Regional Government Affairs Update March 12, 2021 🌷

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Elected and appointed officials bemoan the lack of attainable housing but seem to be blind to the decisions they make that add to the problem. For example, the City of Loveland just approved new raw water fees that will increase the cost to build a new single-family home by about $300 in 2021, with the amount increasing over the next few years. At the next meeting, the City Council also approved an increase to the fire department’s capital expansion fee that will add to the cost of a single-family home by $90.

These little fee increases add up over time. And of course, the cost is passed along to new home buyers. Decision-makers would justify them by saying, “It’s only $300.” But they have to look at the big picture and watch the bottom line. Over time an increase here and a few more dollars there, add up.

Best Regards, 
Barbara Koelzer
Regional Government Director

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LOCAL
Boulder County
Commissioners Approve Permit Process for Fire Victims: Boulder County just approved updates to its Land Use Code to create a more flexible process for property owners looking to rebuild after the Calwood Fire. The October 2020 fire, the largest in Boulder County’s history, burned 10,113 acres and destroyed 20 homes, mostly in the Mountain Ridge subdivision and three in Foothills Ranch. 
 
The Land Use Code amendments approved by the Board of County Commissioners establish interim permitting procedures that provide flexibility for those who may want to make changes to the homes they had previously, and extend the timeframe for rebuilding from one year to two. Any changes to a home would be subject to a County building permit review, and the timeframe could be extended to three years with director approval.

The amendments also address the hazards that exist after a wildfire, the preexisting geological hazards in the area and other safety concerns. Based on community feedback, the County decided to revise the amendment to include land restoration efforts in addition to full rebuilds.

More information for affected property owners is available here: bit.ly/2ZURo38.
 
Larimer County
Fort Collins
Council Previews East Mulberry Plan: The East Mulberry Plan encompasses Mulberry Street from Lemay to just east of I-25, going north to Vine and south following Summit View to Prospect. Staff described the East Mulberry area as “unique within Northern Colorado.” It is one of the largest industrial areas in the region and boasts over 500 businesses. Some of those businesses are known regionally, nationally and even internationally for their products and services. The area also has several neighborhoods with housing that is, on average, more affordable than much of the broader Fort Collins area. 
 
On March 9 staff gave the City Council an overview of the process to update the East Mulberry Plan, which was adopted in 2002. Staff shared a public engagement plan which will include “heavy” community involvement with stakeholders; the hope is to produce a draft plan by December 2021. 

East Mulberry is a three-square-mile area of unincorporated County land completely surrounded by land within the city limits, otherwise known as an enclave. Although not statutorily required to annex the enclave, the City has an agreement with Larimer County that such an enclave annexation will be pursued. Given the size of the East Mulberry enclave, such an annexation could be phased over several years. 

Staff explained that the East Mulberry Plan will focus more broadly on the area as “a unique destination, which can embrace its existing character while envisioning long-term opportunities.” City Manager Darin Atteberry described the plan as “genuinely community building.” 

Councilmember Susan Gutowsky wondered how receptive residents are to being annexed. Planner Sylvia Tatman-Burruss explained the staff has done focus groups with these citizens, who she described as “apprehensive but interested in learning more” about the benefits. Ross Cunniff said he is “not in a big hurry” to annex it but agreed it’s good to start engagement. Others were appreciative and look forward to working on this project for the next few years. Mayor Troxell said it will be “a very special part of the community…. It’s like the RHINO district in Denver.”

Loveland
Increased Cash-in-Lieu Water Fees Approved: The City Council approved new cash-in-lieu water fees on March 2. Staff requested the increases because of the rising cost of water and expenses the City has incurred as part of its participation in the Windy Gap (Chimney Hollow) water storage project. Developers pay cash-in-lieu if they don’t have existing water rights to satisfy the so-called raw water requirements for their projects. 

Last fall staff had recommended $66,230 an acre-foot (AF) as a cash-in-lieu water fee. However, after hearing concern from city boards and commissions and the Loveland-Berthoud Association of REALTORS®, the cash-in-lieu (CIL) will now be set a $40,150 AF. In addition, the fee will be phased in over four years. 

Staff also expressed concern that setting the CIL Fee at $66,230/AF could lead to developers aggressively seeking ways to meet raw water dedication requirements other than paying CIL, and could result in much lower CIL revenue. The 2021 CIL for a single-family home will be $1,337. Before the increase that was just approved, it was $1,087.

Loveland joins Metro DPA Downpayment Program: The City Council approved a resolution allowing Loveland to participate in the Metro Down Payment Assistance Program. Metro DPA provides downpayment assistance to residents making up to $150,000 a year. Participation does not require the City to contribute any taxpayer money. 
 
The program is designed to offer assistance to qualified borrowers in the form of a variety of 30-year fixed-rate first mortgage options and down payment assistance. For example, aid can be provided in the form of assistance set as a percentage (up to 6 percent depending on loan type) of the overall note and the aid can be applied toward downpayment or closing costs. The full amount of aid is provided as a silent second mortgage (0 percent interest) and forgivable monthly over 36 months. 
 
Current qualifications for applicants include qualifying credit score levels (640 or 680 depending on loan type), income limits ($150,000), purchase price limits ($548,250), and property/home type restrictions determined according to loan type. More information about the program is available at www.metroDPA.org. 
 
Note: Participation for Loveland is free. The City and County of Denver pays operational costs. Other local participating jurisdictions include Longmont, Fort Collins and Evans, among others.
 
City Holds Metro District Open House: As part of its goal of greater citizen engagement, the City of Loveland held an online public open house on March 1. The intent of the meeting was to educate residents about metro district governance and allow participants to ask questions. The City Council was on hand to answer questions and listen to the conversation. 

Over 120 people participated in the meeting. Unfortunately, some metro district residents said their Realtors® had not fully explained the consequences of buying a home in a metro district. One participant said they were a local Realtor® and didn’t understand how metro districts operate. This person asked city officials to give Realtors® more information.

These stories are a cause of concern, but it is important to remember that the participants in the open house represent a fraction of Loveland residents who live in metro districts. On the positive side, members of the City Council praised the Loveland-Berthoud Association of REALTORS®’s role in drafting a metro district homebuyer disclosure form several years and spoke of personal interactions with Realtors® who were professional and knowledgeable about metro districts.

Real estate professionals have a responsibility to educate themselves concerning metro districts. Currently, there are 18 metro districts in Loveland as well as many others all over Northern Colorado. The City now has online resources which you can access here: https://www.letstalkloveland.org/metro-districts and https://www.lovgov.org/services/finance/metro-districts.

The City Council will hold a study session on April 13 featuring a panel of metro district experts, including LBAR member David Powell. After that, it is possible the Council could direct staff to draft additional changes to its metro district policy and require additional disclosure requirements. 

Weld County
Greeley
Council Approves Terry Ranch Water Deal: The City Council unanimously approved the proposal to purchase the water rights for Terry Ranch on March 2. Terry Ranch will provide a cost-effective water storage alternative to Milton-Seaman Reservoir, which Greeley Water and Sewer Director Sean Chambers said is unlikely to ever receive approval for expansion because of environmental issues. In addition, the water in the aquafer will augment Greeley’s water in case of drought. The innovative project required two approvals, one is a resolution for the transaction and an ordinance to amend Greeley’s raw water policies. 
 
During Council’s discussion, Brett Payton admonished one of the project’s opponents. “I’m a real estate attorney. Referring to Terry Ranch as a ‘Superfund Site’ is slander…” Tommy Butler said if he had the slightest concern about the project’s safety he would have voted no. Mayor Gates said the City did its “Due diligence and then some. Thousands of water samples and a comprehensive set of tests. Terry Ranch is the most cost-effective option.”
 
While many members of the public spoke in support of the project, including the City’s Water guru, Harold Evans, a small group of opponents who call themselves Save Greeley’s Water (SGW) still oppose it. Led by several disgruntled former Water Department employees, SGW claims the naturally occurring uranium in the aquafer below Terry Ranch is hazardous, in spite of the information provided by City staff and third-party experts to the contrary.
 
SGW is now attempting to derail the project by filing a protest to the ordinance, which still requires a second Council vote. The group has three weeks to gather 2,200 signatures to force the City to require voter approval for the ordinance. 
The Greeley Area REALTOR® Association, the Greeley Chamber of Commerce, the Northern Colorado House Builders Association, former mayor Tom Norton and a number of other knowledgeable citizens support the project.  

You can help! Do not sign the petition that could halt Terry Ranch and require a costly special election. 
 
More information is available here: https://greeleygov.com/services/ws/trp/greeley’s-water-future
 
Keep Greeley Moving: The Keep Greeley Moving Sales Tax (KGM) Expires on December 31, 2022. The Council had discussed putting its reauthorization on the ballot last November but chose not to because of COVID and its desire to avoid putting too many tax renewals on the ballot during a difficult year for residents.  KGM revenues are allocated to three types of projects: road maintenance, road expansion, and sidewalk repair/replacement. 
 
Staff described the 2022 election as a “cluttered” election because of numerous stand and local issues. The recommendation is to consider putting it on the November 2021 ballot instead. While the City’s annual wish list would require $20 million to fund, staff would be comfortable with a reauthorization of the KGM rate of .65 percent. Public Works Director Joel Hemesath noted that almost half of Greeley’s sidewalks need repairs and ramps to comply with the Americans for Disabilities Act (ADA).
 
The City’s Budget Advisory Committee suggested the Council should consider increasing the tax up to .95 percent to generate enough money to cover the $20 million Public Works wish list – if resident polling supports that increase. The City Council didn’t have a lot of questions and agreed with the proposal to poll residents this spring and come back to Council to discuss the results in June. 
 
Council Reviews Infill Strategies: The City Council discussed infill strategies as part of the broader push to implement the City’s Strategic Housing Plan. The idea is to create the criteria to allow infill projects to fit into neighborhoods. Staff described strategies they’d like to use to evaluate a project including –

• Frontage – the relationship of the building and site to the streetscape
• Size and Setback – the relationship of the building to adjacent property
• Design Interest – windows, doors, ornamentation and design details
• Open Space – the relationship of non-building elements to adjacent property
• Architecture – the quality of the design and compatibility of a particular style.

The Council didn’t offer many comments, saying they liked the staff’s recommendations. Interestingly, they did not discuss the “elephant in the room,” which is how infill can create more density. That is often very contentious, with advocates claiming more density will negatively affect the character of the neighborhood. The infill strategies will come back to Council as part of the larger package of code revisions in the Fall. 

STATE
Colorado Stimulus Plan: On March 11 Governor Jared Polis and the legislature’s Democratic majority unveiled their $700 Million “custom recovery strategy” for Colorado, which they say will focus specifically on the “hardest-hit sectors of our economy and community.” While many aspects of the plan do not specifically relate to real estate, there are some components that could affect our industry one way or the other.

Infrastructure is a plan priority with $170 Million allocated for “tourism corridors and scenic byways … Denver Metro Wes I-70 bridges, and improvements to the Eisenhower-Johnson Memorial Tunnels.” Notice this list does not specifically mention North I-25. Instructure also includes “Innovative Housing and Community Revitalization” to the tune of $60 to $80 Million. This will “transform downtown spaces” and make more affordable housing options in urban areas, according to the plan. Broadband access is also included in this category ($50-$75 Million). 

Under a primary goal of “Supporting Colorado Families,” the plan also intends to spend up to $10 Million on an affordable housing incentive program to fund local governments and encourage them to use a menu of options to build,, including reducing building permit fees, creating a vacant property registration program for the development of the affordable housing, or authorization of cluster zoning. 

The plan will be funded through the use of unexpected tax revenue. The legislation to implement the plan hasn’t been introduced yet. Legislative leaders were waiting for the passage of the federal COVID relief bill before finalizing the funding for the state plan.

Eviction Filings on the Rise: Eviction filings have increased since the beginning of the year when Governor Polis chose not to renew a state eviction moratorium. Housing advocates have criticized the governor’s decision and complained that the State’s housing assistance program is overwhelmed, according to an article in the Denver Gazette. 

Since Colorado’s moratorium expired on Dec. 31, the Governor has relied on the federal eviction moratorium, but advocates say the federal order is inadequate. It prevents landlords from evicting tenants who are behind on rent because of the pandemic, but allows them to proceed right up to the point where those tenants are physically removed. The federal order also allows landlords to seek evictions for tenants whose lease has expired, a tactic that advocates say can be used to get rid of people behind on their rent.

Once Polis’ order expired, evictions across the State increased especially in Denver and El Paso Counties. However, it is important to note that eviction filings are still far below pre-pandemic levels. Even so, advocates warn that Colorado risks driving more people into evictions at a time when the state is beginning to look toward the end of the pandemic. According to a mid-February survey conducted by the Census Bureau, more than one in four adult Coloradans said they’re behind on their rent or mortgage payments.

The Governor has defended his decision not to renew his eviction moratorium by pointing to the federal moratorium, which is now facing a legal challenge. (see below). The Governor also pointed out that our state has received or allocated over $340 million to housing and direct assistance for residents.

NATION
Congress Passes More COVID Relief: NAR’s Federal Advocacy team has been working closely with Congress and the Administration to ensure the interests of REALTORS®, their families, consumers, and the entire real estate industry are protected in any federal action in response to COVID-19.

Congress has passed a $1.9 trillion coronavirus relief package known as the “American Rescue Plan of 2021” and the bill was signed by the President. Included in the package are several provisions that impact the real estate industry. This is the sixth major coronavirus relief bill signed into law since the beginning of the pandemic.

Highlights of the American Rescue Plan:

• $1,400 stimulus checks per person, phased out completely for individuals earning $80,000 per year and couples earning $160,000 per year (Those earning under the income limits will also receive $1,400 in stimulus money for each dependent, regardless of age, claimed on their latest filed tax return.)
• An extension through Sept. 6, 2021, to the Pandemic Unemployment Assistance program with the continuation of the current $300 per week in Pandemic Unemployment Compensation
• Exclusion of up to $10,200 in unemployment compensation from taxation for those with AGI of $150,000 or less, beginning in the tax year 2020.
• $21.55 billion in new money for rental assistance, on top of the $25 billion allocated in December.
• A one-year increase in the child tax credit, paid in monthly installments, including $3,000 a year for each child ages 6 to 17, and $3,600 a year for each child under age 6 for couples who make $150,000 or less and single parents who make $112,500 or less
• Expanded Paid Sick and Family Leave through Sept. 30
• $10 billion for a Housing Assistance Fund that will allow state housing finance agencies to help homeowners with COVID-19 hardships
• $100 million for housing counseling services
• $15 billion for a new small business grant program
• $350 billion instate and local aid
• $130 billion for schools

https://www.nar.realtor/political-advocacy/american-rescue-plan-summary

Legal Challenges to Federal Eviction Moratorium: On February 26 a federal district court in the Eastern District of Texas declared the CDC’s eviction moratorium violates the Constitution’s Commerce Clause.  Several property managers filed this case in the Eastern District of Texas, and therefore the decision only applies in this district and is not binding in others. 

In this case, the plaintiffs argued the CDC’s eviction moratorium enacted in September of last year and extended in January of this year, violates the Constitution’s Commerce Clause where the agency’s action was beyond the scope of its Article I powers. The CDC has argued a nationwide eviction ban is within its federal authority to regulate commerce among the states. Terkel et al. v. CDC (U.S. District Court for the Eastern District of Texas)

Interestingly, two-state Realtor® associations have also filed a case challenging the federal moratorium. In this case, the plaintiffs argued the CDC order is unlawful on procedural grounds, namely how the order: (1) violated the Administrative Procedures Act and Regulatory Flexibility Act; (2) how the CDC exceeded its statutory authority when issuing the Order; (3) how the Order constituted an unconstitutional taking under the Fifth Amendment; and, (4) how the Order violated due process rights. The government has argued existing authority under the Public Health Services Act to issue the order as a public health measure. The Commerce Clause argument raised by the plaintiffs in Texas was not raised in this case and therefore does not directly impact the claims in this case. However, given the overlap in some of the reasoning (i.e. public health defense), it could be persuasive.  

This case is still pending before the D.C. District Court, which is aware of the Terkel decision. A decision in this case could come as early as next month. (Alabama Association of REALTORS®, Georgia Association of REALTORS® et al. v. CDC (U.S. District Court for the District of Columbia)

The CDC eviction moratorium is currently in effect until March 31^st, and President Biden has previously indicated a preference for an extension through September, although no announcements have been made to date. 

 NAR Supports The Equality Act: The National Association of REALTORS® applauded the House on Thursday after lawmakers reintroduced and passed the Equality Act, a 2019 bill that would extend fair housing and other civil rights protections to LGBTQ Americans. The House first passed the measure nearly two years ago, but it stalled in the Senate. This time, the Equality Act is expected to move forward in the Senate, though support for its successful passage remains unclear. President Joe Biden has vowed to sign the law if it makes it to his desk.

The Equality Act, also known as H.R. 5, would amend the Fair Housing Act of 1968 to prohibit discrimination on the basis of sexual orientation and gender identity, giving the LGBTQ community added protections in home sales, rentals, financing, insurance, and other housing-related transactions. It would also ban LGBTQ discrimination in the application of credit, employment, public education, public accommodations, federal funding, and the jury system.

“NAR applauds the House of Representatives for taking action to extend fair housing protections to LGBTQ Americans,” NAR President Charlie Oppler said in a statement. “As stewards of the right to own, use, and transfer private property, REALTORS®’ livelihoods depend on an open housing market, and discrimination of any kind limits our shared goals, undermines our values, and inhibits our ability to conduct business.”

NAR is among more than 600 organizations and 300 major companies that have voiced support for the Equality Act, including numerous real estate and mortgage firms. The association also has been a leader in anti-discrimination policy: NAR amended its Code of Ethics to prohibit discrimination based on sexual orientation in 2011 and gender identity in 2013.