HomeMy WebLinkAboutbocc.min.spec.03062000 PITKIN COUNTY COMMISSIONERS
AGENDA
MONDAY, MARCH 6, 2000
SPECIAL MEETING (Not a Public Hearing)—City Hall
1:00 PM Planning and Zoning Commissioners will attend
Agenda: Consulting Team Local Review Meeting
for Development Fees for Affordable Housing, Open Space/Agricultural Preservation
and Health&_Human Services
5:00 PM ADJOURN
APPROVED JANUARY 10,2001
MINUTES
SPECIAL MEETING
JOINT BOARD OF COUNTY COMMISSIONERS AND PLANNING AND
ZONING COMMISSION
MARCH 6,2000
CALL TO ORDER: Chairperson Harper opened this special meeting at 1:00 p.m.
COMMISSION MEMBERS PRESENT: Commissioners Shellie Roy Harper, Mick
Ireland, Leslie Lamont, Patti Clapper and Dorothea Farris
CLARION ASSOCIATES CONSULTING TEAM ON FAIR SHARE
REQUIREMENTS
The forum for this meeting was for staff discussion of policy memo with clarion
Associates Consulting Team. The items discussed were as follows:
• Affordable Housing Fair Share Requirements
• Open Space/Agricultural Preservation Fair Share Requirements
• Health and Human Services Fair Share Requirements
A copy of the notebook associated with this meeting is attached hereto and made a part of
this record as EXHIBIT "A"
ADJOURNMENT: The meeting was adjourned at 5:00 p.m.
J
pectfully su itt ette Jones
rk to the Boar of County Commissioners
C))L-
/ �-✓
Shellie Roy H r, Chairperson
Board of County Commissioners
Pcj mj\ww\g\minutes\2000\03 062001
BOARD OF COUNTY COMMISSIONERS 1 SPECIAL MEETING MARCH 6,2000
'` CONSULTING TEAM LOCAL REVIEW MEETING
MARCH 6, 2000
NOTEBOOK
Invitation to March 6, 2000 Meeting.................................................................................................1
Memo from Marcella Larsen Chilson re: Citizen Mitigation Workgroup Composition and
TentativeMeeting Schedule ..............................................................................................................2
DRAFT Policy Memorandum Development of Methodologies for Development Fees for:
Affordable housing, Open Space Preservation, and Health and Human Services...........................3
DRAFT - Bibliography......................................................................................................................4
� l
CONSULTING TEAM LOCAL REVIEW MEETING
DEVELOPMENT FEES FOR
AFFORDABLE HOUSING, OPEN SPACE/AGRICULTURAL
PRESERVATION AND HEALTH & HUMAN SERVICES
lfb March 60 20000 1 p.m. - 5 p.m,
City Council Chambers, City Hall (basement) OF
INVITEES
* = WILL ATTEND AS OF 3/2/00
Consultant Team County Staff BOCC/P&Z Mitigation \�
Work rou ���
*Don Elliott *John Ely *Mick Ireland *Gary Beach
(attorney/planner) (County Attorney) (BOCC/local (environmental
attorney) consultant)
*Matt Goebel
(attorney/planner) *Cindy Houben *Leslie Lamont *Dave Mueller
(Planning Director) (BOCC/former City (local attorney)
of Aspen planner)
*Dr. James Nicholas *Suzanne Konchan <
* �
(economist/planner) (County Manager) Sherri Sanzone Sherri Sanzone
(P&Z/local planner) (P&Z/local planner)
*Craig Richardson *Marcella Larsen
Chilson
(attorney/planner) *Peter Thomas *Alan Caniglia
(Assist County Attorney) (P&Z/local attorney) (FAB)
*Tom Oken *Peter Martin *Kent Mueller
(Admin. Services (P&Z) (F` B)
- Director and Treasurer
/Public Trustee)
*Gabe Preston *Charlie Tarver *Lester Crain
(County Planner) (P&Z `A
(Private Investor) "A-
ob *Nan Sundeen *Shelly Harper Brooke Peterson
(Human Services (BOCC) (local attorney)
Director)
*Mary Roberts
Marc Mathys
H( ousing Director)
.,,., 44 (FA B)
*Dale Will Michael Cooper
_ (Open Space Director)
._ _
PITKIN COUNTY ATTORNEYS OFFICE
530 East Main St., Suite 302
Aspen, Colorado 81611
' 1 1 ' 1 (telephone) 971 • 1 •
Me o
To: Citizen Mitigation Workgroup
From: Marcella Larsen Chilson,Assistant County Attorney
Cc: Nan Sundeen, Growth Management Project Facilitator
Mitigation Staff Workgroup
Board of County Commissioners
Planning&Zoning Commission
Clarion Associates Consulting Team
Tischler Associates Consulting Team
Date: 03/03/00
Re: Citizen Mitigation Workgroup Composition and Tentative Meeting Schedule
As you know, the Board of County Commissioners and Planning & Zoning Commission have
requested the formation of a Mitigation Workgroup to review the preparation of "fair share" requirements or
development fees for affordable housing, open space/agricultural preservation, health & human resources and
roads. The County has hired two consultants to prepare fair share requirements for each of these areas. The
two consultants are Clarion Associates from Denver and Tischler Associates from Maryland. The purpose of
the Mitigation Workgroup is to review the technical materials prepared by the consultants and make comments
to the Board of County Commissioners and Planning &Zoning Commission for their ultimate consideration and
decision making.This memo addresses the workgroup composition and a tentative future meeting schedule.
Workgroup Composition:
We have not yet finalized the members of the Mitigation Workgroup, but the following is the list of the
people who have been asked to be members of the group (information regarding each person's occupation or
status on County advisory boards is included where available):
■ Gary Beach (environmental consultant)
■ Alan Caniglia (Financial Advisory Board applicant)
■ Michael Cooper(Financial Advisory Board)(unconfirmed)
■ Lestor Crain (Private Investor)
■ Marc Mathys (Financial Advisory Board)(unconfirmed)
■ Kent Mueller(Financial Advisory Board)
■ Dave Mueller(local attorney)
■ Brooke Peterson (local attomey)(unconfirmed)
■ Sherri Sansone(P&Z/local planner)
0 Page 1
Tentative Future Schedule:
The tentative schedule of future meetings is as follows:
DATE TIME/PLACE MEETING DESCRIPTION
March 2, 5 p.m.—9 .m p . BOCC/P8Z/Growth Management Reform Taskforce(Special Meeting)
2000 City Council (FYI only,this is not a Mitigation Workgroup Meeting)
Chambers
March 6, 1 p.m.—5 p.m. Consultant Local Review Meeting With County Staff S
2000 City Council (This is mot a Mitigation Workgroup meeting, but the meeting lis a good
Chambers opportunity to meet the consultants and begin familiarizing yourself with the
issues and process of formulating"fair share"requirements.)
March 9, 5 p.m.—9 P.M. BOCC/P&Z/Growth Management Reform Taskforce
2000 Location TBD (FYI only,this is not a Mitigation Workgroup Meeting)
March 14, 2 p.m.—5 p.m.— First Mitigation Workgroup Meeting
2000 Location TBD (Topic: discussion of purpose of workgroup and schedule for review of
consultants'work product)
... ... ........... _
March 0, 5 p.m.—9 p.m. BOCC%P&z/Growth Management Reform Taskforce
... ............ .. ....._..................._
2000 Location TBD (FYI only,this is not a Mitigation Workgroup Meeting)
March 28, 2 p.m.—5 p.m. Second Mitigation Workgroup Meeting
2000 Location TBD (Topic: review of affordable housing development fee study and draft
legislation;review of road development fee study and draft legislation)
April 4,2000 2 p.m.—5 p.m. Third Mitigation Workgroup Meeting
Location TBD (Topic: continued review of affordable housing development fee study and
draft legislation; continued review of road development fee study and draft
legislation)
.........__....
Week ofA ri! TBD
P BOCC/P&z/Growth Management Reform Taskforce&Mitigation Workgroup
E ct D First Reading,Affordable Housing Development Fee
(Enact Date
TBD)
Week ofApri! TBD BOCC/P&Z/Growth Management Reform Taskforce&Mitigation Workgroup
17,2000 First Reading, Road Development Fee
(Exact Date
TBD)
Week ofApril TBD BOCC/P&ZlGrowth Management Reform Task force&Mitigation Workgroip�24,2000 Second Reading,Affordable Housing Development Fee
(Exact Date
TBD)
Week of May TBD BOCC/P&Z/Growth Management Reform Taskforce&Mitigation Workgroup
1,2000 Second Reading, Road Development Fee
(Exact Date
TBD)
Week of May TBD BOCC/P&Z/Growth Management Reform Taskforce&Mitigation Workgroup
8,2000 Additional Hearings for Affordable Housing Development Fee and Road
r Development Fee
0 Page 2
� 3
DEVELOPMENT OF METHODOLOGIES
FOR DEVELOPMENT FEES FOR:
AFFORDABLE HOUSING,
OPEN SPACE PRESERVATION, AND
HEALTH AND HUMAN SERVICES
POLICY MEMORANDUM
DRAFT
SUBMITTED BY
CLARION ASSOCIATES OF COLORADO, LLC
1700 BROADWAY, SUITE 400
DENVER, COLORADO 80290
CLARIONOCLARIONASSOCIATES.COM
IN ASSOCIATION WITH
CRAIG RICHARDSON
DR. JAMES C. NICHOLAS
FEBRUARY 2000
(DRAFT FOR STAFF DISCUSSION AND
'^ REVIEW AT MARCH 6, 2000 STAFF MEETING)
000ft-1 CONTENTS
I. INTRODUCTION AND EXECUTIVE SUMMARY...........................................................1
A. Project Overview.......................................................................................................1
B. Recommendations....................................................................................................1
1) Affordable Housin....................................................................
2) Parks/Open Space/Agriculttual Lands......................................................................2
Health and Human Services......................................................................................3
II. AFFORDABLE HOUSING .................................................................................................5
A. Overview of Existing Environment...........................................................................5
Affordable Housing Development Exactions 5
Growth Management Quota System CGMQS). ..........................................................7
Affordable Housing Zone Districts ..........................................................................8
4� Consensus on Potential Affordable Housing Sites
Resident Occupied Home Program...........................................................................
Public Sector Production Pro gram...........................................................................10
Aspen/Pitkin County Housing Office......................................................................10
Aspen/Pitkin Counry Affordable Housing Guidelines..............................................10
B. Legal Parameters ....................................................................................................10
1) Authodty...............................................................................................................11
Other State Law Requirements................................................................................13
31 Federal Constitutional Requirements
jj Conclusion........................................................................ ..........18
...........................
C. Existing Data..........................................................................................................18
D. Pro am Options and Recommendation.................................................................19
E. Methods..................................................................................................................20
III. PARKS/OPEN SPACE/AGRICULTURAL LANDS..........................................................22
A. Overview of Existing Environment.........................................................................22
j� Parks/Recreation/Open Space Development Exactions...........................................22
2� Trail Development Exactions..................................................................................22
31 Pitkin CQAM Open Space and Trails Program.......................
jjOpen Space -Definition ........................................................................................24
Agricultural Lands -Definition...............................................................................25
B. Legal Parameters ....................................................................................................26
Authorirv...............................................................................................................26
21 Other State Law Considerations:The Rational Nexus Requirement...........................27
31 Federal Constitutional Requirements.......................................................................28
Conclusion.............................................................................................................29
C. Existing Data..........................................................................................................29
D. Level of Service Standards.......................................................................................30
E. Program Options.....................................................................................................30
F. Methods..................................................................................................................32
W. HEALTH AND HUMAN SERVICES ...............................................................................33
A. Overview of Existing Environment.........................................................................33
!� Overview...............................................................................................................33
'.. �j Capital Facilities and Costs......................................................................................33
31 Operating and Maintenance Expenses.....................................................................34
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CONTENTS
lops- 4) Revenues ...............................................................................................................34
51 Regulatory Program................................................................................................34
B. Legal Parameters ....................................................................................................35
j) Authoritv...............................................................................................................35
2) Other State Law Requirements................................................................................35
3) Federal Constitutional Requirements.......................................................................36
4) Conclusion.............................................................................................................37
C. Data........................................................................................................................37
D. Program Options and Recommendation.................................................................38
E. Method...................................................................................................................39
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I. INTRODUCTION AND EXECUTIVE SUMMARY
A. Project Overview
The overriding purpose of this project is the County's development/revision of a system of
development exactions or other forms of mitigation requirements for:
■ Affordable housing;
■ Parks,open space and agricultural preservation;and
■ Health and human service facilities and services.
Because there are legal,policy,data, and feasibility issues involved in the design of each program
component,the project is divided into two major phases. The first phase involves preparation of this
document,the Policy Memorandum It outlines for each of the three components of the project:
(1) The Existing Environment (Any on-going County exaction programs and other relevant
background issues);
(2) Legal Parameters (The legal parameters controlling the design of the program);
(3) Data (The data available to develop or revise the program and any potential data
deficiencies);
(4) Options and Recommendation(The options available to the County for the design of a
program-- based on the existing environment,legal parameters and available data-- and a
specific recommendation);and
(5) Methodological Approach (A proposed methodological approach for the specific
recommendation.)
The general recommendations for each component are summarized in the following sub-section,
Rexnrnmdxzons.The following three sections address the principle types of fees to be developed:Affordable
Housing(Section II),Parks/Open Space/Agricultural Lands (Section III), and Health and Human Services
(Section IV). The Policy Memorandum will be reviewed and a proposed framework for each component of
the program will be agreed upon between the County and the Consultants.
Phase Two will then be initiated. It involves preparation of two types of documents: (1) the
Support Studies for each exaction program, and (2) the Implementing Legislation. The approach used in
developing the Support Studies and Implementing Legislation will be based on the framework agreed to
for each component of the program after review of the Policy Memorandum.
B. Recommendations
I) Affordable Housing
Authority for the County to impose affordable housing requirements and in-lieu fee provisions
for the legitimate governmental purpose of ensuring and maintaining an adequate supply of affordable
housing that is phased to match the requirements created by other forms of development exists in the
Local Government Land Use Control Enabling Act (CRS % 29-20-101 -- the so-called "1034 Powers").
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Part I /Introduction and Executive Summary
Recommendations
000- Federal law requires that the program be designed so there is an essential nexus between the legitimate
governmental purpose of providing affordable housing and the impact that new development has on the
community's need for affordable housing. Even though it is not required by law, the program should
also be designed to comply with rough proportionality principles.
Based on the analysis .undertaken-in .this.Policy Memorandum, it is recommended that the
general framework for the update of the development exactions for affordable housing should continue
to be lodged within the Development Exactions section of the County's Code. Sec. 3-130-020,PCLUC.
If the County desires to include development that does not require land use approvals (e.g., the
development of most approved subdivisions and remodels/replacement units), the County may want to
consider a hybrid system that includes a fee requirement in the Uniform Building Code along with the
Land Use Code requirements. Within this context,the update will focus on several specific components
of the exaction requirement. They include: a demonstration of need for affordable housing, the
mclusionary standards,the fee-in-lieu amount,and exemptions.
This analysis will be synthesized in an updated study supporting the program. The study, should
demonstrate a real need in the community to provide affordable housing, and conduct an analysis that
determines a fair allocation of costs on and amongst new development to provide the needed affordable
housing levels.The study should be incorporated into any revisions to the regulation adopted.
Finally, the affordable housing requirement should exact the affordable housing needed as a
result of new development or re-development. Strict affordability (price) controls should be placed on
any units that are rented or sold to ensure they remain affordable. If fees are allowed to be paid in-lieu
of construction, provisions should be included to ensure the fees are spent within a reasonable time to
provide for affordable housing, so that the other forms of development that create the need for
affordable housing will actually benefit from an increase in the affordable housing supply. Finally, the
regulations should include a "special study" provision that allows a developer to show that providing the
required levels of affordable housing would deny them all reasonable economic use of the property, and
require developers show the amount of affordable housing that could be accommodated while still
allowing for some economic return. The "special study" provision should also require the property
owner to demonstrate that there is no other economically viable use under the applicable zone district.
Finally, the County also may want to consider allowing for an "individualized determination" of the
affordable housing requirement which would allow individual property owners to make a case that the
formula ultimately adopted does not accurately reflect the employment generated (and corresponding
affordable housing need) for their individual project.
2) Parks/Open Space/Agricultural Lands
A parks/open space/agricultural lands exaction is authorized by CRS §30-28-133(4)(a), and
should be imposed on new residential development as part of the subdivision review process. Colorado
case law probably requires that the amount of any such infrastructure exaction have a rational nexus to
the impacts of the proposed development. Because CRS 530-28-133(4)(a) specifically authorizes a fee-in-
lieu of land exactions as part of the subdivision process, the County should base its parks/open
space/agricultural lands exaction system on this statute. The statute is a land dedication/in-lieu fee
provision that requires the amount of the fee-in-lieu not exceed the fair market value of the land that
could have been required to be dedicated.
Prior to revision of the County's existing requirements, it is important that an updated study
supporting the program be developed. The study supporting the exaction/fee-in-lieu system should
define parks/open space/agricultural lands, establish a Level of Service ("LOS"), document a link
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Part I /Introduction and Executive Summary
Recommendations
00� between general demand from new growth and development and need, and proportionately allocate
those costs amongst new growth and development. This analysis should be incorporated into any
regulation adopted. The regulation should also ensure that those dedicating the land or paying the fee
will receive sufficient benefit for the land dedicated or fees paid,within a reasonable period of time, and
that any in-lieu-fee collected cannot be greater than the fair market value of any land that can be
reasonably required to be dedicated from the subdivision.
3) Health and Human SerUices
Authority for impact fees in general can be found in the Local Government Land Use Control
Enabling Act CRS % 29-20-101 (the so-called "1034 Powers") if the purpose of those fees is to ensure
the phasing of new development and required public facilities. Any health and human services exaction
adopted by the County should be based on the authority contained in the 1034 powers to regulate land
based on its impact on the community,or to plan for and regulate the phased development of land. The
exaction should be imposed on new residential and nonresidential development. It appears that a health
and human services development exaction program can be designed to comply with the rational nexus
standard, as long as the data requested from the County can be provided.
Based on the analysis undertaken in this Policy Memorandum, the County has three program
options for development of a health and human services development exaction program:
1) Prepare a health and human services development exaction program for capital infrastructure;
.�. 2) Prepare a health and human services development exaction program for capital and operating
expenses; or
3) Prepare a Public Buildings development exaction program that exacts fees against new growth
and development for capital for public administration buildings, health and human services
infrastructure,law enforcement capital facilities and fire/EMS facilities.
Each alternative has different legal and policy implications.
There is clear legal precedent for the use of development exactions to provide capital
infrastructure consistent with rational nexus principles. Consequently,it appears the County is on sound
legal footing if it develops a health and human services development exaction program for capital
infrastructure. However, as a matter of policy, because of the limited capital infrastructure needs the
County has to provide health and human services,the fee amount would probably be quite low.
There is not as definitive legal support for a health and human services exaction program based
on capital and operating expenses,though at least one case supports the adoption of such a program for
transit facilities and services. However, as a matter of policy, the fee amounts generated from such a
program would be more than the first option since the majority of the costs for health and human
services are for operating expenses.
As with the first option, the County is on sound legal footing if it develops a Public Buildings
exaction program for public administration, health and human services, law enforcement and fire/EMS
capital facilities. Even though an analysis of these other capital facility systems (public administration,
^ health and human services, law enforcement and fire/ems) is not undertaken in this Policy
Memorandum,it is fairly clear that this program would result in higher fee levels than the first option.
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Part I /Introduction and Executive Summary
Recommendations
It is recommended that the County consider adopting either the second or third option.
Finally,it is suggested that if the County decides to move forward with the adoption of a health
and human services exaction program,a study supporting the program be developed by the County. The
study supporting the exaction system should define health and human service facilities, establish a Level
of Service ("LOS"), document a link between general demand from new growth and development and
need, and proportionately allocate those costs amongst new growth and development. This analysis
should be incorporated into any regulation adopted. The regulation should also ensure that those paying
the fee will receive sufficient benefit for the fees paid in the form of capital health and human services,
within a reasonable period of time.
,r.
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,.., II. AFFORDABLE HOUSING
A. Overview of Existing Environment
There is little debate that there is a housing affordability problem in Pitkin County and Aspen. In
1994, the median price of a home in Aspen was more than $1,000,000. The median priced single-family
unit sold in Aspen/Snowmass in 1997 was $1,846,217; the median priced single family unit sold in
Aspen that same year was $2,257,544. The median priced condominium unit sold in Aspen/Snowmass
in 1997 was $524,957; the median priced condominium unit sold in Aspen that same year was $397,808.
(Aspen Appraisal Group, Ltd, September 1, 1997). Median family income in 1998 was $52,976. Median
household income that same year was $39,991 (U.S. Department of Commerce, Bureau of Economic
Analysis, as reported by the Colorado Department of Local Affairs,web site www.dig.oem2.state.co.us).
In response to this problem, both the County and City of Aspen have developed an affordable
housing programs which, in the 1970s when it was originally conceived,was one of the most aggressive
programs in the country.The general goals of this program are to ensure that:
■ Growth pays its way;
■ The demand for new housing opportunities are balanced with housing production;
■ Existing homes used by local residents are not demolished and converted to non-residential
or second home use without providing affordable units;
■ Affordable housing is introduced or re-introduced into the many different neighborhoods in
the community through a variety of housing types; and
■ Incentives are provided to the private sector to build affordable housing (Margerum and
Tolen, "Aspen's affordable housing program helps create community." Colorado
Municipalities (November/December, 1994))
The general housing goal of the community set out in the 2000 Aspen Area Canmuruty Plan Update
modified the original AACP's goal of housing 60 percent of the Aspen area work force lives up valley of
the Aspen Village Mobile Home Park. The AACP now has the goal of providing 800 to 1300 additional
affordable housing units within the Aspen Community Growth Boundary.
In an effort to achieve these goals, the County and City have initiated regulatory,voluntary, and
production programs to ensure the availability of affordable housing for the community's work force.
The problem is seen as inter-local in nature; consequently,the County and Town have coordinated their
efforts and established the Aspen/Pitkin County Housing Office, which establishes affordable housing
guidelines, manages the public production of affordable units and oversees the management of the
community's affordable housing units. There are seven specific initiatives in which the County is
involved that are relevant to the update of the development exactions for affordable housing.
1) Affordable Housing Development Exactions
The minimum affordable housing requirements with which new subdivisions containing
residential, commercial and tourist development must comply in the County are the development
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Part II /Affordable Housing
Overview of Existing Environment
exactions on new residential, commercial and tourist development. Sec. 3-130. 20 PCLUC.' These
standards are based on the technical data, findings, and conclusions in Resolution 74-87, the 1977
Aspen/Pitkin County Cyrvtexh Manag mau Policy Plan and the Aspen Area Ca mmonty Plan Housing
Elemarrt/Affomlable Housing Prabation Plan, as amended. They are imposed at time of subdivision, and
establish the following general requirements:
■ Residential developments are to provide affordable housing for 33 percent of the residents
in a development;
■ Commercial developments are to provide affordable housing for 100 percent of the
employees generated by the development; and
■ Tourist developments are to provide affordable housing for 100 percent of the employees
generated by the development.
The affordable housing exactions are not imposed on any development other than new development
that occurs through the subdivision of land. For example, new units on lots created prior to June 12,
1978 (the date growth management was enacted) and remodels/replacement units do not pay any
affordable housing mitigation.
The regulations assume that each tourist accommodation unit generates 0.2 to 0.4 full time
equivalent employees, and the different types of commercial development generates the following
number of employees as depicted in the chart below. Applicants, however, can conduct their own
independent calculations of demand. To be applied to the development, however, the independent
calculation must be reviewed and approved by the Board of County Commissioners. Sec. 3-130-020 D.
PCLUC.
LAND USES PER SQ. YT.
Professional Office 3.9
Retail/Wholesale Service 3.5
Warehouse 0.4
Manufacturing 1.5-4.0
Restaurant/Bar 5.0-10.0
Utilities/Quasi-Governmental 1.5-2.5
Other Uses Based upon independent calculation
The regulation provides different options by which landowners/developers may satisfy the
affordable housing standards. They, however, must ultimately be approved or modified by the Board of
County Commissioners, subject to certain conditions. Sec. 3-130-020 F. PCLUC. The options available
to landowners/developers are:
1 The exemptions set out in the regulations are for(1)a single family dwelling unit or duplex on lots approved for a 50
percent reduction lot split,(2)a single family dwelling unit on a lot larger than 500 acres,and(3)subdivision exemptions approved
pursuant to Secs.3-190.30 and 3-190.80 of the Land Use Code.Sec.3-130-020,PCLUC.According to other documents received
from the County,exemptions granted from growth management have also been exempted from affordable housing exactions. Some
of these exemptions include: (1)residential units on lots created prior to adoption of GMQS on June 12,1978;(2)housing in the
AH zone district;(3)all category and RO deed restricted housing;(4)all remodels and reconstruction;(5)residential units on TDR
receiving sites;(6)redevelopment of commercial properties where square footage is not enlarged;and(7)commercial development
that does not require physical building square footage(Memorandum from Houben et.al to Board of County Commissioners,July 6,
1999).
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Part II /Affordable Housing
Overview of Existing Environment
■ Construction of new dwelling units that are deed restricted;
■ Conversion of existing free market units to deed restricted units;
■ Conveyance to the County of free-market vacant unplatted property or platted lots whose
market value is equal to or greater than the equivalent affordable housing dedication fee; or
■ Payment of a fee-in-lieu based on the following payment per employee and occupancy
standards per dwelling unit:
Category 1 (Low) $147,000
Gross Household Income of $25,500-$48,000
Category 2(Moderate) $134,000
Gross Household Income of$40,500-$63,000
Category 3 (Moderate) $122,000
Gross Household Income of$65,750-$88,250
Category 4(Middle) $101,000
Gross Household Income of$106,000-$128,500
Source:Aspen/Pitkin County Affordable Housing Guidelines,p.23
Dormitory/Lodge 1.0 employee/150s .ft.
Studio 1.25 em 1 ees
One Bedroom 1.75 em to ees
Two Bedroom 2.25 employees
Three bedroom's 3.0 employees
'For each bedroom in excess of three,the occupancy standard increases by 0.5 employees.
Source:As en/Pitkin County Affordable Housing Guidelines,p.23
The in-lieu fee formula assumes that for every 3,000 square feet of new single family or duplex
floor area,the public will be required to provide housing for one moderate income employee. Currently
that amount is $134,000 = $122,000 /2/ 3,000 + $42.67 per square foot of new structure.
From 1990 through July 6, 1999, a total of$2,751,675 was collected by the County for cash-in-
lieu housing payments. No data has been provided about the value of any lots contributed or the total
residential units built pursuant to the requirement, though the Existing Conditions Report prepared for
the 2000 AACP Update provides some figures on mitigation units.
2) Growth Management Quota System (GMQS)
In addition to the affordable housing exaction standards,many developments are also subject to
Growth Management Quota System (GMQS) review. See Secs. 3-140, 3-160 PCLUC. Under the
GMQS, developers compete for an annual allotment of new residential units, commercial square footage
and tourist units.
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The County's GMQS is divided into the non-metro area and the Aspen metro area allotments.
Allotments are generally provided for residential, commercial and tourist accommodations on an annual
basis (even though there may be multi-year allotments). The annual allotment established by the GMQS
is set down below:
Non- Metro Area Aspen Metro Area
Residential 24 units 4 free market units,8 free market AH
associated units, 8 resident occupied
units,43 affordable housing unitsz
Commercial 43 ern to ent generation units
Tourist 20 units 1 11 units
All applications subject to GMQS must comply with the minimum development exaction
standards for affordable housing. The competition for residential and commercial allotments gives extra
credit in the competition for proposing affordable housing beyond the minimum requirements imposed
by the development exactions.The competition for tourist development does not.
No data has been provided concerning the number of affordable housing units provided
through the GMQS, though analysis conducted by the Community Development Department suggests
that most development over the past 15 years has occurred on exempt properties and redevelopment of
properties. (Houben et. al.Memorandum to Board of County Commissioners,July 6, 1999.) In an effort
to further encourage the voluntary development of affordable housing units in the County,the County's
GMQS exempts the following affordable units from the GMQS, subject to specific limitations:
■ Dwelling units constructed in the Affordable Housing (AH) zone districts;
■ Affordable housing units constructed outside of the AH zone districts;
■ Employee dwelling units;
■ Caretaker dwelling units.
Sec. 3-150,PCLUC.
3) Affordable Housing Zone Districts
The County also has four affordable housing zone districts: the Affordable Housing
AH/Overlay Zone PUD Zone District;the AH zone district;the AH-2/PUD zone district; and the AH-
3/PUD zone district. The AH/Overlay is established to provide a mix of land uses that encourage
interaction between tourists, seasonal residents and permanent residents consistent with the goals of the
Aspen Area Cara w ity Plan. Lands in the AH/Overlay PUD Zone District should be strategically
organized in recognized activity centers, on transit and bicycle routes and located in the Aspen Metro
area. The district designation is subject to the PUD review criteria.Uses in the district are determined by
the underlying zone districts. Seventy (70) percent of the residential units in the district must consist of
affordable housing. In addition, the number of persons residing in the restricted affordable units must
comprise 60 percent of the total residential development population. Projects must be comprised of at
z In addition,the County's GMQS reserved development allotments of 6 tourist accommodation units annually and 2 free
market residential units annually.These allotments are to be reserved for development in the GMQS competition.If they remain
unused,they may then be used by exempt developments.
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least 60 percent category 1, 2, 3 and 4 affordable housing units and may be comprised of up to 40
percent Resident Occupied units. Affordable housing is to be provided for 60 percent of the employees
of commercial and tourist developments done in association with an AH Overlay/PUD project.
The AH zone district is intended to provide land outside of the Metro Area for the production
of income and price restricted housing of Category 1, 2, 3 and/or 4 deed restricted units. The AH-
2/PUD zone is intended to provide for the use of land for the production of Category 1, 2, 3 and 4
affordable housing and resident occupied units and lots within the Metro Area. The AH-3/PUD zone
district is also to provide for Category 1,2, 3 and 4 affordable housing and resident occupied units within
the Extended Metro Area.
4) Consensus on Potential Affordable Housing Sites
The 2000 Aspen Area Carmunrty Plan Update(Public Hearing Draft,January 2000,adopted by the
Pitkin County Planning&Zoning Commission)identifies potential publicly owned sites that would be good
locations for affordable housing as follows: 7th and Main;Stillwater;Truscott expansion;National Forest
Service Site at Th and Hallam;Burlingame Parcel D; Aspen Mass;Burlingame Village;and Bass Park.Other
potential sites were examined and are identified below(not in priority),with estimates of units based on the
size of the different parcels.
PRIORITY SITES TN pc(if Pro'cct Low Unit Lstimate lli,,h Unit Estimate I
AABC Infill Partnership 20 50
Core and in-town Infill Partnership 45 100
MAA Seasonal Housing Partnership 100 100
in progress)
Private Property Private 20 40
7th and Hopkins)
Moore Property Private 0 30
Buttermilk Base Housing Private Mitigation 0 88
7th and Main Streets Public 9 13
Stillwater-Lot 1 Public 12 15
Truscott Expansion(new Public 100 150
units
US Forest Service Site Public 50 120
North 40 in progress) Private 72 72
Hines/Highlands Private Mitigation 112 112
in progress)
Moore PUD Private Mitigation 31 31
in progress)
Aspen Country Inn Public 40 40
(Completed)
Synder (completed) Public 15 15
Subtotal 626 976
S) Resident Occupied Home Program
As is briefly mentioned in the discussion on the AH zone districts, the County also has a
program for Resident Occupied units. It primarily serves local professionals. A Resident Occupied unit
must be sold to an employee resident,but is not subject to as stringent price controls as affordable units.
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The owner's appreciation in the unit is also controlled to avoid a windfall to the resident employee
owner,and to maintain this medium level of affordable housing in the community.
6) Public Sector Production Program
In the late 1980s, the County and City, through the Aspen/Pitkin Housing Office, initiated a
program to build new affordable housing units.This effort is supported through a real estate transfer tax
and 0.45 of a penny sales tax that have been approved by the Town and allocated to the Housing Office
for the construction of affordable housing. Additional funds for program operation are provided by the
County.
7) Aspen/Pitkin County Housing Office
As is mentioned earlier, the County's and City's affordable housing programs are administered
by the Aspen/Pitkin County Housing Office. It is a quasi-independent entity whose funding comes
from the City and County, rental and sales fees, and special project and operational funding from the
County's general fund. The Housing Office has a Board that is appointed by the Board of County
Commissioners and City Council. The Office, through its Board, manages both the City's and County's
affordable housing programs. The Board recommends guidelines for qualifications for participants in the
community's affordable housing programs, sets the sale and rental price of units, and establishes policies
to guide the program (Aspen/Pitkin Coamty Affordable Hoa iT Guiddb7a). It manages some rental projects,
and oversees the public sector production program.
8) Aspen/Pitkin County Affordable Housing Guidelines
Finally, and important to the update of the County's development exaction program for
affordable housing is the fact that the Aspen/Pitkin County Affuniable Housing Guideline do not distinguish
between the County or City in determining eligibility to participate in the affordable housing program.
To qualify and be eligible to rent or purchase an affordable housing unit, a person must:
Be a full-time employee working in Pitkin County, a retired person who has been a full-time
employee in Pitkin County a minimum of four years immediately prior to his or her
retirement....,or a disabled person residing in Pitkin County who has been a full-time employee
in Pitkin County a minimum of two years immediately prior to the disability...; or the spouse of
any such employee, retired person, or disabled person or a dependent thereof living with that
qualified employee,retied person or disabled person.
Part H. Section 1.A.
B. Legal Parameters
Designing a mandatory affordable housing program to meet legal tests is complex because such
a program may be viewed in more than one way. Fair share requirements may be viewed as "traditional
land-use" regulations or as price controls. They may also be viewed as exactions, in that they require the
landowner/developer to provide a "public good" and may allow the developer to pay fees to avoid
specific restrictions. The view taken will affect how the courts examine the issues of authority to adopt
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10,01- the regulation, the due process and equal protection tests applied, and the way in which takings claims
are evaluated.
When affordable housing regulations are challenged, they are usually attacked on several bases.
The first challenge is usually based on whether the local government has authority to adopt the
requirements under Colorado law. The other general challenges are based on the substantive due
process, equal protection,and takings clauses of the constitution.
1) Authority
Authority for the imposition of an inclusionary affordable housing requirement and in-lieu fee
provisions for the legitimate governmental purpose of ensuring and maintaining an adequate supply of
affordable housing in the County is found in the Local Government Land Use Control Enabling Act,
beginning at CRS 29-20-101. The Act reads in relevant part as follows:
29-20-104. Powers of local governments. (1) Without limiting or superseding any power or
authority presently exercised or previously granted, each local government within
its respective jurisdiction has the authority to plan for and regulate the use of land
by:. . .
(f) Providing for phased development of services and facilities;
(g) Regulating the use of land on the basis of the impact thereof on the community or
surrounding areas;and
(h) Otherwise planning for and regulating the use of land so as to provide planned and
orderly use of land and protection of the environment in a manner consistent with
constitutional rights.
29-20-107. Compliance with other requirements. Except as provided in section 29-20-105
(2)[intergovernmental agreements], where other procedural or substantive
requirements for the planning for or regulation of the use of land are provided by
law,such requirements shall control.
The authorizing language most relevant to affordable housing regulations is CRS §29-20-104 (g),
which authorizes local governments to regulate the use of land based on its impact on the community
and surrounding areas. This is so because at the heart of Pitkin County's affordable housing
requirements is the legitimate governmental objective of maintaining community character by ensuring
that housing remains affordable to the local work force. Assurance that the local work force can live in
the County is important to community character because its ensures the local work force is part of the
local social, intellectual and political fabric — by sending their children to school in the community,
worshipping in the community, and expressing their ideas in local civic organizations and at the ballot
box. In addition, there is good evidence that new "free market" dwelling units generally require the
services of numerous local businesses to maintain, repair, service, and manage the property, so that the
phasing of free market development with housing for support services is important.
While the powers granted by the Act, known as "1034 Powers," are often cited as authority for
the adoption of land use regulations, their use has sometimes been challenged on the basis that "other
procedural or substantive requirements for the planning for or regulation of the use of land are provided
by law," and that those procedures or standards should control. Five Colorado court decisions have
generally demonstrated that the use of 1034 Powers will be upheld when there is no Colorado statutory
scheme to the contrary (or arguably to the contrary), and will be overturned when plaintiffs can show
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,...� that a conflicting scheme is in place. Importantly,two of the five cases involved Pitkin County. The five
cases are summarized below:
(a) Use of 1034 Puuxn Upheld
Wdkiwon a Aikin County, 872 P.2d 1269 (Colo.App. 1993). 1034 Powers upheld as authority to impose lot merger
provisions in subdivision regulations,and to impose Growth Management Quota System.
LarrmerCamryv.Comer,927 P.2d 1339(Colo. 1996). 1034 Powers cited as additional authority to amend subdivision
regulations to include adopted master plan provisions,as long as latter are reasonably specific.
(b) Use of 1034 Pbum Oterumml
PO=b-C Inc V. Pitkin Ca&q Corry ,m'n, 642 P.2d 915 (Colo. 1982). 1034 Powers cannot be used to authorize
subdivision regulations for tracts of 35 acres or larger in light of CRS 30-28-110 restrictions on such powers.
Obrme v Douglas C.ovq C,amrm'n, 764 P.2d 397 (Colo. App. 1989). 1034 Power cannot be used to authorize local
government controls on oil and gas mining operations in areas where State Oil and Gas Commission is authorized
to regulate.
Douglas C vq v.Bavzbt*,929 P.2d 691 (Colo. 1996). 1034 Powers cannot be used to authorize county imposition
of school impact fees when CRS 30-28-133(4)(a)provides an alternative system for school land dedications.
On the issue of County authority to adopt affordable housing requirements, the two most
important decisions are the 1Wdkins and Bainbridge decisions. The WAm' sonz decision is important
because it considered a challenge to Pitkin County's Growth Management Quota System (GMQS) — for
which there is no explicit authority in Colorado county planning, zoning, or subdivision statutes. The
relevant portion of the [Wilkinson decision, at 872 P.2d 1277, states:
The GMQS provided for in the PCLUC[Piddn County Land Use Code]establishes an annual quota
system for new building permits based on a formula against which each development application is
tested and scored. Applications are granted on the basis of their score,the highest granted first, and
then the rest granted in descending order of score until the annual growth management quota is used.
It is, as the trial court observed, an elaborate system for phasing development. The GMQS is also
authorized by CRS 29-20-104(1), which provides for the regulation of population density, phased
development of services and facilities, and land use regulation based on the impact upon the
community or surrounding areas.
Clearly, the Court of Appeals in 1Willi;wn was not troubled by the fact that the GMQS was a
unique local approach to land use regulation not anticipated in traditional sources of county authority.
The key to their decision was that the County's actions fit within one of the enumerated sections of the
1034 Powers statute, and that no state system to the contrary was cited by the plaintiff.
The Bainbridge case, 929 P.2d 691, is important to the issue of authority because it relied heavily
on the existence of a pre-existing statute addressing school lands and facilities to reach its conclusion
that 1034 Powers were not applicable.The relevant portion of the Bainbridge decision reads as follows:
The Land Use Act was enacted by the General Assembly upon recognition that rapid growth and
uncontrolled development may destroy Colorado's greatest resource of natural scenic and recreational
wealth [citation omitted]. In cases addressing the Land Use Act, the courts have dealt with
government balancing of human needs with activities impacting the environment, such as mining, oil
and gas operations,and the construction of municipal water projects.[citations omitted]. In contrast,
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school impact fees are a revenue raising measure for schools and have little to do with protecting
natural resources and striking the appropriate balance between natural resource protection and human
needs. In P&v ,Inc u Baard of Ca mty Cara>osror m[citation omitted]we held that section 29-20-
107. . .of the Land Use Act specifically provides that where other procedural or substantive land use
requirements apply they control over the broadly stated powers of the Land Use Act.
With respect to affordable housing, there are no state statutes addressing the provision of
affordable housing similar to the subdivision statutes cited in Ba»abridge. Consequently, the County has
1034 Powers to adopt affordable housing regulations for the purpose of regulating "... the use of land
on the basis of the impact thereof on the community or surrounding areas... ." CRS§29-20-104 (g).
2) Other State Law Requirements
In 1999, the Colorado General Assembly attempted to codify some of the state's nexus
requirements in CRS §29-20-203. That statute does not impose new requirements on legislatively
formulated (non-discretionary)land exactions or fees-in-lieu. The relevant language reads:
(1) In imposing conditions upon the granting of land-use approvals, no local government shall
require an owner of private property to dedicate real property to the public,or pay money to
a public entity in an amount that is determined on an individual and discretionary basis,
unless there is an essential nexus between the dedication or payment and a legitimate local
government interest, and the dedication or payment is roughly proportional both in nature
and extent to the proposed use or development of such property. This section shall not
apply to any legislatively formulated assessment,fee, or charge that is imposed on a
broad class of property owners by a local government.
(2) No local government shall impose any discretionary condition upon a land-use approval
unless the condition is based upon duly adopted standards that are sufficiently specific to
ensure that the condition is imposed in a rational and consistent manner. [Emphasis added]
If a land exaction and/or fee-in-lieu system are crafted as "legislatively formulated assessment[s],
fee[s], or charge[s] imposed on a broad category of property owners" then the "roughly proportional"
standard of CRS §29-20-203(1) does not apply. Similarly, if they are not discretionary - i.e. they are
required to be imposed pursuant to a pre-established formula - then subsection (2) does not apply.
Because the existing and proposed affordable housing exaction program is and will be "legislatively
formulated" and"non-discretionary,"the requirements of CRS 529-20-203 will not apply.
3) Federal Constitutional Requirements
(a) Substarttzce Due A-r s
Property owners who demonstrate a protected property interest (which is not synonymous with
property ownership) are protected under the fifth and fourteenth amendments of the United States
Constitution from land use regulations and regulatory fees that violate substantive due process.' Viola-
tions of substantive due process are judged based on a deferential standard: whether the regulation is
reasonably related to a legitimate government interest. Pmc sion Bo,*Guaranty Corp.a R.A. Gray and Co.,
467 U.S. 717, 729 (1984);Duke Pourr Ca v. QniiYw Enzbumngrd Study Gmup,Inc.,438 U.S. 59, 38 (1978);
Village of Euclid v.AmblerReaky Co.,272 U.S. 365 (1926).
The fifth amendment provides,in part,that:"[n]o person shall be...deprived of life,liberty,or property,without due
process of law." U.S.Const.Amend V. The fourteenth amendment provides,in part,that:"[n]o state shall... deprive any person of
life,liberty,or Property,without due process of law...." U.S.Cow.Amend)UV.
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Given the courts' recognition that actions preventing unreasonable increases in housing prices
are a legitimate governmental interest, and the long time precedent controlling the review of substantive
due process challenges, affordable housing requirements should survive substantive due process
challenges if they are rationally related to the legitimate governmental interest of ensuring the provision
of affordable housing in a community.
In order to establish this rational relationship, support studies for the program should show a
need for affordable housing in the community that is not being addressed. The affordable housing
requirement should also require the provision of affordable housing units in amounts no greater than
needs.
(b) Equal PmWaiar
Equal protection challenges are based on the fourteenth amendment,which provides in part that
"[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws" (U.S.
Const. Amend XM. The standards and remedies for equal protection cases involving land use
regulations is that if the regulation involves a fundamental right or suspect class,the regulation is subject
to strict scrutiny. However, if the claim is that the regulation treats the plaintiff different from someone
else and neither a suspect class nor a fundamental right is involved,the regulation must only be rationally
related to a legitimate government purpose. City of C wire a C"ume Living GmUr, 473 U.S. 432 (1985);
Eide v. Sarasota Cavzty, 908 F.2d 716 (l lth Cir. 1990); Ck#on Productim Cb?p.v. Petera, 70 F.3d 1566, 1580-
82 (10th Cir. 1996); See also, Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir. 1990) (citing Heni?gton v.
Sonam Cotmty, 834 F.2d 1488 (9th Cir. 1987), cert. denied, 489 U.S. 1090 (1989);Arcma=v. Tmm, 671
r� F. 2d 128, 136 (5th Cir. 1982).
In Village of Belle Terre v. Boraas,416 U.S. 1 (1974),the United States Supreme Court identified the
right to vote,the right of free association, of access to courts, and to privacy as examples of fundamental
rights. In City of Cleburne v. Clime Living Canter,473 U.S. 432 (1985), the United States Supreme Court
noted the types of classes which would be found suspect — race, alienage, and national origin — and
noted that gender is a "semi-suspect" classification (416 at 440). Property ownership has not recently
been identified as a fundamental right that would trigger any strict scrutiny inquiry.
Generally, mandatory affordable housing regulations do not implicate fundamental rights or
suspect classes. Review of equal protection claims will therefore use the same type of reasonable
relationship standard as is applied to substantive due process claims. For this reason, affordable housing
requirements should survive equal protection challenges if they are designed in a way that is rationally
related to the legitimate governmental interest of ensuring the provision of affordable housing in a
community.
(c) Takings
Probably the most serious hurdle in the successful implementation of an affordable housing
program is addressing takings claims.' In the broadest sense,the United States Supreme Court generally
recognizes two types of takings challenges that are relevant to affordable housing programs: (1)
government acts that result in physical invasion or occupation of property and (2) regulatory takings.
^The fifth amendment provides in part that private property shall not be"taken for public use,without just compensation." The
takings clause was held applicable against the states through the fourteenth amendment in Mugkrv.Kansas, 123 U.S.623(1887).
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,,..,, Regulatory takings are categorized into three sub-components: (a) Nolan challenges that the regulation
fails to substantially advance legitimate governmental interests because there is no "essential nexus"
between the legitimate governmental interest and the government action or regulation; (b) claims that the
government regulation "goes too far" by denying the property owner all economically beneficial use of
property; and (c) Dolan challenges that certain types of land exactions imposed as a condition of
development are not"roughly proportional"to their impact on the community.
(i) Subswtia4 Ad nnang a Legitimate Gamrnew Interest: "Essential Nexus" and
"Rough I'roprn'tiarrality"
A fairly recent expression of the limitations placed on governmental actions by the federal
takings requirement is found in NoAmt v. Cal fo»ua Carstul Qwvnn, 483 U. S. 825 (1987). In Nollcnz, 483
U. S. 825, as a condition on a permit for re-developing an existing bungalow on a beachfront lot, the
California Coastal Commission attempted to require a dedication of a lateral public easement across the
lot to connect two public beaches that were separated.by the lot. The Coastal Commission stated in
IMP Mg the condition that its purpose was to promote the legitimate state interest of diminishing the
"blockage of the view of the ocean" caused by construction of the larger house. The United States
Supreme Court disallowed the exaction as a regulatory taking of property, and adopted a standard of
review which required governmental actions taken as part of development review to have an "essential
nexus" to the legitimate governmental purpose on which the action is based. This "essential nexus"
standard, as applied by the court in No&m, involved an inquiry about whether there is a basic and
reasonable relationship between the legitimate governmental purpose being addressed and the action
taken pursuant to the governmental regulation. The court determined that in Nollan there was none.
How enhancing the public's ability to `traverse to and along the shorefront' served the same
governmental purpose of `visual access to the ocean' from the roadway was beyond our ability to
countenance.The absence of a nexus left the Coastal Commission in the position of simply trying to
obtain an easement through gimmickry,which converted a valid regulation of land use into `an out-
and-out plan of extortion.' ... Do&ai v. City of Tigard, 512 U.S. at 387 (Supreme Court discussing its
decision in Nollan).
Federal courts have applied the No&v; 483 U. S. 825, "essential nexus" requirement in one case
relevant to affordable housing requirements. In CarnrnErcid Builders of Nmd"n Gal j&?= v City of
Sacramento, 941 F.2d 872 (9th Cir. 1991), art denim 112 S.Ct. 1997 (1992), the Court of Appeals for the
Ninth Circuit upheld an affordable housing linkage fee program for nonresidential development,in part,
on the grounds that the fee imposed met the "essential nexus" requirements of Noam. According to the
Court, the fee bore "a rational relationship to a public cost closely associated with [the]
development."(941 F.3d at 874) The Court went on to hold that NoAan only meant that where there is
no evidence of a nexus between the development and the problem that the exaction seeks to address, the
exaction cannot be upheld"(941 F.3d at 875).
As in Qnrneniod Builders, 941 F.2d 872, it appears likely that affordable housing requirements in
the County for new residential, commercial and tourist development can be designed to comply with the
"essential nexus" standard of Nolan, 483 U. S. 825. Trend data on housing and land sales in the County
should demonstrate that the second home and resort market have increased housing costs for the
resident population, which an inclusionary requirement and in-lieu fee can proportionately address.
Trend data on employment in the commercial sector of the community can demonstrate the affordable
housing needs created by new commercial development, which an inclusionary requirement and in-lieu
,.�.� fee can proportionately address. Trend data on employment can also demonstrate the affordable housing
needs created by new tourism development, which an inclusionary requirement and in-lieu fee can
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proportionately address. In addition, data on how the free market residential units "use" the services of
repair,maintenance, and property service firms can demonstrate that additional free market construction
is creating a need for more service workers in the County- workers who cannot afford to live in the
county without an effective affordable housing program.
(ii) Ecmwzica4 Bwgidal Use of P
Justice Holmes stated in Penn5Awzia Carl Co.a Mahan, 260 U.S. 393 (1922), "... [t]he general rule
at least is, that while property may be regulated to a certain extent, if it goes too far it will be recognized as a taking" (260 U.S. at 415). One way a regulation "goes to far" so as to effect a regulatory taking is to
deprive a property owner of all economically beneficial use of his or her property.Lucas v. South Carolina
Carstal Cbwu , 505 U.S. 1003 (1992); Clajon I'r� COTOratibn V. Petera, 70 F.3d 1566 (10,b Cir. 1995);
Loz.dadies Harbor Inc a U k&States,28 F. 3d 1171 P.C.Cir. 1994).
The current law requires that before a court of law finds that a regulation has "gone too far" and
denied a property owner all economically beneficial use of property, the property owner must
demonstrate that:
(1) There was a denial of economically viable use of property as a result of the regulatory
imposition (either a "categorical taking," Lucas, 505 U.S. 1003 , or a"partial taking," Loviadks, 28 F 3d 1171;Florida Rack Industries,Inc.a Unital Ste, 18 F. 3d 1560 (1994));
(2) The property owner has distinct investment backed expectations Pam Central Transp. Ca V.New York City,438 U.S. 104 (1978);Lozeladies,28 F. 3d 1171);and
(3) It was an interest vested in the owner,as a matter of state property law,and not within the
state to regulate under common law nuisance doctrine.Lucas, 505 U.S. 1003.
Affordable housing requirements can be designed so as not to deprive a property owner of all
economically beneficial use of his or her property.However,to ensure the regulation does not generally
result in the denial of all beneficial use of property, several things should be done. First, an analysis of
development feasibility should be undertaken before determining affordable housing requirements
(levels) to evaluate the likely effect of the regulations on the ability of property owners to enjoy an
economically viable use of the property considering the amount of the affordable housing fee.
However, it should be noted that the law does not require that the County provide every property
owner or developer with a profit on land, and generally the inquiry is whether the property owner has
been deprived of all economically viable use of the land.
" Second, the regulations should include a
special study"provision that allows a developer to show that providing the required levels of affordable
housing would make any development economically unfeasible, and show the amount of affordable
housing that could be accommodated. The County may also want to consider requiring the property
owner to demonstrate as part of the "special study" that there is no economically viable use available
under the existing regulations.
(iii) Rmgh PizJprmicrrality
The most recent expression of the limitations placed on governmental actions by the federal
takings requirement are found in Dolan v. Crty of Tigard, 512 U.S. 374 (1994). In that case, as a condition
on a permit for expanding an existing business, the City of Tigard attempted to require a dedication of
property for a bike path to alleviate traffic congestion and a greenway to help in flood control. The
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Legal Parameters
.r•. United States Supreme Court disallowed the exaction as a regulatory taking of property without just
compensation. The court adopted a standard of review which required any discretionary (adjudicative)
land exaction imposed as a condition of development approval to be "roughly proportional" to its
impact on the community.' The court also equated the rough proportionality test with the rational nexus
standard used in state courts'consideration of development exactions or impact fee programs.' "Despite
any semantical differences, general agreement exists among the courts `that the dedication should have
some reasonable relationship to the needs created by the[development]... "' (512 U.S. at 391). The court
explained, "No precise mathematical calculation is required, but the city must make some sort of
individualized determination that the required dedication is related both in nature and extent to the
impact of the proposed development" (512 U.S. at 391).
On the same day that the U.S. Supreme Court decided the Dolma case, it remanded EhAh v.
Cuher City, 512 U.S. 1231 (1994), for reconsideration by the California Supreme Court in light of the
Dolan decision. Ehy", 911 P.2d 429 (Cal. 1995), of daucr 519 U.S. 929 (1996), involved a local
government's attempt to impose a discretionary and a non-discretionary (i.e. formula-based) fee on an
applicant for a redevelopment permit. The California Supreme Court subsequently held that the Dolan
requirement of rough proportionality applied to the discretionary fee, but not to the formula-based fee,
and the U.S. Supreme Court did not grant certiorari to review this second decision. Read together, the
Dolan and Erluh cases suggest that the rough proportionality standard probably does not apply to
formula-based land dedications or fees. See also Parking Asso6ut of Gex* Inc- v. City of Atlanta, 515
U.S. 1116 (1995) (Supreme Court denied certiorari in instance where Georgia Supreme Court failed to
apply Dolan standard to Atlanta ordinance (non-discretionary (legislative) decision) requiring certain
existing surface parking lots to include landscaped areas equal to at least 10 percent of paved area and to
have at least one tree for every eight parking spaces;Thomas and O'Connor dissenting).?
Because the existing and proposed affordable housing exaction program is and will be
"legislatively formulated" and "non-discretionary," it appears the rough proportionality standards of
Dolan probably do not apply.
5 It should be noted that the United States Supreme Courtin Dolan instead of using the term"rational nexus"or"reasonable
relationship,"as has been established in the state court opinions,characterized the test as"rough proportionality,"even though it is
the rational nexus/reasonable relationship standard that they embraced. The Supreme Court refused to use such a term such as
"reasonable relationship" "Y partly because the term'reasonable relationship'seems confusingly similar to the term'rational basis'
which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment."
G State court decisions cited with approval include Simpson u Nortb Platte,297 N.W.2d 297(Neb. 1980);Jordan u Village ofMa omm
Falls, 137 N.W.2d 442 (Wisc. 1965),appeal dismissed,385 U.S.4 C
'1966• ollisv.Bkornbgton
Station ,Turde Rock Carp.,680 S.W.2d 802 ( ) ,246 N.W.2d 19(Minn. 1976);Co
(Tex. 1984);and Ca11 a City of West Jordan,606 P.2d 217(Utah 1979).
7 It should also be noted that the Court of Appeals for the Tenth Circuit in CL*n Pr nn Corporation u Patera,70 F.3d 1566(loth Cir.
1995)supports the principle that the rough proportionality standard of Dolan only applies to discretionary(versus non-discretionary,
formula-based)land dedications or fees.In Clajon,the court held that Nolan and Dolan... "(and the tests outlined therein)are limited
to the context of development exactions where there is a physical taking or its equivalent"(70 F.3d at 1578).Development exactions,
as defined by the court in the case are:
...where a governmental agency requires that a property owner dedicate some of his or her land for public use before
granting that property owner a permit to develop land.This`exaction'of land often involves the actual deeding of some of
the property to the public—either in the form of an easement or an outright transfer of the land.
70 F.3d 1578 (footnote 20).Other cases,including C.0r2nmill Builders,941 F.2d 872,suggest that the reach of Nolan is broader.
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,0W*-1 4) Conclusion
In sum,the County has 1034 Powers to adopt affordable housing requirements.The authorizing language
most relevant to affordable housing regulations is CRS§29-20-104 (g),which authorizes local governments to
regulate the use of land based on its impact on the community and surrounding areas. This is so because at
the heart of Pitkin County's affordable housing requirements is the legitimate governmental objective of
maintaining community character by ensuring that housing remains affordable to the local work force.
Assurance that the local work force can live in the County is important to community character because its
ensures the local work force is part of the local social, intellectual and political fabric - by sending their
children to school in the community,worshipping in the community, and expressing their ideas in local civic
organizations and at the ballot box. The development exaction should be imposed on all new residential,
commercial, and tourism development, and the County should also explore including some significant
development activities which historically have been excluded from the exaction such as approved
subdivisions who have not previously mitigated, remodels and replacement units. It also appears likely that
affordable housing requirements can be designed to comply with the "essential nexus" standard, address any
fifth amendment concerns related to claims that the regulation results in a physical invasion of property or
denies all beneficial use of property,and address any substantive due process and equal protection challenges.
In addition, even though not legally required,the program should be designed to meet rough proportionality
standards.
C. Existing Data
The data that has been provided for the affordable housing analysis includes the following:
1. 1990 Census of housing;
2. 1985-1998 Pitkin Housing Data
a. Total housing units;
b. Vacant Housing units-presumed to be seasonally occupied;
c. Net building permits;
d. Group quarters population;
e. Household population; and
f. Average housing hold size;
3. 1988, 1990, 1991, 1994, 1995, 1997 Aspen Appraisal Group "Aspen/Snowmass Market
Overview;"
4. 1985-1997 Pitkin County employment by sector by where employed;
5. Employment projections to 2020;
6. 1985-1997 Pitkin County earnings by sector by place of residence;
7. 1985-1997 Pitkin County per capita,per family and per house hold income;
8. 1985-1998 Pitkin County labor force,employment and unemployment; and
9. Consumers Price Index for US all years and for Pitkin County not now available.
The data that is still needed to complete the analysis includes:
1. Inventory of affordable housing units by type by year
a. Under the control of the Housing Office; and
b. All other
2. Local - Aspen and/or Pitkin County cost of living index and cost of housing index, ifavailable;
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�,.., 3. Net residential building permits by type of unit -- single family,multifamily,etc.;
4. Housing projections;
5. The number of tourists by year 1985 to most recent;
6. Tourist projections;
7. Employment projections; and
8. The County's web page contains employment projections. But,the 2000 projection (16,798)
is less than the 1993 total employment (17,614). Have more recent projections been made?
If not, can we use the percentage changes in the web page data to project labor force,
employment, etc? Some projections will be needed in order to project affordable housing
need.
D. Program Options and Recommendation
Based upon the analysis conducted in this Policy Memorandum, it appears that the general
framework for the update of the development exactions for affordable housing should continue to be
lodged within the Development Exactions section of the County's Code. Sec. 3-130-020, PCLUC,with
consideration of a building permit exaction requirement for that development which does not require
land use approvals (e.g., subdivisions, remodels and replacement units). Within this context, the update
,•-• will focus on several specific components of the exaction requirement.They include:
• Demonstration of Need. An analysis that confirms and demonstrates the general
affordable housing problem in Pitkin County and Aspen, and identifies existing needs and
future needs. This analysis will help demonstrate that the program is substantially advancing
the legitimate governmental purpose of ensuring adequate affordable housing in the
community.
• Inclusionary standards. Based upon the initial analysis described above and the available
data, evaluation of the inclusionary standards for residential, commercial and tourist
development, and if appropriate, proposal of revised standards. To the extent relevant and
appropriate (and if the appropriate data is available), inclusionary standards for residential
development may be refined and based on the size of the unit.
• Fee-in-Lieu. Based upon the new data and conditions in the County, and the analysis
outlined above, evaluation of the in-lieu fee amounts for residential, commercial and tourist
development, and if appropriate,proposal of revised in-lieu fee amounts.
• Timing. Modification of the existing provisions so that the developer commitment to
provide the exaction is made at time of subdivision, or an even earlier stage of development
review, dedication of land is made at the time of approval of subdivision, construction
occurs concurrent with construction of the other components of the project, and in-lieu fees
are determined (so that the fee paid is at the going rate at the time of payment) and paid
prior to issuance of a building permit. For other development not requiring subdivision,the
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,.., fee could be tied to building permit issuance (e.g., approved subdivisions, remodels and
replacement units).
• Exemptions. Modification of the exemptions to ensure any significant remodels or
redevelopment are subject to the terms of the exaction provisions, and other loopholes are
closed (e.g.,housing on exempted subdivision lots; free market units in the AH zone district;
housing on lots created through a 50 percent density reduction lot split; and perhaps houses
on TDR receiving sites).
• Text Amendments. Preparation of other text amendments to the existing Sec. Sec. 3-130-
020, PCLUC, that will make the regulation more workable and consistent with County
objectives, and incorporate the recommendations from the analysis outlined above.
Proposed text amendments will be discussed with County staff at the meeting on this draft
Policy Memorandum and will at a minimum include revisions to the independent calculation
provision and the addition of a beneficial use determination provision.
E. Methods
Initially, in evaluating the inclusionary standards and in-lieu fee, support linking the affordable
housing problem and need will be outlined. It is assumed that a trend analysis will demonstrate
the affordable housing problem in Pitkin County is based on three phenomena.First,the cost of
producing a housing unit. Second, the external demand for housing, both permanent and
seasonal, and the increase in housing prices resulting from such demands. And third, the
increased demand for labor at wages and salaries that are not sufficient to provide households
with housing. Together,it is assumed the data will show that these three factors lead to a chronic
shortage of housing that is not within the means of a large portion of the resident employees. To
the extent the data demonstrate other factors influence the phenomena, they will also be
identified.
More specifically, the method to be employed to demonstrate and evaluate need will begin with
the development of three time trends:
■ The net increase in and sales prices of (market) housing units from 1988 to the most recent
time for which data are available;
■ The Pitkin County labor force, employment, earnings, ability to pay for housing, the net
immigration of labor, and the number of affordable units needed to attain the County's goals
of providing affordable housing from 1988 to the most recent date for which housing data
are available; and
■ The provision of affordable housing units over the time span of the two prior series, arriving
at net affordable housing need.
These time trends will yield the time dynamics of housing need. Additionally,these time trends may be
correlated with other relevant trends in order to ascribe some degree of affordable housing causality to
other trends, such as seasonal housing demand, employment growth, and growth in the number of
.,, tourists.
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Employment, population and tourist projections will allow the projection of affordable housing
needs. The affordable housing needs can then be associated with the individual causal agents with the
result being an exaction formula. This formula will be expressed in terms of housing units. This will be
done for residential, commercial and tourist development. The ratio established for residential
development will be based on a function of the anticipated difference between the market prices of the
subject development and affordable prices. The ratio for commercial and tourist development will be
based on the number and proportion of employees that fall into income ranges associated with a need
for affordable housing. The trend in the cost of providing affordable housing units will also be used to
convert the need for units into a necessary subsidy(in-lieu fee) by general wage level.
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III. PARKS/OPEN SPACE/AGRICULTURAL LANDS
A. Overview of Existing Environment
1) Parks/Recreation/Open Space Development Exactions
The County currently imposes parks/recreation/open space development exactions on new
residential subdivisions (Subsection 3-130-040,Pitkin County Code). The exaction standards require land
dedication in the amount of 10.5 acres for every 1,000 residents of a proposed subdivision.$ This
standard applies equally to parks, recreation, and open space properties. Resident population projections
are determined based on the following table:
Residents Per D�vcllijj_ Ullit
Type of pwelling unit Number of lZe'sidents Per Dwelling Unit
Studio 1.25
One Bedroom 1.75
Two Bedroom 2.25
Three Bedroom 3.00
Four or More Bedrooms 3.00 residents plus 0.50 residents/bedroom
for each bedroom over 3
Dormitory 1.00 resident/150 square feet of net livable
space
For mixed-use developments, the Code requires the required dedication to be "based upon the
,.-•. minimum lot area required by the Code for dwelling units."
An applicant may satisfy the land dedication requirement with a cash-in-lieu payment equal to
the current market value of the land required to be dedicated. The Board of County Commissioners is
authorized to approve or deny requests to pay cash-in-lieu of land dedication, based upon whether the
development itself requires on-site parks/recreation/open space land on-site, and whether the County
has identified the applicant's proposed development site as being appropriate for parks/recreation/open
space land.
2) Trail Development Exactions
The County imposes trails development exactions on new residential and commercial
subdivisions and tourist accommodation developments, though approved subdivision exemptions are
exempt (Section 3-130-070,Pitkin County Code). The exaction standards are as follows 9:
(a) Whenever a tract to be subdivided includes any part of a trail or trails designated on the Pitkin Trail
System or historically used trails, the developer shall plat and grant public easements consistent with County
Trail standards and specifications and in a location acceptable to the Board of County Commissioners.
8 The exaction standards are based upon consideration of the following documents:Aspen Area Community Plan:
Parks/Recreation/Open Space/Trails Element;Pitkin County Down Valley Comprehensive Plan;Roaring Fork East Master Plan;
State Highway 82 Corridor Master Plan;Pitkin County Plan for Access to Public Lands;and the 1977 Growth Management Policy
Plan.
9 The trails exaction standards are based upon consideration of the following documents:Aspen Area Community Plan:
Parks/Recreation/Open Space/Trails Element;Pitkin County Down Valley Comprehensive Plan;Roaring Fork East Master Plan;
State Highway 82 Corridor Master Plan;and the Pitkin County Trails Plan.
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(b) Whenever a tract of land is traversed by or abuts a river or creek,the developer shall plat and grant a
public fishing easement to include the stream and the land area five feet(51 beyond the high water mark on the
stream bank.
No cash-in-lieu option is available.
3) Pitkin County Open Space and Trails Program
In 1990, the County created the Pitkin County Open Space and Trails Program in order to
enhance and supplement land acquisition efforts. The program's mission is: "to acquire, preserve,
maintain and manage open space properties for multiple purposes, including, but not limited to,
recreational,wildlife, agricultural, scenic and access purposes; and to acquire,preserve, develop,maintain
and manage trails for similar purposes." In November 1999 the public approved a ten-year
reauthorization and enhancement of the program.
The program authorizes a special levy on property taxes of 2.5 mills through 2000, rising to 3.75
mills from 2001-2010. Expected revenue for 2001 is $5 million. Also, the program is authorized to
incur additional general obligation indebtedness up to $18 million. Revenue is divided into three
program areas: open space acquisition (75 percent), trails acquisition (20 percent), and maintenance (5
percent). Through 1999,program purchases have protected 7266.74 acres of open space lands and over
20 miles of trails (includes properties acquired and maintained with open space funding, and general
fund properties maintained with open space funding). These lands have included high visibility scenic
areas,wildlife habitat,recreational trails/lands, and operational ranchlands.
Staffing for the program consists of two-full time employees, in addition to support from a
volunteer Board of Open Space Trustees, who are appointed by the Board of County Commissioners.
The Board of Open Space Trustees makes recommendations to the Board of County Commissioners
who must approve all acquisitions. The Board of Open Space Trustees approves development
management guidelines and relevant policies and procedures to guide the expenditure of Program funds.
The Board of County Commissioners makes final approval of all acquisitions. The County Charter
prohibits the sale or conversion of a designated open space property unless approved by a majority
popular vote and replacement with real property of equivalent monetary value and value to the program.
There is no formal acquisition plan for the program, specifying what properties are targeted for
future purchase. The 2000 AACP Action Plan included a "Greenfrastructure Plan" which identifies
parcels or portions of parcels to be targeted for future open spaces or parks, but this document only
includes the Urban Growth Area.
The following table summarizes program acquisitions from 1991 through 1998.
fear Pro'ect Acres/Miles Expenditure
OPEN SPACE
1991 ban /Kittle Trailhead and Open Space 11.10 $159,344.0
1991Klein/Redstone Park Open Space 0.17 $37,500.0
1992 Mwre Property Open Space 65.00 $3,062,131.6
,r•�. 1992 Arciero Trailhead 0.01 $190,000.0
1993 Reeder Open Space 0.44 $350,000.0
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Past M /Patin/Open Space/Agricultural Lands
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Year Project Acres/Miles Expenditure
1993 ioneer Park 0.14 $75,000.0
1993 on Ranch en S ace 183.00 $300,000.0
1993 raden House Private Open Space 12.47 $25,000.0
1993 er O n Space 5.85 $61,500.0
1993 erham Creek Trailhead 4.01 $45,000.0
1993 ubin O en S ace 1.14 $1,491.0
1994 on Pro a /Elk Park 0.82 $138,765.2
1995 even Star Ranch Castillion 144.74 $1,600,000.0
1995 even Star Ranch Conservation Easement 60.37 $0.0
1996 hant Boy MiningClaim#4425 10.00 $17,796.8
1996 aver Kin Associates Open Space 9.60 $115,000.0
1996 ' Claims#7009 and#5364 a neur 45.00 $65,561.0
1996 och Prope Open Space 32.57 $0.0
1996 asalt/Kiwanis River ParkMeyer) 0.00 $30,000.0
1996 roste Ranch Conservation Easement 99.03 $240,000.0
1996 mstar Conservation Easement 957.00 $250,000.0
1997 art Conservation Easement 292.00 $1,400,000.0
1997 ' bird Lode Auster Dr-pa 10.00 $2,600,000.0
1998 och 4.28 $0.0
Total Open Space 1,948.74 $10,764,089.7
TRAILS
eo", 1991 b /Kittle Trail Easement 0.67 $40,656.0
1992 orth Star Bride and Trail 0.10 $72,824.0
1992 ciero Trail Easement(paved) 0.76 $1259000.0
1993 enedict Nordic Trail 0.19 $0.0
1993 enedict River Trail Easement 0.25 $0.0
1993 Trail Easement aved 0.00 $3,885.0
1993 orrow Trail Easement(paved) 0.00 $13,650.0
1993 er Trail Easement(paved) 0.00 $61,500.0
1993 Coal Creek Road Easement 1.25 $25,000.0
1994 tillwater/Benedict Trail Easement Relocation 0.00 $0.0
1994 hadowwood/Thomas Trail Easement 0.02 $1,000.0
1994 hadowwood/Thomas Trail Easement Relocation 0.00 $16,995.0
1994 LM Trail ROW Moow) 0.00 $12,058.2
1994 efner Trail Easement(paved) 0.00 $9,286.6
1994 asalt/Old Snowmass Trail(paved) 4.00 $729,385.0
1994 lk Run Trail(paved) 0.32 $50,000.0
1995 ast Aspen Trail Easement 1.40 $308,200.0
1995 oon Creek Highway Bride 0.12 $16,000.0
1996 SFS Discovery Trail 0.25 $17,000.0
Tota]Trails 9.33 $1,502,439.8
4) Open Space -Definition
^ The County has not adopted a formal definition of "open space" in its Land Use Code or any
other documents. The Code does authorize imposition of a "parks/recreation/open space" exaction, as
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,..., discussed above, but does not define those terms. For purchases though the Open Space and Trails
Program, "open spaces" are simply those acquired with program funds (fee or easements).
There is no formal acquisition plan, and the Open Spaces and Trails Regulations (BOCC
Ordinance #93-25) provide only general criteria to guide the Open Space Board of Trustees in these
acquisitions. Essentially, according to these criteria, "open space" is anything the County chooses to
label as such.
The trails,trailhead parking lots,open spaces and attendant facilities and structures that are named as
Open Space or Trails through Resolution or Ordinance of the Pitkin County Board of Commissioners
are declared to be Pitkin County Trails and Open Space Properties, and further, that trails, trail
easements or open spaces previously acquired by the County through such actions and documented in
the Pitkin County Land Database, compiled May, 1992 and updated periodically thereafter, are
likewise declared to be Pitkin County Trails and Open Space Properties; and further,that properties
acquired by funds designated for the Open Space and Trails Program are declared to be Pitkin County
Open Space and Trails Properties, and further,that properties may be added to or deleted from the
inventory of Pitkin County Trails and Open Space Properties according to applicable statutes and by
Ordinance or Resolution of the Board of County Commissioners, and amendment of the Pitkin
County Land Database(Section 1-1,BOCC Ordinance#93-25:Open Space and Trails Regulations).
Somewhat more meaningful guidance is provided in the following section: Open Space and Trails
Properties include, but are not limited to:
... County owned and maintained trails, trailheads,parking areas, signs, mining claims, open spaces,
parks, river access points for boating or fishing purposes, bridges, wildlife areas, and easements
obtained for the purposes of wildlife habitat preservation, scenic preservation, agriculture, access to
public lands or for other purposes identified by the County (Section 1-2, BOCC Ordinance #93-25:
Open Space and Trails Regulations).
In the late 1980s, a Down Valley Comprehensive Plan ("DVCP") was adopted for a portion of
the County, and this plan does contain a future land use map that classifies land as "Open Space" or
"Agricultural/Wildlife Reserve." According to County staff,however,the DVCP is dated and of limited
use for land classification purposes. Similarly, County staff caution that "agricultural" tax assessments
are of limited value, due to a suspected high number of owners taking advantage of agricultural-related
tax benefits,yet not truly engaging in agricultural activities on their land.
S) Agricultural Lands —Definition
For purposes of land-use planning and regulation, the County thus far has not clearly
distinguished between agricultural lands and open space. The Pitkin County Land Use Code does not
explicitly define "agricultural lands." The Code does, however, define an "agricultural operation" to be
"a use of land for soil cultivation, crop production and the raising of livestock." The Code also requires
that land uses: "[E]nsure the preservation of at least ninety-five percent (95%) of the acreage historically
available for human food production, or hay,grain and other feed crops for livestock" (S 3-70-060(C)).
According to County officials, open space acquisitions by the Board of Open Space Trustees
may include agricultural lands where a conservation easement is placed on the land but the right to faun
is still retained. Open space acquisitions typically do not include park lands, but there are some
exceptions where the predominant value of the land is for open space but there is still some active park
use retained on the land.
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Recent efforts to clarify the relationship of agricultural lands to open space have met with limited
success. A newly formed land-preservation group called the "Agricultural Committee" considered the
merits of proposing a formal definition of"agricultural land," but decided not to do so in order to avoid
having to specify whether such lands must remain in active agricultural production. Group members
believed, according to the County, that the primary value of such lands is open space, rather than
traditional agriculture. For mapping purposes, the Committee decided to identify all 70-acre parcels in
the County as appropriate for a "rural lands overlay" (though this recommendation has not yet been
implemented through legislation).
B. Legal Parameters
1) Authority
Counties in Colorado have broad authority over parks and open space. CRS § 29-7-101(1)
provides that:
Any ... county ... may acquire, sell, own, exchange, and operate public recreation facilities, open space and
parklands, playgrounds ... ; acquire, equip, and maintain land, buildings, or other recreational facilities either
within or without the corporate limits of such...county;and expend funds therefor for all purposes connected
therewith.
(a) Subdivisa RTulz6gu
Under Colorado law, each county must adopt subdivision regulations, and those regulations
must address the provision of parks. The relevant provision states:
(4) Subdivision regulations adopted by the board of county commissioners pursuant to this section shall
include,as a minimum,provisions governing the following matters:
(a) Sites and land areas for schools and parks when such are reasonably necessary to serve the
proposed subdivision and the future residents thereof. Such provisions shall include:
(II) Dedication of such sites and land areas to the county or to the public or, in lieu
thereof, payment of a sum of money not exceeding the full market value of such
sites and land areas or a combination of such dedication and such payment; except
that the value of such combination shall not exceed the fair market value of such
sites and land areas. If such sites and land areas are dedicated to the county or the
public, the board of county commissioners may, at the request of the affected
entity, sell the land Any such sums,when required, or moneys paid to the board
of county commissioners from the sale of such dedicated sites and land areas shall
be held by the board of county commissioners:
(A) For the acquisition of reasonably necessary sites and land areas or for
other capital outlay purposes for schools or parks;
(B) For the development of said sites and land areas for park purposes; ...
CRS.§30-28-133(4)(a) (1997).
The Colorado Supreme Court's decision in Board of Coca y Ca tmzs oners of Douglas Camty u
,.•. Bainbridge, Inc-, 929 P.2d 691 (Colo. 1996), confirms the County's use of CRS §30-28-133(4)(a) as the
source of authority for the imposition of park land dedication and/or in-lieu fee requirements. Even
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Legal Parameters
,,r_ though the case involved challenges to school impact fee regulations adopted by Douglas County and
Boulder County, it is relevant to Colorado counties' imposition of park land dedication and/or in-lieu
fees for several reasons. The most important is that the Court held that the source of authority Colorado
counties have for the imposition of school exactions is the state's subdivision statute, CRS§30-133(4)(a),
which expressly authorizes the imposition of land dedication and/in-lieu fees for schools andpzrks.
The second is that the Court rejected arguments in the case by the local governments that
Colorado counties had implied power to adopt school fees from the other potential sources from which
local governments might imply powers. These include: (1) the CRS§30-28-107 requirement that counties
consi
der"educational opportunity" in the preparation of land use plans. (there are similar provisions for
parks which require land use plans to consider "conservation" and "recreational opportunities"); (2) the
Local Government Land Use Control Enabling Act (CRS §29-20-104(1)), which allows regulating land
use on the basis of"phasing development"and"regulating land use on the basis of the impact thereof on
the community and the surrounding areas" (this is also potentially relevant to parks); (3) the Land
Development Charges Statute (CRS §29-1-801), and (4) the Planned Unit Development Act of 1972
(CRS §24-67-102(1)(a)), whose purpose, in part, is to "provide for necessary commercial, recreational,
and educational facilities conveniently located to[housing built as part of a planned unit development]".
Because the source of authority for school and park dedications is the same — namely CRS 530-133(4)(a)
— it is likely that a court would not find implied power to adopt impact fees for parks in any of these
other provisions:CRS§§ 30-28-107,29-20-104(1),29-1-801, or 24-67-102(1)(a).
2) Other State Law Considerations: The Rational Nexus Requirement
Even though there are no park exaction cases directly on point in Colorado, there are several
cases holding that development exactions for capital infrastructure like parks, roads, potable water, and
wastewater facilities must generally establish a rational nexus between the impacts of (or potential harm
caused by) the development and the government's exaction. See Kings Mill Hanmr ms Association a City
of Wesbnvzster, 557 P.2d 1186 (Colo. 1976); Bethlehem Eu=gduul Lutheran Chunk v. City of Lakeuxxd, 626
P.2d 668 (Colo. 1981); City of Aruxda v. City and Qwzty of Lbnxer, 663 P.2d 611 (Colo. 1983); City of
Colorado Springs v. Smam, 620 P.2d 1060 (Colo. 1980); Bloam v. City of Fort Collins, 784 P.2d 304 (Colo.
1989); Loup-Miller C nstruazcn Co.v. City and Coin,of Daner, 676 P.2d 1170 (Colo. 1984); and Woal Bats.
Hanes, Inc- v. City of Colorado Springs, 568 P.2d 487 (Colo. 1977). Cases in nearby states have also
embraced the rational nexus requirement. See e.g., Bankny Daa*nxnt Corp v. South Jordan City, 631 P.
2d 899 (Utah 1981); Coulterv. City of Rau ns, 662 P.2d 888 (Wyo. 1983); Simpson V. North Platte, 297 N.W.
2d 297 (Neb. 1980).
As is outlined in more detail in the legal discussion on affordable housing (Section H. B.2)),
although the Colorado General Assembly attempted in 1999 to codify some of the state's nexus
requirements in CRS 29-20-203, that statute does not impose new requirements on legislatively
formulated (non-discretionary) land exactions or fees-in-lieu. Consequently, if a land exaction and/or
fee-in-lieu system are crafted as "legislatively formulated assessment[s], fee[s], or charge[s] imposed on a
broad category of property owners" then the "roughly proportional" standard of CRS 29-20-203(1) does
not apply. Similarly,if they are not discretionary—i.e. they are required to be imposed pursuant to a pre-
established formula — then subsection (2) does not apply. The existing and proposed parks/open
space/agricultural lands exaction is and will be both "legislatively formulated" and "non-
discretionary"/formula-based. Consequently,the "roughly proportional" standards of CRS 29-20-203 do
not apply.
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Legal Parameters
,.�•, Nevertheless, given the specific language in the subdivision statute and the case law of Colorado
and nearby states, development exaction regulations in Colorado for capital infrastructure like parks and
roads should comply with the rational nexus standard. At its heart, that standard requires development
exaction regulations adopted by local governments meet the following criteria:
1. A showing that new growth and development is expected over a time horizon, and that new
growth and development will require capacity expansion of the relevant capital facility (in this
instance parks/open space/agricultural lands);
2. Evidence that the exaction imposed does not exceed a proportionate share of the cost the local
government will incur to provide the necessary capital facility (parks/open space/agricultural
lands) expansion to accommodate the new growth and development. This is not required to be
a showing of exclusive benefit, but a general area-wide or cost-accounting approach that links
general demand and need; and
3. An assurance that those dedicating the land or paying the fee will receive sufficient benefit for
the land dedicated or fees paid, within a reasonable period of time. For fees, this is usually
effectuated by a requirement that the fees be earmarked for expenditure for the relevant capital
facility(in this instance open space/agricultural lands),and that they be spent within a reasonable
period of time. For lands, this requirement is usually met by placing the lands in use for the
relevant capital facility within a reasonable period of time.
3) Federal Constitutional Requirements
Finally,as is discussed in Section II.B. 3) d), recent case decisions under the fifth and fourteenth
amendments to the U.S. Constitution have imposed Bruits on the types and amounts of land exactions
permitted by local governments. The most recent expression of this federal requirement appears in
D614n v. City of Tigard, 512 U.S. 374 (1994), in which the court adopted a standard of review which
required any discretionary land exaction imposed as a condition of development approval to be "roughly
proportional" to its impact on the community.10 The court equated the rough proportionality test with
the rational nexus standard used in state courts' consideration of development exactions or impact fee
programs." The court explained, "No precise mathematical calculation is required, but the city must
make some son of individualized determination that the required dedication is related both in nature and
extent to the impact of the proposed development."
On the same day that the U.S. Supreme Court decided the Dawn case, it remanded Ehrlich u
Cube- City, 512 U.S. 1231 (1994) for reconsideration by the California Supreme Court in light of the
DoLm decision. Ebdkh, 911 P. 2d 429 (Cal. 1995), cert dazial, 519 U.S. 929 (1996) involved a local
government's attempt to impose a discretionary and a non-discretionary (i.e. formula-based) fee on an
applicant for a redevelopment permit. The California Supreme Court subsequently held that the Dobn
10 It should be noted that the United States Supreme Court in Dolan instead of using the term"rational nexus"or"reasonable
relationship,"as has been established in the state court opinions,characterized the test as"rough proportionality,"even though it is
the rational nexus/reasonable relationship standard that they embraced. The Supreme Court refused to use such a term such as
"reasonable relationship" "...partly because the term'reasonable relationship'seems confusingly similar to the term'rational basis'
which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment."
11 State court decisions cited with approval include Simpson v.North Platte,297 N.W.2d 297(Neb.1980);Jordan v.Village of
+"^ Menomonee Falls. 137 N.W.2d 442(Wisc. 1965),appeal dismissed,385 U.S.4(1966)•Collis v.Bloo ;nor
1976);College Station v.Turtle Rock Corp.,680 S.W.2d 802(Tex.1984);and Call v.City of West Jordan,606 P.2 217(Utah 199).
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Existing Data
.0001- requirement of rough proportionality applied to the discretionary fee, but not to the formula-based fee,
and the U.S. Supreme Court did not grant certiorari to review this second decision. Read together, the
Dolan and Erlid7 cases suggest that the rough proportionality standard probably does not apply to
formula-based land dedications or fees. See also Parking Associankn of C*wgia, Inc v. City of Atlanxa, 515
U.S. 1116 (1995) and Claim Pnxlictzon Crnporation a Petera, 70 F.3d 1566 (loth Cir. 1995), which support
this interpretation of Dblan.
It must be noted, however, that even if the "rough proportionality" standard does not apply to
formula-based exactions and fees, Colorado case law still requires a non-discretionary formula-based fee
program for capital infrastructure like parks to demonstrate a rational nexus between the impacts of
development and the exactions.
4) Conclusion
In sum, the County has the authority to adopt a parks/open space/agricultural lands exaction
pursuant to CRS §30-28-133(4)(a). It should be imposed on new residential and non-residential
development as part of the subdivision review process. It appears that any parks/open space/agricultural
land exaction or fee-in-lieu system that is based on the impacts of new development on those types of
resources can be designed to comply with the rational nexus standard (as well as rough proportionality
requirements, even though it probably does not apply). By ensuring that, in addition, any fee-in-lieu
requirement does not exceed the fair market value of any land that could have been required to be
dedicated under the rational nexus test, Pitkin County can create a system of open space/agricultural
land exactions and fees-in-lieu that satisfies all applicable legal requirements.
C. Existing Data
The data that has been provided for the open space/agricultural lands analysis includes the
following:
1. Inventory of acres;
a. Parks
b. Trails
c. Recreation areas
d. Open spaces
2. Acquisition costs (per acre):
a. Parks
b. Trails
c. Recreation areas
d. Open spaces
The data that is still needed for the open space/agricultural lands analysis includes the following:
1. Inventory of acres;
a. Agricultural lands
2. Acquisition costs (per acre):
a. Agricultural lands
. 3. Average party or household size of seasonal households
4. Average tourist party size
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Level of Service Standards
-OWI, 5. Development costs (per acre):
a. Parks
b. Trails
c. Recreation areas
D. Level of Service Standards
The active recreation areas of Pitkin County (parks and trails) are used and enjoyed by
permanent residents, seasonal residents, and tourists. Collectively these people constitute the demand
upon the County's active recreational areas. Additionally, these groups collectively create the need for
and enjoy open spaces, including agricultural areas. Therefore it is important that any level of service be
expressed in such a way that each of these groups is incorporated into that parameter. The most
expeditious means to express such a level of service is by estimating the "functional" population. The
functional population is the number of people that, at any one time, place demands upon the Pitkin
County system of parks and open spaces.
The typical method of estimating the functional population is on the basis land uses:
Resident Population- Occupied housing units x Average household Size
Seasonal Population= Seasonal Housing Units x Average Parry Size
Tourist Population= Tourist Units x Average Party Size
Employed Population - Employees
Functional Population- Xi"Resident Population+Xz*Seasonal Population
+ X3 *Tourist Population+ X4*Employee Population.
The coefficients Xi represent relative weights that may be applied to the several populations.
Typically the weight for resident population, Xi is less than 1 because many of those residents are also
employees. Likewise,the coefficient for employees,X4,, is less than 1 because many of these employees
are also residents. The resulting functional population will be divided into park and open space
provision to establish levels of service and also into unit costs to determine per capita costs. This level
of service will be expressed in terms of acres of parks and recreational areas per unit of function
population and acres of open space per unit of functional population.
E. Program Options
Conceptually, there are many different ways in which an exaction/fee system can be structured
for parks/open space/agricultural lands. Because of the constraints of Colorado law, we will discuss
three of these options below.
1. Exaction. (The entire system could be structured as a land exaction (with a fee-in-lieu formula));
2. Uybrid. (The parks component could be structured as a land exaction (with a fee-in-lieu
formula),while the open space and agriculture components could be structured as a pure impact
fee system); and
3. Fee. (The entire system could be structured as a pure impact fee system).
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Program Options
Fortunately or unfortunately, the Colorado Supreme Court's decision in Bawd of Cotogy
C7mwszct� of Douglas Courtly v. Bainbridge Inc, 929 P.2d 691 (Colo. 1996) exerts a strong influence on
which of these structures should be chosen. Although Bainbridge did not address a park exaction/fee
system, its decision relied heavily on he court's reading of C.R.S. § 30-28-133(4)(a), which addresses
exactions of school and park lands (often in the same sentence). More specifically,the language of that
statute states that any sums obtained through the sale of dedicated lands or from in-lieu fees may be
used:
(A) For the acquisition of reasonably necessary sites and land areas or for.other capital outlay
purposes for schools or parks;
(B) For the development of said sites and land areas for park purposes; ... [emphasis added]
In essence,the Court's decision in Bainbridge was that since the Colorado General Assembly had
established a system for the exaction of school lands in C.R.S. § 30-28-133(4)(a), Colorado counties were
not free to design alternative or supplemental systems to exact funds for those purposes. In the process,
the Court interpreted"other capital outlays" to include the construction of school facilities, although the
statute was clearly originally drafted as a land dedication system and could not have produced adequate
revenues to construct schools. This broad reading of the reach of C.R.S. § 30-28-133(4)(a), the fact that
school and park issues are intertwined throughout the statute, and the fact that it specifically allows for
monies spent for development of land for park purposes -- suggests that the Colorado Supreme Court
would likewise find that the General Assembly intended to authorize and perhaps limit Colorado
counties to these types of exactions and in-lieu fees to obtain and develop park sites.
At the same time, Colorado's county subdivision statute does not contain a definition of
"parks", and it appears that the term "parks" could be read more broadly to cover other forms of open
space (including agricultural lands). Certainly there is no hint in the statutes that the General Assembly
intended to limit the definition of"parks". In light of the Court's tendency to read the scope of C.R.S. §
30-28-133 broadly, it might in fact be harder to argue that the term "parks" should be read more
narrowly. And any argument that the term "parks" should be read narrowly would, of course,
strengthen the argument that the C.R.S. §§ 29-20-101 (the so-called "1034 Powers") authorizes other
exaction/fee systems for other types of open space (since there would then be no conflict between the
use of 1034 powers and another statutory scheme.) Applying the above facts to the three progra
opti m
ons results in the following conclusions.
1. Exaction. Structuring the entire system as a "parks" dedication scheme under C.R.S. § 30-28-
133, would appear to minim the likelihood of a challenge under Bainbridge. Parks could be
defined to include all types of open space required by Pitkin County. One remaining issue is that
(based on current ratios of parks and open space to population),the required exactions could be
very high.
2. Hybrid. Structuring the system so that "parks" are handled as subdivision exactions under
C.R.S. § 30-28-133 and other forms of open space are acquired through a fee to control the
phasing of development under C.R.S. % 29-20-101 might raise the possibility of a challenge
under Bainbridge alleging that the Colorado Supreme Court views those tools as exclusive
techniques for obtaining open space.
3. Fee. Structuring the entire system as a pure impact fee system might be challenged under
Ba»ibndge,since the same statutes are involved.
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Methods
For all of these reasons, we recommend structuring the parks/open space/agricultural lands
system as a parks dedication scheme under the subdivision statute. As a fallback,if the desired LOS for
these types of lands is very high,Pitkin County may want to consider designing a hybrid system.
F. Methods
The method to be employed in the design of the in-lie fee or fee is straightforward. The per
capita cost would be based on the following method:
Needed Parks Per Capita -Park Acres/Functional Population
Cost per Capita-Parks - (Acquisition Cost per Acre+Development Cost per Acre)
*Needed Parks Per Capita
Parks Cost per Development Unit-Functional Population per Unit*Cost Per Capita-Parks
Needed Recreation Per Capita -Recreation Acres/Functional Population
Cost per Capita-Recreation - (Acquisition Cost per Acre +Development Cost per Acre)
*Needed Recreation Acres Per Capita
Recreation Cost per Development Unit-Functional Population per Unit*Cost Per Capita-
Recreation
Needed Open Space Per Capita - Open Space Acres/Functional Population
Cost per Capita-Open Space -Acquisition Cost per Acre *Needed Open Space
Acres Per Capita
Open Space Cost per Development Unit-Functional Population per Unit*Cost Per Capita-
Open Space
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IV. HEALTH AND HUMAN SERVICES
A. Overview of Existing Environment
1) Overview
The role of the Pitkin County Health and Human Services Department is to ensure the health
and well being of community members, since healthy people are an essential ingredient of a healthy
community and a productive and vibrant local economy.The Health and Human Services Department is
a county agency with three divisions: social services, senior services, and human services. In addition,the
Department "contracts out"with a number of non-profits (contract agencies) for the provision of health
and social services to County residents. These contract agencies include:public health,community health
services, mental health, the Aspen/Basalt Health Clinic, the Aspen Buddy Program, the Aspen
Counseling Center, Afiftencia para latino, outreach services, the Aspen Youth Center, Garfield youth
services, the Basalt Family Resource Center, the family visitor program, Valley Partnership for Drug
Prevention, Response, Roaring Fork Legal Services and others. Through the Department, the County
and these contract agencies collectively provide a broad range of services to the public at affordable or
no cost.
2) Capital Facilities and Costs
Generally, the capital facilities used by these organizations include (1) the 16,000 square foot
Health and Human Services Building on Castle Creek Road (and a portion of the office equipment used
in the building to provide services), (2) 481 square feet of rental space in an office building in Basalt
which is used by social services (and the equipment in that space), (3) the 4,000 square foot Pitkin Senior
Center in the assisted living center owned by the Aspen Valley Hospital (and the equipment in that
space); and (4) space in the Pitkin County Courthouse which is used by Garfield youth services (and the
equipment in that space).
The Health and Human Services Building sits on a 2.87 acre parcel of land. The land is valued at
$2,500,000. The building was constructed by the County in 1991-92 at a cost of $2,021,313. Of this
amount, $400,000 was funded through a federal grant and the balance was paid by the County through
its general revenues. The building houses the offices for the Department, four of the contract agencies
(the Aspen Counseling Center,Roaring Fork Legal Services, Valley Partnership for Drug Prevention and
Response) and three organizations that have indirect ties to the Department (Littlefeet Daycare,
Neighbor to Neighbor (United Way) and Kid's First (a City Department)). The Department has
provided the equipment (office furniture, computers, faxes, copiers, etc.) for its offices and the common
areas in the building (reception area, copying room, and kitchen). The contract agencies have provided
the equipment for their space. The Department has incurred $89,396 (in 1992) to pay for the equipment
in the portions of the building that it uses, and the common areas. The value of the other contents in the
building is unknown at present.
The annual rent the Department is incurring for the rental space in Basalt used by social services
is $8,580. The Department's intent is to continue to use this space into the future. The Department has
provided the equipment (office furniture, computers, etc.) for these offices from the equipment
purchased for the Health and Human Services Building mentioned above.
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Overview of Existing Environment
,.., The County made a$70,000 capital contribution for use of the 4,000 square foot senior center in
1989. The Department has provided the equipment (office furniture, computers, and kitchen equipment)
for this space. It was purchased in at a cost of$112,982.
The amount of space (square feet) in the Pitkin County Courthouse used by Garfield youth
services is unknown. Additionally, no information is provided about the equipment (office furniture,
computers, etc.) used for the space.
3) Operating and Maintenance Expenses
The total operating and maintenance budget for Health and Human Services over the decade of
the 1990s has not been provided yet. Neither have the county's budget expenses for operating and
maintenance over that same period.
4) Revenues
Of the total budget for the Health and Human Services Department in 1999, 48 percent came
form the state of Colorado, 18 percent came from fees (fees charged by the contract agencies for the
provision of services), 14 percent came from the County's general revenue fund, 8 percent came from
local foundations (e.g., the Aspen Valley Medical Foundation and the Aspen Valley Community
Foundation), 5 percent came from individual donors, 3 percent came from private foundations (e.g., the
Iselin Foundation), 3 percent came from special events, and 1 percent came from miscellaneous sources.
See Table_
SOURCE PERCENT
State 48%
Fees 18%
Coup 14%
Local Foundations g%
Individual Donors 5%
Private 3%
Foundations
S ecial Events 3%
Miscellaneous 1%
Sources
S) Regulatory Program
services.At present, the County does not have any development exaction program for health and human
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Legal Parameters
,.. B. Legal Parameters
1) Authority
Authority for the imposition of a development exaction program to fund capital health and
human service facilities to serve new development can be found in the Local Government Land Use
Control Enabling Act (beginning at CRS §§29-20-101), as long as there is no Colorado statutory scheme
to the contrary. Wldkv'zm v. Pitkin Coaaaiy, 872 P.2d 1269 (Colo.App. 1993); Lan' r Coirrrty v. Conder, 927
P.2d 1339 (Colo. 1996); Penzaabsco Inc u Pitkin Canty C'�m'rs, 642 P.2d 915 Colo. 1982); Obome v.
Dmglas C"Ozty Ca?vrm'rs, 764 P.2d 397 (Colo.App. 1989);Douglas C vuo vv.Bah-bridge, 929 P.2d 691 (Colo.
1996). (For a more detailed discussion of this issue see Section II. B. 1) of this Policy Memorandum).
One of the keys to the County's authority to regulate these facilities under 1034 Powers is the Act's
empowerment of County's to plan for and regulate the use of land by providing for the phased
development of services and facilities, and regulating land based on its impact on the community. The
Act reads in relevant part:
29-20-105. _Powers of local governments. (1) Without limiting or superseding any power or
authority presently exercised or previously granted, each local government within
its respective jurisdiction has the authority to plan for and regulate the use of land
by:. . .
(fl Providing for phased development of services and facilities;
(g) Regulating the use of land on the basis of the impact thereof on the community or
surrounding areas;and
(h) Otherwise planning for and regulating the use of land so as to provide planned and
,.., orderly use of land and protection of the environment in a manner consistent with
constitutional rights.
29-20-108. Compliance with other requirements. Except as provided in section 29-20-105
(2)[mtergovernmental agreements], where other procedural or substantive
requirements for the planning for or regulation of the use of land are provided by
law,such requirements shall control.
There is no Colorado statutory scheme contrary to the County's objective of regulating land
based on its impact on the community, or planning for and regulating the phased development of land
through a development exaction program for health and human services facilities. Consequently, it
appears the County has 1034 Powers to adopt an exaction program for health and human services
facilities.
2) Other State Law Requirements
As is discussed in Section III. B. 2), even though there are no cases in Colorado addressing
challenges to health and human services exaction programs (or for that matter, any cases nationally),
there are several cases holding that development exactions for capital infrastructure like parks, roads,
potable water, and wastewater facilities must generally establish a rational nexus between the impacts of
(or potential harm caused by) the development and the exaction. Cases in nearby states have also
embraced the rational nexus requirement for these types of capital facilities.
In addition, and relevant to a health and human services exaction for facilities and services,there
,•. is at least one case in which a court upheld a development fee for capital facilities and relatel operational
expmses. In Russ Building Paz7nership v. City and C vvy of San Francisco,234 Cal.Rptr. 1 (Cal App. 1987), cent
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Legal Parameters
dmiad 484 U.S. 909 (1987), a California appellate court upheld the San Francisco Transit Impact
Development Fee Ordinance against substantive due process and equal protection challenges, and claims
that the fees were unreasonable and constituted a tax pursuant to the California constitution. The fee was
exacted against new office development in downtown San Francisco. It was designed to provide revenue
for transit facilities and services for the San Francisco Municipal Railway system (Muni) to offset the
anticipated increased costs to accommodate new riders during the peak commute hours that would be
generated by the construction of new office space. The court recognized in the decision, the transit
facilities and services on which the fee was based included among other things, ... "the costs for
maintaining, repairing and purchasing new vehicles, and the costs of salaries and insurance... " (234 Cal
Rptr. at 12).
Finally, as is outlined in more detail in the legal discussion on affordable housing (Section H.
B.2)), although the Colorado General Assembly attempted in 1999 to codify some of the state's nexus
requirements in CRS 29-20-203, that statute does not impose new requirements on legislatively
formulated (non-discretionary) land exactions or fees-in-licu. Consequently, if a land exaction and/or
fee-in-lieu system are crafted as "legislatively formulated assessment[s], fee[s], or charge[s] imposed on a
broad category of property owners" then the "roughly proportional" standard of CRS 29-20-203(1) does
not apply. Similarly,if they are not discretionary-i.e. they are required to be imposed pursuant to a pre-
established formula - then subsection (2) does not apply. Because any proposed health and human
services development exaction program will be both "legislatively formulated" and "non-
discretionary"/formula-based,the "roughly proportional" standards of CRS 29-20-203 do not apply.
Nevertheless, given the case law of Colorado and nearby states, development exaction regulations in
Colorado for capital infrastructure for public facilities like parks, roads potable water, wastewater, and capital
health and human service facilities should comply with the rational nexus standard (A specific discussion of
the requirements of the rational nexus standard can be found in Section III. B.2)).
3) Federal Constitutional Requirements
As is discussed in greater detail in Section III. B. 3), recent case decisions under the fifth and
fourteenth amendments to the U.S.Constitution have imposed limits on the types and amounts of land
exactions permitted by local governments. Dblan v. City of Tigard, 512 U.S. 374 (1994); Erlicb, 911 P.2d
429 (Cal. 1995), amL denied, 136 L.Ed. 2d 218, 117 S. Ct. 299 (1996); ParkDT Association of Georgia, Inc v.
City of Atlanta, 515 U.S. 1116 (1995); Cla/on Pia Corporation v.Peters, 70 F.3d 1566 (10th Cir. 1995).
In Dolan v. City of Tigard, 512 U.S. 374, the seminal case on the issue, the City of Tigard, as a
condition on a permit for expanding an existing business attempted to require a dedication of property
for a bike path to alleviate traffic congestion and a greenway to help in flood control. The United States
Supreme Court disallowed the exaction as a regulatory taking of property without just compensation.
The court adopted a standard of review which required any discretionary (adjudicative) land exaction
imposed as a condition of development approval to be "roughly proportional" to its impact on the
community. The court also equated the rough proportionality test with the rational nexus standard used
in state courts' consideration of development exactions or impact fee programs. Several other Supreme
Court decisions, and a Tenth Circuit Court of Appeals decision support the court's opinion in Dolan,512
U.S. 374, that the rough proportionality standard only applies to discretionary (versus non-discretionary,
formula-based fee programs that are legislatively determined). Ebrlici, 512 U.S. 1231 (1994). 911 P.2d
429;Parking Association of Gangs,Inc v. City of Atlanta,515 U.S. 1116 (1995); Cla*Prtuation CDrporation v.
. Petera,70 F.3d 1566 (loth Cir. 1995).
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Data
.�.. However, it must be noted that even if the "rough proportionality" standard does not apply to
formula-based exactions and fees, Colorado case law still requires a non-discretionary formula-based fee
program for capital infrastructure for health and human service facilities to demonstrate a rational nexus
between the impacts of development and the exactions.
4) Conclusion
In sum, the County has 1034 Powers to adopt a health and human services development
exaction program for the purpose of regulating land based on its impact on the community, or planning
for and regulating the phased development of land for similar purposes. The development exaction
should be imposed on new residential and non-residential development. Even though there are no cases
in which courts have addressed challenges to a health and human services development exaction
program, there is clear legal precedent for the use of development exactions to provide capital
infrastructure consistent with rational nexus principles. There is not as clear legal support for a health
and human services exaction program based on capital and operating expenses, though at least one case
supports the adoption of such a program for transit facilities and services. It appears that either type of
health and human services development exaction program can be designed to comply with the rational
nexus standard.
C. Data
The data available for the Health&Human services analysis are:
1. 1985-1999 population—resident&employee (but not tourist);
2. Some historic client data but not continuous;
3. Capital facilities
a. Health&Human Services Building with land and capital costs;
b. Senior Services space in conjunction with Hospital and equipment costs;
c. Space in Basalt,lease agreement and equipment costs;
d. Space in County Courthouse
4. County budgets showing HHS expenditures;
5. HHS revenues by source;
6. HI-IS mission,trends, and goals
The data that is still needed is:
1. HSS clients, by type;
a. Resident— full time;
b. Resident—part time;
�.�.., c. Employee;
d. Tourist
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Part IV/Health and Human Services
Program Options and Recommendation
2. A complete (each year) inventory of clients at least since 1990 by general type;
3. A complete inventory of HHS capital facilities and cost of those facilities to the extent that 1
and 2 above is incomplete;
4. A more detailed breakdown of County revenue for HHS;
5. HHS internal budgets; and
6. A more detailed breakdown of the sources of HHS funding, by entity, 1995-1999
D. Program Options and Recommendation
Based upon the analysis conducted in this Policy Memorandum, it appears that the County has
three program options for development of a health and human services development exaction program:
• Prepare a health and human services development exaction program for capital infrastructure;
• Prepare a health and human services development exaction program for capital and operating
expenses; or
• Prepare a Public Buildings development exaction program that exacts fees for capital for public
administration buildings, health and human services infrastructure, law enforcement capital facilities
and fire/ems facilities.
Even though there appears to be indirect authority for the County to adopt any of these three options,
each alternative has different legal and policy implications.
Even though there are no cases in which courts have addressed challenges to a health and
human services development exaction program,there is clear legal precedent for the use of development
exactions to provide capital infrastructure consistent with rational nexus principles. Consequently, it
appears the County is on sound legal footing if it develops a health and human services exaction
program for capital infrastructure. However, as a matter of policy, because of the limited capital
infrastructure needs the County has to provide health and human services, the fee amount would
probably be quite low.
There is not as definitive legal support for a health and human services exaction program based
on capital and operating expenses, even though at least one case supports the adoption of such a
program for transit facilities and services. However, as a matter of policy, the fee amounts generated
from such a program would be more than the first option since the majority of the costs for health and
human services are for operating expenses.
As with the first option, the County is on sound legal footing if it develops a Public Buildings
exaction program for public administration, health and human services, law enforcement and fire/ems
capital facilities. It, however, is a much broader-based exaction initiative since it includes most Public
Buildings that the County needs to provide governmental services. Even though an analysis of these
other capital facility systems (public administration, health and human services, law enforcement and
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Atkin Coto ry,Colorado
Part IV/Health and Human Services
Method
,010- fire/ems) is not undertaken in this Policy Memorandum, common sense dictates that this program
would result in higher fee levels than the first option.
It is recommended that the County consider adopting either the second or third option. There is
much stronger legal support for the third option.
E. Method
If the County selects either the first or second option, the following method for developing the
exaction amount is suggested. If the County selects the third option, additional methods for
development of public administration, law enforcement and fire/EMS exactions would need to be
developed.
As new growth and development continues in Pitkin County, forecasts indicate there will be
increased demand from residents (defined as those who live in the County), resident employees (those
who work in the County but live elsewhere), and the visitor population for the provision of health and
human services. The purpose of a development exaction/impact fee is to determine the costs the County
is expected to incur to provide these services for this population, and proportionately allocate these
costs.
The general future demand for the County's health and human services will be estimated, based
on a Level of Service ('LOS") that assumes that the County wants to continue providing the same
quality of services (an "existing conditions" LOS)that it does in 2000.
The components proposed to be included in the "existing conditions" LOS include capital
facilities (building space, land and equipment) and possibly certain operating expenses, depending upon
availability and adequacy of County data,and other relevant legal and policy issues.
The method to be employed will begin with the calculation of the County's investment in health
and human services capital facilities and then calculate the cost per client. If operational costs are
included, the next step will be to calculate the operational cost per client. The County's net cost per
client will result from subtracting anticipated revenues from capital and operational costs per client.
The demand factor will be calculated in three groups: residents (fulltime and part time) seeking
health and human services; resident employees (persons working in the County but not living in the
County) seeking health and human services; and tourists seeking health and human services.
Client generation rates may be calculated by dividing the number of clients, by type, by the land
use units of that type.
The general formula for this proposed method is outlined below.
Capital Cost Per Client- Total Capital Costs/Clients
Operational Cost Per Client- Total Operational Costs/Clients
County Capital Cost Per Client -Capital Cost Per Client*%County Contribution To Capital
�,.., County operational Cost Per Client a Operational Cost Per Client
+ %County Contribution To Operating
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Part IV/Health and Human Services
Method
Residential Client Generation —Resident Clients/Residential Units
Business Client Generation—Employee Clients/Business/Commercial
Space
Tourist Client Generation e Tourist Clients/Tourist Units
HHS Cost Per Residence—Residential Client Generation*(County
Capital Cost Per Client +County Operational Cost Per Client)
HHS Cost Per Commercial Space — Business Client Generation
(County Capital Cost Per Client+County Operational
Cost Per Client)
HHS Cost Per Tourist Unit — Tourist Client Generation*(County
Capital Cost Per Client+County Operational Cost Per Client)
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Pitkin County,Colorado
DRAFT-BIBLIOGRAPHY
Pitkin County"Fair Share"Requirements for Affordable Housing,
Open Space/Agricultural Lands and Health&Human Services
I
Red-type: Indicates in the process of being produced and will be provided soon(also includes
responsible person)
Black-type: Indicates provided and"PC-fdatel indicates the date-.provided
A. POPULATION&HOUSING
1. Gabe Preston,Residential Construction Workforce Dynamics Report(PC-1/20/00)
2. Gabe Preston,Post-Construction Residential Sector Employment Generation Report(PC-1/20/00)
3. Memo re: "Follow-Up to Gabe Preston's Reports ..."(PC-1/20/00)
4. Andrew Klotz,Impact Fees:Initial Feasibility Report(PC-1/20/00)
5. AVIA Housing Study(PC-1/20/00)
6. Healthy Mountain Communities Commuter Study(PC-1/20/00)
7. Gabe Preston,Residential Use Patterns and Workforce Dynamics(PC-2/18/00)
8. Andrew Klotz,Aspen Metro Area Community Profile(PC-2/18/00,available on the web:
http://www.aspengov.com/CDComPro)
9. Assessor Dwelling Unit Counts by Type(Pitco to provide/Gabe Preston) ZIP
10. BBC Materials Prepared for AACP(PC 2/29/00)
11. Renter Occupied Dwelling Units by Type(may not be available)(Pitco to provide/Gabe Preston)
ZIP
12. Assessor Data on Value of Dwelling Units With Fields(Pitco to provide/Gabe Preston)ZIP
B. OPEN SPACE/AGRICULTURAL LANDS
1. BOCC Ord.#93-25 (Enacting Open Space and Trails Regulations)(PC-2/16/00)
2. Pitkin County Open Space and Trails Board Reso.#96-01 (Amending Open Space Acquisition
and Management Policies)(PC-2/16/00)
3. Pitkin County OSTB Reso.#98-1 (Adopting a New Accounting Policy for Program Operating
Costs)(PC-2/16/00)
4. BOCC Reso. #99-112(Declaring and Designating Certain Open Space and Trails Properties as
Pitkin County open Space and Trails Properties)(PC-2/16/00)
5. Summary Sheet on Pitkin County Open Space and Trails Program(PC-2/16/00)
6. Memo to Snowmass Town Council re:Pitkin County Open Space Reauthorization(PC-2/16/00)
7. Stewardship Trust Nomination(Contains Helpful Background Information on Open Space and
Agricultural Policies in the County)(PC-2/16/00)
8. GIS Map(showing land assessed agricultural in Pitkin County)(PC-2/18/00)
9. Agricultural Committee Map(showing all 70 acre parcels in Pitco considered eligible for potential
agricultural overlay zoning)(PC-2/18/00)
10. GIS map of open space lands(PC-2/18/00)
11. AACP Greenfrastructure Plan(PC-2/18/00-provided directly by Rock Creek Studios)
12. Acquisition Prices for Open Space(PC-emailed 2/27/00)
13. Actual Expenditures and Source/Open Space 5-10 Years(PC-emailed 2/27/00)
14. Gabe Preston,Study of Buildout(PC-2/28/00)
15. GIS Map of Agricultural Land,Open Space&Municipalities(PC-2/18/00)
16. Open Space Fund Balance Analysis(10 Year History)(PC-2/23/00)
17. Pitkin County GIS Map of Agricultural Assessed Parcels(PC 2/29/00)
C. HEALTH&HUMAN SERVICES
1. "Exposure Category Report"(Shows replacement cost for health services building,0405 Castle
Creek Road)(PC-2/16/00)
2. Mission Statement(PC-2/18/00)
3. Health&Human Services Budget(PC-1/20/00)
4. Information from Project Management re:beds and square footage(Pitco to provide)
5. Historical Count of Client Contacts(PC-2/23/00)
Last Revised by Marcella Larsen Chilson Page 1 03/03/00
DRAFT-BIBLIOGRAPHY
Pitkin County"Fair Share"Requirements for Affordable Housing,
Open Space/Agricultural Lands and Health&Human Services
6. Historical Unit of Service/Client Contact(PC-2/23/00)
7. Pitkin County Health&Human Services 2000 Trends and Goals(PC-2/18/00)
8. Criteria for Funding(PC-2/18/00)
9. 1999 Pitkin County Health&Human Services Agencies Funding Sources(PC-2/18/00)
10. Aspen Valley Hospital District Sublease for Childcare Space in the Michael S. Schultz Building
(PC-2/23/00)
11. Health&Human Services Budget Breakdown(including historical budget information to show
increases in certain services)(Pitco to provide)
12. 10 Year Expenditures by Pitkin County(see pages 98-99 of 1998 Comprehensive Annual
Financial Report,Bib. at E.3)
13. County's OMB A-87 Cost Allocation Plan(PC-2/23/00)
14. Leases for Leased Space at Senior Services and Basalt Building
Basalt lease faxed(PC 2/24/00)
IGA for Sr. Svcs(PC 2/24/00)
15. Fixed assets for senior services,social services and health&human services(PC-2/24/00)
D. AFFORDABLE HOUSING
1. Aspen/Pitkin County Housing Authority Guidelines(PC-1/20/00)
2. Aspen/Pitkin County Housing Authority Work Plan(Capital Facilities Plan)(PC-1/20/00)
3. Long-Range Housing Plan(shows City of Aspen projects)(PC-1/20/00)
4. City of Aspen/Pitkin County Housing Programs(PC-2/17/00)
5. Aspen/Pitkin County Housing Authority Sales Activity 1991-1999(PC-2/17/00)
6. Aspen/Pitkin County Housing Authority List of Referrals for Affordable Housing-EDUs,ADUs
and CDUs only(some unbuilt)(PC-2/17/00)
7. Housing Projects Summary as of 1/31/2000(Funded by City real estate transfer tax and city sales
tax)(PC-2/17/00)
8. Roaring Fork Valley Housing Study 1999; Selected Preliminary Findings-November 16, 1999
(summary of respondents who work in Pitco); Selected Preliminary Findings-October 16, 1999
(summary of all Respondents,Pitkin Eagle,Basalt,Garfield)(PC-2/17/00)
9. Healthy Mountain Communities Regional Transportation Partnership Project-Local&Regional
Study of Travel Patterns (PC-2/17/00)
10. Town of Snowmass Village 1999 Employer Survey(PC-2/17/00)
11. Housing Authority Budgets(since inception)(PC-2/23/00)
12. MLS Data(Pitco to provide/Gabe Preston)
13. Aspen Appraisal Group 1988, 1990, 1991, 1992, 1994, 1995 and 1997 Market Reports(PC
-2/24/00)
E. FISCAL DATA
1. 2000 Pitkin County Budget,Including Health&Human Services and Housing Authority(PC-
1/20/00)
2. General Fund Expenditures(Summary of"Where Does it Go")(PC-2/16/00)
3. 1998,Comprehensive Annual Financial Report(PC-2/16/00)
4. List of Data and Informational Needs-Response from Tom Oken(PC-2/23/00)
5. 1995-1998 Actuals(see 1998 Comprehensive Annual Financial Report,Bib.E.3
6. Abstract of Assessments and Levies 1993-1999(PC-2/23/00)
7. Schedule of Federal Financial Awards(PC-2/23/00)
8. Formula for Market Value to Assessed Value(see Bib.E.5,footnotes explaining formulas and
Bib.E3 at pages 103 and 11 with footnotes explaining formulas)
9. Agricultural Assessment Formula(Pitco to provide/Gabe Preston)ZIP
10. Pitkin County OMB A-87 Cost Allocation Plan Fiscal Year 1998(PC-2/23/00)
Last Revised by Marcella Larsen Chilson Page 2 03/03/00
t
DRAFT-BIBLIOGRAPHY
Pitkin County "Fair Share"Requirements for Affordable Housing,
Open Space/Agricultural Lands and Health&Human Services
I
F. OTHER
1. Moratorium
2. Section 3-130 of the Pitkin County Land Use Code,Exactions(Current exactions in Pitkin
County)
3. 2000 Aspen Area Community Plan("AACP")(Comprehensive plan for City of Aspen and a
Portion of Unincorporated Pitkin County,Includes a UGB Area—Marked Draft,But Adopted by
Pitkin County)(PC-2/16/00)
4. 2000 AACP Action Plan(Adopted by Pitkin County)(PC-2/16/00)
5. Existing Conditions Report— 1998 AACP Update(Includes City of Aspen and a Portion of
Unincorporated Pitkin County in UGB Area—Some Additional County Numbers)(PC-2/16/00)
6. W/J Ranch Fiscal Impact Analysis(Recent Fiscal Impact Analysis of Affordable Housing Project
in Pitkin County—Denied by the County)(PC-2/16/00)
7. Pitkin County Home Rule Charter(PC-2/16/00)
8. BOCC Reso. #89-88(Approving IGA With the City of Aspen Establishing Aspen/Pitkin County
Housing Authority)(PC-2/16/00)
9. BOCC Reso.#99-179(Second Amended and Restated Intergovernmental Agreement
Aspen/Pitkin County Housing Authority)(PC-2/16/00)
10. Down Valley Comprehensive Plan("DVCP")(Note: does not include all of unincorporated Pitkin
County)(PC-2/16/00)
11. PZ 98-03 Citizen Housing Plan(Note: Amended the DVCP)(PC-2/16/00)
Last Revised by Marcella Larsen Chilson Page 3 03/03/00