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HomeMy WebLinkAboutBOCC.packet. 05142014 LUC Amendment Open Space Master PlanAGENDA ITEM SUMMARY MEETING DATE: May 14, 2014 AGENDA ITEM TITLE: AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, 5(AUTHORIZING THE OPEN SPACE MASTER PLAN AUTHORITY STAFF RESPONSIBLE: Dale Will SUMMARY OF ISSUE: Should the BOCC reauthorize the Open Space Master Plan Authority? BACKGROUND: In 2007, the BOCC created the Open Space Master Plan regulation which allowed the Open Space and Trails Department (OST) and the Community Development Department to join efforts. This law reflected our experience that the most successful land conservation incentives are 1) Open Space Fund investments, and 2) vesting of reserved development rights. Prior large scale conservation easement projects therefore suffered from a bifurcation of process with contingent contracts, added landowner stresses, etc. Commissioner Child has confirmed this experience with his family’s process on Capital Creek Ranch. We solved this problem in 2007 with an integrated process, and thereby conserved the Grange Ranch and Cold Mountain Ranch (each of which has an approved Open Space Master Plan and matching conservation easement). Because of the novel nature of combining land use approvals and an open space purchase contract, the BOCC elected to treat it as a “pilot” program with a sunset after two years. With renewed inquiries from interested landowners, both Departments are once again seeing the potential use of a “re-crafted” Open Space Master Plan regulation. This concept was discussed at the prior two joint meetings of the BOCC and Open Space Boards, and has been approved by the Planning and Zoning Commission. Since introducing this proposed reauthorization in December to the OSTB, P&Z, and BOCC, most of the discussion has centered on the question of whether the County should be able to consider a house in excess of 5750 sq. ft. Staff believe that this flexibility is needed in the area immediately surrounding Aspen due to market forces and related landowner expectations. Both the P&Z and OSTB have agreed that this flexibility is justified above Brush Creek within the planning area depicted on the attached map. In sum, Staff propose house size flexibility in this area only because it is here that the larger houses have become typical, and the resulting value is expected by landowners. The flexibility to negotiate around this expectation is likely critical to securing the public benefits we otherwise seek, within the capacity of available open space funds. At the BOCC meeting on April 23, significant discussion focused on this element of the proposal. Several of the Commissioners indicated their concerns here would be adequately addressed by adding an absolute ceiling at 8750 gross floor area, and requiring that this additional square footage should result in the absorption of an existing TDR. These two changes are now incorporated in the proposed Code, which the staff now recommends be adopted. The most notable other adjustments from 2007 are that TDRs are eliminated from this program and the minimum parcel size is decreased to 70 acres. The elimination of new, saleable TDRs reflects a trend to emphasize other tools for securing land preservation. The decreased acreage requirement is intended to allow the County to approach a greater spectrum of properties under this authority. We now propose to re-adopt it without a sunset. At first and second readings, several questions were asked which are addressed in turn, below. Regarding, TDRs, the proposed changes would eliminate the granting of our saleable TDR to the landowners using an Open Space Master Plan. No new TDRs would enter the market as a result of the program. In contrast to the 2007 law, and in contrast to other agreements such as with the Harvey and Capital Creek Ranch Conservation Easements, the elimination of TDRs as a form of landowner compensation will increase the burden on the open space fund. Would the Open Space Master Plan be available in the entire County? Yes. All parcels of 70 acres or more would be eligible for a County initiated Open Space Master Plan. House size would be limited to 5750 outside the defined area around Aspen. Inside that area, house size would be limited by zoning, neighborhood master plans, and by the individual negotiation of the plan itself. Why limit the increased house size flexibility to the Aspen area? The area was chosen based on the concurrency of neighborhood character and market expectations regarding maintenance of property value. Randy Gold has analyzed where it is that the large houses are the dominant market factor, and the area lies within our proposal. Based on Randy’s recent lecture at the Aspen Business luncheon, there are nearly 40 large home listings above $10million within the Aspen area. This market creates landowner expectations within the area that make it very difficult for the Open Space Program to negotiate affordable deals without the discussion on house size. The elimination of TDRs as an additional incentive here adds to the financial challenge for open space. In contrast, outside the Aspen area, expectations regarding house sizes are much less formidable and we have a track record of getting affordable conservation agreements without large home development in these more remote regions. In sum, the neighborhoods where we propose this flexibility have already accepted this style of development, but we do not want to drive a similar change in areas where reasonable expectations can be otherwise met. Would landowners still be required to purchase TDRs for additional square footage? Based on the BOCC Direction on April 23, the proposed code has been changed to require that a TDR would be required to increase square footage, to a maximum of 8750 gross floor area. Shouldn’t the Special Review procedures, including a Hearing Officer Determination, be required for additional square footage? While some TDR receiver sites do require a Special Review by a Hearing Officer, the County has four other existing avenues where houses above 5750 ft. sq. are allowed without Special Review. Special Review approval is not required to utilize TDRs for additional floor area up to the final maximum size on lots in certain County approved subdivisions or on lots/parcels within the Aspen Urban Growth Boundary, or the 500 acre lot exemption, the Conservation Development – Residential Development Option, and the Low Impact Residential approach for lots of 80 acres in Owl and Brush Creeks. Each of these is highlighted in the Appendix below. Please note that the latter three of these existing code sections use additional floor area as an incentive to reduce density without Special Review, which is exactly what is also intended in the Open Space Master Plan. What public process will be utilized to ensure public involvement? Once a landowner has entered into a formal agreement regarding the approval of an Open Space Master Plan for their property, the normal Community Development referral process can be used to ensure notice and an opportunity to comment by the public, prior to the approval by the Board of County Commissioners. Do the Commissioners have a mechanism to participate in the crafting of the plans? Yes. The County Attorney has confirmed that pre-decisional consultation with Open Space and Com. Dev. staff will occur in the same manner as currently utilized for the negotiation of open space contracts and other forms of negotiated development agreements. Give a hypothetical of how this provision might apply: Let’s assume there is an 80 acre parcel in the AFR 10 zone and is subject to a neighborhood master plan that allows homes up to the County maximum of 15,000 ft. sq., and that it is also within the area where additional square footage could be allowed under the Open Space Master Plan provision. Assume the parcel has scenic values as viewed from existing roads/trails, habitat value, potential recreational access to streams and adjacent federal land, and historic water rights. The maximum subdivision build-out could be 8 parcels each with a 15,000 ft. sq., home. The property could be divided into two pieces without subdivision approval. Following an inventory of the property, and following pre-decisional deliberations by the BOCC and OSTB, the County determines the conservation priorities are to seek to limit development to a single house, sterilize development from the most sensitive scenic and habitat areas, acquire a primitive access to the creek and USFS backdrop, and restrict the severance of water rights from agricultural or environmental uses within this watershed. The landowner is reluctant but willing to settle for a single house, provided that it is vested at 8250 ft. sq., and the County is willing to pay $XXXX for a conservation easement that accomplishes the above objectives. Staff and the OSTB would recommend to the BOCC that the single house at 8250 be approved with long term or permanent vesting while requiring TDR purchase, an $XXXX in Open Space funding be authorized, in exchange for a permanent conservation easement meeting our multiple objectives. This package would be referred back out for public comment as per Com. Dev. referral processes. Finally, the matter would be presented to the BOCC for formal approval at two consecutive meetings. What are the existing options for TDRs, conservation incentives, and large homes? See Appendix below. PRIMARY DISCUSSION ITEMS: Primary elements of the 2007 code section:  A “one stop” program combining homesite approvals and open space funding for parcels over 160 acres.  Must be initiated by the County.  County must acquire a conservation easement or outright ownership of land.  Density may not exceed applicable zoning.  Free market residential square footage max 5750 square feet; overall residential size limitation of 6750 square feet.  One TDR per 70 acres permissible.  Extended vested rights permissible.  Requires approval of Community Development, Open Space Board, and BOCC.  Landowner pays Community Development costs.  Allowed flexibility regarding slope and geologic hazards. Primary changes of a revised code section (attached):  Increase maximum allowable gross floor area above Brush Creek in the Roaring Fork Watershed to what is otherwise allowable under the applicable zoning and master plans, subject to site specific findings regarding scenic and other impacts.  Eliminate eligibility for TDRs, but require absorption of a TDR if additional square footage is allowed.  Reduce eligible acreage to 70 acres.  Provides that OST covers Community Development costs prior to written contract with landowner. LINK TO STRATEGIC PLAN: This authority would promote the protection of open space and trails resources while also increasing the efficiency or our operations. KEY DISCUSSION ITEMS (ALTERNATIVES): The alternative would be to continue to use available authority for open space and community development projects. BUDGETARY IMPACT: It is likely that this authority will reduce the cost of future open space acquisitions through synergy with private sector interest in land use entitlements. RECOMMENDED BOCC ACTION: Approve reauthorization of Open Space Master Plan Authority on first reading and set for public hearing on April 23, 2014. ATTACHMENTS: Overview of LU Code Options, OSMP map, Ordinance and Proposed Code. SUMMARY OF TDR PROGRAM TDR Sending Sites – How TDRs are Created Number of TDRs that can be Obtained from Sending Site Rural/Remote Zone District 1 TDR/35 acres (or for legally created parcel > 1 < 35 acres). < 1 acre may qualify for 1 TDR, if certain criteria are met. TR-1 Zone District 1 TDR/35 acres (or for legally created parcel > 1 < 35 acres). < 1 acre may qualify for 1 TDR, if certain criteria are met. TR-2 Zone District 1 TDR/10 acres (or for legally created parcel > 1 < 10 acres). < 1 acre may qualify for 1 TDR, if certain criteria are met. “Constrained” Sites BOCC discretion “Visually Constrained” Sites 1 TDR Conservation Development PUD (CD- PUD) Zone District 1 TDR/20 acres (excluding the 160 acres designated for development) Limited Development Conservation Parcel 1 TDR/20 acres on parcels < 640 acres (excluding 35 acres for each legal dwelling). 1 TDR/35 acres on parcels ≥ 640 acres (excluding 70 acres for each legal dwelling). Properties designated to the Pitkin County Historic Register BOCC discretion Takings Remediation BOCC discretion Receiver Sites – How TDRs are Used To Obtain a GMQS Exemption for a New Development Right  TDRs may only be used to create a new development right for a single family residence on a lot/parcel within the Aspen Urban Growth Boundary, subject to a One-Step Special Review by the BOCC.  Each TDR for a new development right provides 2,500 square feet of floor area.  The number of TDRs required for exemption from the Growth Management Quota System (GMQS) depends upon the size of the residence proposed.  TDRs from any Sending Site may be used on any Receiver Site approved for a new development right. To Obtain a GMQS Exemption for Additional Floor Area  Special Review approval is not required to utilize TDRs for additional floor area up to the final maximum size on lots in certain County approved subdivisions or on lots/parcels within the Aspen Urban Growth Boundary.  A One-Step Special Review by the Hearing Officer is required to utilize TDRs for additional floor area up to the final maximum size on all other lots/parcels within eligible Zone Districts.*  Each TDR used for additional floor area provides 2,500 square feet of floor area, except within the TR-2 Zone District, where one TDR provides 1,000 square feet of floor area.  The number of TDRs required for a GMQS exemption depends upon the size of the residence desired.  TDRs from any Sending Site may be used on any Receiver Site as a GMQS exemption for additional floor area. * Properties within the following zone districts may not be Receiver Sites for TDRs: R/R, RS-160, TR-1, RS-G, MHP, AH, AH-PUD, B-1, B-2, VC, P-I, T, SKI-REC, VR, I, PUD, AC-REC-2, and FPV-O. CONSERVATION DEVELOPMENT OPTIONS IN CURRENT LAND USE CODE • Conservation Development PUD (CD-PUD) Zone District o 160+ acres o Conservation Easement or Covenant o Residential Development Option  <600 acres: 2 single family dwelling units up to 15,000 sf combined (unless Caucus limits to less); 2 CDUs – each at 1,000 sf; 2,500 sf accessory structures.  600+ acres: 3 single family dwelling units up to 15,000 sf combined (unless Caucus limits to less); 2 CDUs – each at 1,000 sf; 2,500 sf accessory structures.  All exempt from Growth Management o Commercial Agricultural Development Option  <600 acres: 2 single family dwelling units up to 5,750 sf combined (unless Caucus limits to less); 2 CDUs – each at 1,000 sf; unlimited barn floor area.  600+ acres: 3 single family dwelling units up to 11,500 sf combined (unless Caucus limits to less); 2 CDUs – each at 1,000 sf; unlimited barn floor area.  Floor area for approved special review uses based on parcel size.  All exempt from Growth Management o 1 TDR/20 acres (excluding the 160 acres designated for development) • Limited Development Conservation Parcels o 160+ acres o May retain existing structures and expand up to 5,750 sf of floor area. o May develop one CDU of up to 1,000 sf (does not count as floor area). o Unlimited agricultural buildings. o 1 TDR/20 acres on parcels < 640 acres (excluding 35 acres for each legal dwelling); 1 TDR/35 acres on parcels ≥ 640 acres (excluding 70 acres for each legal dwelling). • Growth Management Exemption for Large Lots (500+ acre Parcels) o One single family dwelling unit of up to 15,000 sf exempt from Growth Management on any parcel of 500 acres or more (except if a codified Caucus floor area limitation exists – Snowmass/Capitol, Emma, Fryingpan – then that limit applies) o Deed restriction against further subdivision • Low Impact Residential – 35 Acre (LIR-35) Zone District Cluster Option o Brush Creek/Owl Creek Area only o 1 unit/80 acres (rather than 1/35) o 8,250 sf exempt from GM o Can develop up to 15,000 sf through use of TDRs or GM competition • Transitional Residential – 2 (TR-2) Zone District Cluster Option o Boundary of Aspen UGB only o 1 unit/50 acres (rather than 1/35) o 3,500 sf exempt from GM o No additional floor area with use of TDRs or GM competition Crystal River Fryingpan Independence Maroon/Castle Snowmass/Capitol Woody Creek Emma/Basalt UGBOwl Creek SnowmassCanyon Brush Creek Defined Planning Areas City/Town Boundaries Open Space Master Plan Area Open Space Master Plan Area Map 0 5 10 15 202.5 Miles I This map/drawing is a graphicalrepresentation of the features depicted and is not a legal representation.Accuracy is not guaranteed.XXXXXXXXXXXXXXXXXXX Area where house size may exceed 5750 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY COLORADO, ADOPTING AN AMENDMENT TO THE PITKIN COUNTY LAND USE CODE SECTION 2-40, ADDING A PROVISION FOR OPEN SPACE MASTER PLAN REVIEW AND PROCESSES, SECTION 2-40-170 ORDINANCE #_____-2014 RECITALS WHEREAS, the Board of County Commissioners of Pitkin County, Colorado makes the following findings: 1. The preservation of open space is one of the highest priorities for Pitkin County. 2. The rise in property values requires the coordinated efforts of the Pitkin County Open Space and Trails program and the regulatory review of the Pitkin County Land Use Code to adequately preserve open space. 3. This code amendment allows for integrated review of the acquisition of property interests with development approvals for retained uses of the property. 4. The BOCC finds that this code amendment is consistent with the policies and regulations of the Land Use Code. 5. This code amendment was first approved and adopted by Ordinance No. 017-2007 on July 25, 2007, and included a sunset provision two years from the date of adoption. By approval and adoption of this ordinance, the proposed code amendment shall become a permanent provision of the Pitkin County Land Use Code. 6. The Pitkin County Planning and Zoning Commission considered the current proposed code amendment at a meeting held on March 4, 2014, at which time a unanimous recommendation of approval was sent to the BOCC. 7. The Open Space and Trails Board considered the proposed code amendment on March 6, 2014 and unanimously supports the proposed authority. 8. The BOCC finds that adoption of this ordinance is necessary for the immediate preservation of the public health, safety and welfare of the citizens of Pitkin County and therefore declares this ordinance and legislation to be effective immediately pursuant to C.R.S. § 30-15405. NOW THEREFORE, be it ordained by the Board of County Commissioners of Pitkin County, Colorado, that section 2-40 of the Pitkin County Land Use Code is hereby amended to add Section 2-40-170: Open Space Preservation Master Plan as set forth in ‘Exhibit A’ hereto. Ordinance ____-2014 INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 9th DAY OF APRIL, 2014. NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE PUBLISHED IN THE ASPEN TIMES WEEKLY ON ____________, 2014. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE ( www.aspenpitkin.com ) ON THE ______ DAY OF_______________2014. ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE ______DAY OF _______________ 2014. PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN TIMES WEEKLY ON THE ______DAY OF_______________2014. POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE POSTED ON THE OFFICIAL PITKIN COUNTY WEBSITE ( www.aspenpitkin.com ) ON THE ____ DAY OF ___________2014. ATTEST: BOARD OF COUNTY COMMISSIONERS By: _________________________ By: _____________________________ Jeanette Jones Robert A. Ittner, Jr., Chair Deputy County Clerk Date: ______________ APPROVED AS TO FORM: MANAGER APPROVAL ___________________________ _________________________________ John Ely, County Attorney Jon Peacock, County Manager ___________________________ Dale Will, Director Open Space and Trails Ordinance ____-2014 Exhibit A Open Space Master Plan 2-40-170: OPEN SPACE PRESERVATION MASTER PLAN (a) General The Open Space Master Plan development approval process is available for any property in any zone district except as limited in Section (b). The intent of this master plan process is to be able to consider development approvals through a modified one -step ordinance process in conjunction with the acquisition of a fee interest or conservation easement by Pitkin County with Open Space and Trails restricted funds. Development approvals reviewed through this process are granted by the Board of County Commissioners only upon affirmative recommendation of the Open Space and Trails Board and Community Development Department. (b) Standards for Open Space Preservation Master Plans. (1) Master plan and development approval under this section are available only to properties which reflect the preservation and conservation values identified by the Open Space and Trails Board as stated in their operating policies. This approval process may consider property within incorporated municipalities or outside the boundaries of Pitkin County but development approvals may only be granted for locations in unincorporated Pitkin County. (2) This master plan process is only available on applications initiated by Pitkin County with the consent of the property owner. This master plan process is not available for private party initiated applications. This process may be employed only on parcels of 70 acres or larger. . (3) This master plan process is only available for property which Pitkin County is acquiring an interest with Open Space and Trails restricted funds. This acquired interest may be in the form of a fee simple interest or a conservation easement or trail easement. (4) Development approvals granted pursuant to this master plan process may not exceed the density and use limitations of the underlying zoning or the Neighborhood Master Plan for the reviewed property. Siting criteria relating to geologic hazards and steep and potentially unstable slopes may be varied if appropriate. All other siting considerations in Chapter 7 shall apply. Gross floor area shall not exceed 5750 sq. ft. per unit except in exceptional circumstances within the geographic area above the confluence of the Roaring Fork River and Brush Creek, including the East of Aspen, Castle/Maroon, Brush Creek and Owl Creek Planning Areas, as otherwise depicted on the attached map. In exceptional circumstances the Gross Floor Area may be increased to 8250 sq. ft. provided that a pre-existing TDR will be extinguished as a result. An exceptional circumstance may be found if all of the following conditions are met: a. the subject property is outside the Rural and Remote Zone and within the above described area, and b. the approval of a residential unit in excess of 5750 ft. sq. gross floor area would not i. create significant visual impacts from public roads, public trails, or nearby public lands, or ii. would not significantly degrade surrounding rural character, and iii. would not create significant light, air and water pollution, or traffic impacts. (5) This master plan process may extend or establish unique vested rights. (6) Master plan and development approvals granted pursuant to this process must result in a significant public benefit and resolve all development and use potential for the subject property held by the contracting party with permanency and be reflected in appropriate approval documents, covenants, or deed restrictions as necessary. (7) Development approvals granted pursuant to this process must balance on-site development, and cash compensation in consideration of any interest acquired in the property by Pitkin County against the monetary value of the property and the conservation and community values related to the property. (c) Procedure. (1) All approvals granted pursuant to this section must first receive an affirmative recommendation from the Community Development Director. This recommendation must consider all development and impacts of development, , and the cash compensation paid from Open Space and Trails restricted funds, the property interests acquired by the County, as well as any other aspects of the final disposition of development and use of the property. Once the Open Space Board has agreed that a possible Open Space Master Plan should be devised, the Board shall pay the costs of the Community Development review up until the such point as the County and Landowner have agreed in writing to the basic terms of a Master Plan, including acreage, reserved rights, and public access, if any. Following such written agreement the private party shall pay all costs of the Community Development review. The property owner shall provide Community Development with all information that is relevant or helpful at the discretion of the Community Development Director. (2) Upon an affirmative recommendation from the Community Development Director, the Open Space and Trails Board must endorse and affirmatively recommend the same conditions of the approval as reviewed and recommended by the Community Development Director. (3) Following affirmative recommendations for approval from the Community Development Director and the Open Space and Trails Board, the Board of County Commissioners shall finally consider and approve or deny, by majority vote of the Board, any requested reviews pursuant to this section. The Board of County Commissioners review approval process shall be by ordinance as that process is described in the Home Rule Charter at section 2.8.1. The Board of County Commissioners can only approve the exact recommendation made by the Community Development Director and Open Space and Trails Board. If the Board of County Commissioners desires to amend or change any aspect of the proposed approval contrary to the recommendations of the Community Development Director and Open Space and Trails Board, the application, in its entirety must be referred back to those two reviewing bodies for an affirmative recommendation. (4) All approvals granted by the Board of County Commissioners pursuant to this section shall be contingent upon the closing of a contract for acquisition of a property interest in the subject property by Pitkin County. (5) Representations and opinions expressed by the County, its departments or Boards, during this review process are not determinative or applicable to any other Land Use Code review processes.