Regional Government Affairs Update January 27, 2020🌞 🌁 🚗


In this issue…

Boulder County
Council Discusses Construction, Energy Code Updates
Trustees Approve Carriage Houses
Larimer County
Oil and Gas Taskforce Submits Draft Rules
Election is April 7
Trustees Give Preliminary Approval to Mountain Avenue Overlay District 
Fort Collins
Preliminary Approval for Montava
Hughes Stadium Rezoning Delayed Again
Tentative Approval for Building Codes
Planning Fees to Double
LPC Takes Positions on Bills
What’s Next for Transportation Funding?
Administration Streamlines NEPA Reviews
AQB Proposes Update to Appraiser Criteria

Boulder County

Council Discusses Construction, Energy Code Updates: On January 21 the City Council unanimously passed a package of updates to municipal building codes on second reading,  including the 2018 International Residential Code and the 2020 City of Boulder Energy Conservation Code. For the first time, the residential code will allow tiny aka micro homes – 400 SF or less.

The tiny home amendment requires these homes to be constructed and inspected on a fixed foundation and hooked to fixed utilities, as is the case in most municipalities. The Council did ask staff to add language for third reading allowing off-site construction of these units, which would then be placed on permanent foundations.

The sprinkler exemption for single-family and duplex dwellings was removed from the residential building code. This means that moving forward new single-family and duplex homes and any single-family or duplex unit undergoing a change of use, including detached ADUs, must include sprinklers for fire safety. Thus, Boulder will join Boulder County, Aspen, Cherry Hills Village, Vail and seven other jurisdictions in Colorado in requiring residential sprinkler systems. The cost to install them is estimated to cost an additional $1.35 per square foot. In addition, the City Council approved a variety of other local amendments, including straw-clay construction for non-load bearing walls and the use of strawbale construction for structural and non-structural walls.

Regarding the approved amendments to Boulder’s energy code, new homes larger than 3,000 SF must meet net-zero energy requirements. It is the City’s goal eventually, to require net-zero construction for all new buildings but it will take several building code cycles to get there. Also, increased recycling and reuse rates are now required for materials during demolitions. During public comment a commercial architect applauded this, but criticized the City’s increasing review times, which is hurting small businesses, he said.

The ordinance to adopt all the code changes will require third reading and possibly a fourth. The effective date was changed to July 1, at Council’s request.

Trustees Approve Carriage Houses:  Erie’s Board of Trustees approved the fourth phase of development in Erie Highlands, south of Erie Parkway and west of Weld County road 5. The project will include 156 single-family lots on 29.6 acres. The homes are described as “carriage” houses, which range from 1,200 to 2,200 square feet in size and are clustered around a shared driveway. The carriage style house is becoming more common in Northern Colorado as a way to create entry-level homes.

In order to bring the project into compliance with Erie Highland’s PUD (Planned Unit Development), the trustees approved a modification to the PUD to allow carriage houses and increase the density from five to eight dwelling units per acre.

Larimer County
Oil and Gas Taskforce Submits Draft Rules: Larimer County’s Oil and Gas Task Force has finished its draft rules. The rules would require operators to maintain a 1,000 feet setback from any residential lot, 2,000 feet from any hospital, school or other high occupancy buildings and at least 500 feet from a body of water.

Drillers would also have to file multiple reports on how it would minimize emissions, odors, noise and potential discharge into local sources of water before the County would issue a drilling permit. Larimer County is one of several Front Range counties proposing tighter restrictions than the State code in the wake of Senate Bill 181, a sweeping reform on the oil and gas industry that changed the mission of the Colorado Oil and Gas Conservation Commission (COGCC) to prioritize human and environmental health and allowed local governments to enact their own additional rules.

Adams County, Boulder County and the cities of Erie and Louisville put temporary moratoria on all new drilling activity in their jurisdictions. Weld County, by far the state’s largest producer of oil and gas, has formed its own permitting department. There are 36 pending drilling applications in Larimer County, according to COGCC data. The County currently has 206 active oil and gas wells, which produced just over 1.34 million barrels of oil and 7.35 million metric feet of natural gas in 2019. (This is miniscule in comparison with Weld County’s 10,000 active wells producing 13.7 million barrels of gas and oil and 76.8 million metric feet of natural gas according to the latest data.

The County Planning Commission will hear in-person comments on the proposals February 19 and March 23 at the Larimer County Courthouse. Public comments can be submitted via email to Matt Lafferty at

Election is April 7: On April 7, 2020, the Town of Berthoud will hold a municipal election via mail-in ballot for mayor and three trustee seats, including current Mayor Will Karspeck and Trustees Paul Alaback, Jeff Hindman and Brain Laak. All four seats will be for a four-year term.  These officials are eligible to run for another term. Candidate petitions are available now and must be returned by January 27.

Note: Statutory towns in Colorado such as Berthoud follow State of Colorado law regarding term limits, which limits elected officials to two consecutive four-year terms in office.

Trustees Give Preliminary Approval to Mountain Avenue Overlay District: Berthoud’s Board of Trustees gave approval on first reading to the Mountain Avenue Overlay District on January 14. The overlay district is important because it illustrates the Town’s vision for itself going forward. Its purpose is to protect and enhance the existing historical districts direct the general character of new development on Mountain Avenue (Highway 56).

The overlay district defines and emphasizes unique character districts along the corridor and sets specific guidelines as to architecture, site planning, parking, urban design and streetscapes. The underlying zoning remains, but specific design, architecture and setback requirements are governed by the overlay district.
The district extends along HWY 56 and is applicable to all properties within 150’ of the centerline of Hwy 56 from CR 19 to I-25. It is divided into six different character districts:

Berthoud West – Highway 287 to 8thstreet. This area is envisioned as a vibrant, walkable commercial district.
Residential Conversion – 8th Street to 5th Street. Characterized by charming older homes occupied by businesses and commercial uses.

Downtown Commercial – 5th Street to 1st Street. A concentration of character and personality that shapes much of the Town’s identity.

Berthoud East – 1st Street to County Line Road 1 (but extends a half mile more to the east on the south side). A transition district from the rural agrarian areas to the downtown core. It’s envisioned as a vibrant walkable residential district with a mixed-use area near County Line Road 1.

Agricultural – County Line Road 1 to one half-mile west of I-25. The goal of this district is to retain the rural and agrarian character and protect the views of the Rocky Mountains.

The Trustees made some minor revisions to the overlay standards on January 14. They added an exemption for existing single-family homes so those will still be required to follow the development standards of the underlying zone district. The second reading and public hearing is scheduled for January 28.

Fort Collins
Preliminary Approval for Montava: On January 14, the Fort Collins City Council passed several ordinances on first reading related to the Montava development, which if approved again on February 18, will allow developer Max Moss to move forward with his project. Montava is an approximately 1,000-acre project south of the Anheuser-Busch plant in the northeast section of Fort Collins. Montava could add 4,000 residential housing units to the City’s inventory — a mix of single-family homes, attached homes, 1200 SF cottages and multi-family apartments.

The City Council had already approved Montava’s metropolitan district service plan, but its approval was also needed for the developer’s Planned Unit Development (PUD) proposal. This is the agreement which the Council passed on first reading January 14 by a 5-2 vote, with Ross Cunniff and Susan Gutowsky opposed. The PUD process is a framework for long-term development. A PUD project must offer public benefits and high-quality design.

Montava’s public benefits include: 1) 15 percent deed-restricted affordable housing; 2) zero-energy energy efficiency; 3) non-potable water for common areas and some private yards; 4) a 47-acre farm; 5) a rec center and New Urbanist design. Staff agreed that Montava met the PUD requirements and recommended approval. During public comment a number of City residents living in the area attended the meeting and complained about current traffic issues, particularly on Country Club Road.

Councilman Ross Cunniff had opposed Montava’s metro district service plan and voted to deny the PUD application. He said, “It’s certainly an attractive plan” but said he wasn’t supportive of the project because the area is already under-served by the City and Larimer County. Susan Gutowsky agreed, saying, “It’s not for want of a beautiful plan. It’s well-planned.” She explained that if the City Council can deliver on the traffic solutions residents are requesting, she might be able to change her vote next month.  The rest of the Council was enthusiastic, describing the project as “the epitome of smart growth” (Julie Pignataro) and “I think it’s great” (Emily Gorgol).

Hughes Stadium Rezoning Delayed Again: Yet another ethics complaint against Mayor Wade Troxell, Mayor Pro Tem Kristin Stephens and Councilmember Ken Summers has delayed the final vote on rezoning the Hughes Stadium property until March 17 at the request of Mayor Pro Tem Stephens. The complaint was filed on January 21, just hours before the scheduled city council meeting.

Tentative Approval for Building Codes: The Loveland City Council passed a series of ordinances on first reading January 21 to adopt the 2018 building codes. Chief Building Official Samantha Everett listed the changes in the 2018 codes, most of which are inconsequential. Everett then brought up the issue of permit requirements for water heaters, furnaces and roofs, which became controversial several years ago.

Everett, who was hired last year, said her research showed that the City had never officially exempted the permit requirement for these items. She explained the Construction Advisory Board adamantly believes the permits are needed for resident safety. A homeowner can do the installation, but the permit still requires a City inspection, ensuring the work was done properly. Everett also noted the City routinely gets complaints from citizens about shoddy work but has little enforcement authority if the owner did not get a permit for the work in question.

The Council discussed the idea of charging a reduced permit fee for water heaters in particular, which are easier to install than furnaces, for example. Everett said the State recommends the permitting of water heaters because these appliances connect to potable water. City Manager Steve Adams said the staff will draft a resolution for the Council’s consideration to charge a flat $100 fee for water heater permits. (Currently the permit fee is based on a percentage of the cost of the heater plus staff time). The Council voted 7 to 1 to approve the ordinances, with Mayor Jacki Marsh opposed. Marsh did not explain the reason for her vote.  Second reading of the ordinance will happen on February 4.

Planning Fees to Double: The City Council grudgingly approved an ordinance on first reading to double the fees charged by current planning for application reviews. The fees were recommended during the 2020 budget process but accidently omitted. Current Planning Manager Bob Paulsen said the new fees will simply allow the City to recover the cost of staff time.

Councilman Dave Clark said, “I don’t agree with 100 percent fee hikes.” Councilman Rob Molloy suggested a sliding scale for small development applications since these projects shouldn’t require the amount of time a larger application would require. Mayor Marsh liked this concept. The Council passed the ordinance 7-1 with Molloy opposed. It is unclear if 2nd reading on February 4th will include Molloy’s sliding scale suggestion.

LPC Takes Positions on Bills: CAR’s Legislative Policy Committee (LPC) spent hours at its first meeting of the session taking positions on real estate-related bills. Here is a sample of the most interesting bills and CAR’s positions:

SB-096 “Remote Notaries Protect Privacy” CAR Position – Support
SB-096 authorizes notaries public to perform a notarial act through use of audio-visual communication, commonly referred to as “remote notarization” and, most importantly, prohibits the use or sale of personal consumer information by a remote notary or the provider of a remote notarization system outside the notary transaction.

CAR supports uses of new technology such as remote notarization; however, data privacy concerns of consumers must be considered. This legislation would protect consumer data privacy in a meaningful way for consumers and it also aligns with NAR and REALTOR® ethics standards.
SB-109 “Short-term Rentals Property Tax” CAR Position – Oppose

SB-109 changes the definition of a residential improvement property tax classification from residential to commercial property when a building, or portion of a building, designed for use predominantly as a place of residency by a person, a family, or families, but that is leased or available to be leased for short-term stays during the property tax year. This would change the property taxes from 7.1% to 29% for those that rent out their property as an investment.

Classifying a short-term rental unit as a nonresidential property interferes with the private property right of a homeowner and excessive regulation could be considered a taking of property under the U.S. Constitution.
HB-1141 “Fees Charged to Tenants by Landlords” CAR Position – Oppose

The bill prohibits a residential property manager or landlord of a mobile home park from charging a tenant a late fee for late payment of rent unless the rent payment is late by at least 14 calendar days or charging a late fee in an amount that exceeds $20 or 3 percent of the tenant’s or home owner’s monthly rent or 3 percent of the amount of the rent that has not been paid. Additionally, the proposed legislation would prevent the initiation of eviction procedures as a result of the tenant’s failure to pay late fees. A landlord could not charge a late fee more than once per late rent violation or charge interest on the late fee imposed. Finally, any amount of the late fee would not be allowed to be taken from a rent payment but instead from a security deposit.

Many of Colorado’s property owners enter the rental market as landlords because they are looking to downsize, are required to relocate due to occupational demands, such as military orders, as a source of income, or to provide retirement stability. Property owners do not have the opportunity to pay their mortgage late if a tenant is late paying their rent and do not have enough savings to cover their mortgage payments when rent is late or does not show up at all. This legislation does not balance the property owner and tenant obligations evenly, it adds litigation procedures and treble damages for not acting in good faith.

What’s Next for Transportation Funding? Following the failure of multiple transportation measures to gain voter support, the question now is how can Colorado fund highways? CDOT has a $9 billion list of needs and the legislature will need to decide if it is willing to allocate any general fund dollars to supplement the Colorado fuel tax, which is declining in value. The fuel tax has not been increased in our state for nearly 28 years.

The Fix North I-25 Alliance, advocates for a $300 million general fund annual allocation. A fuel tax increase and an increase in the fees paid by electric vehicle owners might be the most equitable and simple solution to augmenting Colorado’s transportation budget, if legislators would support it.

In the meantime, a bill (HB-1151) was just introduced by Representative Matt Gray (Broomfield) and Senator Faith Winter (Westminster) that would allow groups of local governments to create transportation planning organizations and impose various taxes (with voter support) for transportation and transit solutions. Some transportation advocates fear this idea would simply “balkanize” Colorado’s highway system and put rural areas at a disadvantage.

Gray and Winter do not intend to hold hearings on the bill for a while, hoping that a statewide solution will emerge. However, if no bi-partisan agreement is found, Winter said the bill will move forward.

Note: Only seven states (including Colorado) have not increased their fuel tax since 1997.

Administration Streamlines NEPA Reviews: The National Association of REALTORS® is backing the Trump administration’s proposal to reform the National Environmental Policy Act, which NAR President Vince Malta says could help modernize environmental standards while also helping to alleviate housing shortages. Malta joined President Donald Trump and other officials at a White House event Thursday to announce the proposed NEPA changes, which would be the first in more than 40 years.

The Trump administration says the reforms will help streamline approval of infrastructure and housing projects, highways, and energy pipelines. The plan is still subject to public hearings before it can be approved. Malta says the reforms could reduce regulatory burdens while still retaining strong environmental quality standards. “NAR has long advocated for common-sense reforms to promote infrastructure development and streamline review processes without compromising on critical environmental protections,” Malta said in a statement. “Since NEPA was last updated nearly four decades ago, the housing industry has seen countless infrastructure modernization projects paralyzed by arbitrary delays and unreasonable cost increases.”

In recent months, NAR has intensified its calls for comprehensive reforms to the nation’s infrastructure. “The National Association of REALTORS® is confident that the reforms announced [Thursday] will remove the barriers standing in the way of infrastructure improvements that stimulate economic growth and create jobs,” Malta said. “We look forward to partnering with the White House as it works to implement these changes in the most responsible and effective way possible.”

NAR’s sentiment was echoed by other housing groups, including the National Association of Home Builders, which says the reforms could help spur new home construction. “This proposal to modernize and reform the NEPA review process will streamline the NEPA reforms could help spur new-home construction permitting process and reduce unnecessary costs and delays for vital infrastructure projects that are needed to support residential land development projects,” says NAHB CEO Jerry Howard. “For the housing industry, those uncertainties and delays create challenges for communities, businesses, and builders, and further exacerbate the current housing affordability crisis. We welcome the latest action by the administration to remove regulatory barriers that hinder housing and economic growth.”

AQB Proposes Update to Appraiser Criteria: On January 6 the Appraiser Qualifications Board (AQB) released proposed changes to the Appraiser Qualification Criteria that would align with recent changes by the federal banking agencies allowing the use of evaluations for residential properties under $400,000 in lieu of an appraisal in federally related transactions. The proposed changes to the Criteria would allow licensed residential real property appraisers to perform appraisals of complex one-to-four residential unit properties up to $400,000. Currently the limit is $250,000 which reflects the former value used by the federal banking agencies. Comments are due February 6, 2020.

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