensive County-initiated rezoning process.
Subdivisions are also factored into the equation. Altogether, these processing costs can often amount to several thousands of dollars per acre; however, in some cases, the value of time has the greatest financial impact.
ISSUE 15.2 Manage Development Review Costs
From a developer's perspective, there exist a variety of costs associated with land development regulations or the approval process. Direct County submittal fees are usually the least significant factor. These fees are fairly low and typically do not approach the full cost of processing the applications. In contrast, the costs required for the documents, surveys and analyses and professional representation associated with the development review process can be very substantial. This is especially true when the fees which must be paid in association with recording Time invested in the development process has an associated cost, especially if money has been leveraged in the property. In practice, most of this timing risk is associated with the market, but a protracted or unsuccessful review process can also be very costly. From the County's point of view justification exits for having the review process structured to reasonably anticipate the worst case development scenarios. Time must be allowed to effectively obtain needed public and technical input. Delays are also often attributable to incomplete or poor submittals.
Goal 15.2 Ensure that applicants are responsible for a reasonable share of costs associated with processing applications and for the fiscal impacts from development while balancing the desire to limit the direct and indirect impacts of regulations on development.
Policy 15.2.1
Consider the development and adoption of a fee structure that reasonably compensates the County for the costs associated with administration of complicated development approvals such as Planned Unit Developments.
Policy 15.2.2
Periodically review and adjust subdivision exactions and related fees within the statutory limitations to ensure they are commensurate with the actual costs.
Policy 15.2.3
Reasonably limit the time required to process land use applications to that amount necessary to accommodate needed staff, agency and public review as well as any State-mandated notice requirements.
Policy 15.2.4
Attempt to reasonably limit the number and complexity of conditions attached to approval of land use applications, especially where these may result in future enforcement difficulties or high administrative costs.
Policy 15.2.5
Recognize the trade-off between the desire for higher levels of planning services and desire to limit public expenditures.
Policy 15.2.6
Fully evaluate the fiscal and property rights impacts of all proposed changes to land use regulations and fees.
ISSUE 15.3 Address Fiscal Impacts of Development
A widely held sentiment maintains that "growth should pay its own way"; however, calculating the true public costs of growth in a acceptable regulatory formula presents challenges. There are many situations where fiscal impact analysis is addressed through regulations or practice. Examples include front-end utility tap fees, subdivision exactions for on-site infrastructure, park and school lands, and per-acre drainage facility fees.
The time period used in analyses or calculations is important. New development ordinarily creates an immediate and often one-time need for facilities and services, such as road and school capacity. Conversely, the direct and indirect tax and fee revenues generated by development are collected in small increments over time. In the case of property taxes, there often is a lag period of up to a few years, during which no revenues are collected.
Components of fiscal impact analysis, including timing, location and type of development, which have a substantial impact on public infrastructure costs, are difficult to accurately model and calculate due to future uncertainties. Residential development does not directly generate the public revenues needed to defray the cost of providing it with infrastructure and services. Often residential infrastructure is paid for and maintained by the relatively higher taxes and fees generated by commercial, office and industrial businesses or other nonresidential uses. Therefore, it may be inappropriate to burden a given residential development with all of the net public costs it generates.
Analyzing and calculating off site fiscal impacts can be a complicated and an inexact process. To begin with defensible service level standards need to be established. Existing deficiencies must also be addressed because their costs can not be legitimately assessed against new development. Further complicating the process is the potential involvement of variety of different public, quasi-public and private entities. Improvements such as additional road capacity, drainage channels, schools or fire stations often need to be constructed in large expensive increments. Assessing and distributing the cost for infrastructure is difficult because development is market-driven and not always predictable.
Finally, some costs/benefits are not entirely tangible. For example, it is difficult to put an exact price tag on visual impacts, open space, air quality, a recreation center, a professional sports team or a major cultural facility.
Goal 15.3 Maintain a regulatory structure which fairly and equitably distributes the costs associated with development and which ensures that adequate public facilities and services will be available when and where they are needed.
Policy 15.3.1
Identify and consider the major off-site fiscal impacts of development proposals as a part of their evaluation and review process.
Policy 15.3.2
Consider the adoption of a more formalized fiscal impact analysis requirement provided that it is clearly defined, equitable, does not unreasonably burden the development review and approval process and is used as only one of the considerations in the land use decision process.
Policy 15.3.3
Encourage innovative approaches to the problem of financing solutions to the off-site fiscal impacts of development.
Policy 15.3.4
Support equitable approaches to the provision of public services and facilities where feasible.
Policy 15.3.5
Address existing deficiencies and community-wide facility and service needs in a manner which does not place an unreasonable financial burden on new development.
Policy 15.3.6
Recognize the community-wide responsibility for addressing the facility and service needs of existing and previously approved development in the implementation of any concurrency management system.
Policy 15.3.7
Promote the adoption and use of comprehensive, equitable and reasonably flexible concurrency management as a means of managing rather than fully controlling or stopping growth and development.
ISSUE 15.4 Continue to Refine Regulations
The El Paso County Land Development Code has undergone a fairly continuous process of revision over the past several years. Separate supporting criteria and additional ordinances have also been developed and adopted. Over time, the Code has become quite extensive and difficult to follow in places. Also, a number of areas within the regulations could benefit from additional attention. Finally, with its current regulatory structure, the County is limited in its ability to address certain uses such as public utilities.
Goal 15.4 Continue to refine the County's system of land development regulations to keep them current, clear, effective, equitable and enforceable.
Policy 15.4.1
Develop and approve limited H.B. 1041 regulations that address those public utility and related projects for which the County's current authority is limited.
Policy 15.4.2
Develop and adopt general standards for consideration of C.R.S. 30-28-110 approvals of location for public utilities.
Policy 15.4.3
Develop and adopt standards which address County-initiated rezoning.
Policy 15.4.4
Consider the impact proposed regulations will have on the ability of property owners to implement innovative and aesthetically pleasing site planning and building design techniques.
ISSUE 15.5 Maintain a User-friendly and Publicly Open Process
Participating in the land development review process can be a daunting and frustrating experience for both the applicant and concerned residents. In some cases, the period from initial submittal to final Board of County Commissioners determination can run several months even without extraordinary delays. Because the regulations can be inherently complex and subject to a variety of legal constraints, it may be difficult for participants to fully understand how and why the process has to work the way it does.
Although maintaining an open and public process is understood to be a critical component of the regulatory structure, accomplishing this charge can be a challenge in practice. Maintaining full public input requires a commitment of staff resources which is not always available. Often, it also requires a balancing of the rights of neighbors with those of the project applicant.
Goal 15.5 Ensure a public review process that provides adequate and equable opportunity for informed consideration of development proposals by all interested parties.
Policy 15.5.1
Make the Land Development Code more user friendly through a combination of reformatting, reorganization, use of tables and diagrams and computer accessibility.
Policy 15.5.2
Continue to support and facilitate public involvement in the planning and land development processes through effective and timely notice to potentially impacted property owners and representative community groups.
Policy 15.5.3
Encourage preapplication information meetings between the applicant, affected property owners and homeowners groups prior to submission to the County for large properties and/or properties in sensitive locations.
Policy 15.5.4
Use innovative communication methods, such as the Internet, to increase the public’s access to information covered in the Land Development Code, other related documents, regulations and developments.


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