Why KARES is fighting to protect the Kanemoto Conservation easement from subdivision development

Why we're fighting to protect the KCE

1) It is an inherently perpetual conservation easement established in 1982 to preserve the rural character of the Colorado plains.

2) It abuts a Riparian (stream) corridor where wildlife migrates in search of food and friends.

3) It is designated as Nationally Significant Agricultural Land.

4) For its scenic beauty it has been placed in the Airport Road View Protection Corridor.

5) It is considered irreplaceable agricultural land.

6) The potential termination is a violation of local and state regulations.

7) Nature groups have expressed a concern that a developer can buy a conservation easement for $2.32 million dollars.

8) Eliminating our landed treasures is becoming an ominous precedent.

Why do we oppose a subdivision on the Kanemoto CE?

1) 426 housing units forced into a tiny 40-acre lot is a high-density mini-city.

2) Several years of heavy construction, bulldozers, backhoes, dump trucks, excessive noise, dust, road cones, and traffic diversions on Airport Road.

3) Nearest amenities are more than 1.5 miles away.

4) 426 housing units will generate 3,885 additional automobile trips each day onto Airport Rd.  The potential congestion will be overwhelming. View traffic report.

5) Local schools will suffer a significant increase in enrollment.  How will this be financed? Residents of Condos and apartments pay less school taxes or none at all. But as a homeowner, you will pay for the increased cost.

6) The 119 and Airport Rd intersection is the most accident-prone in Boulder County.

7) The city would not provide a clear answer as to whether the roads in the Clover Creek neighborhood will be torn up to install sewer lines and other utilities to service a new subdivision.

8) There are current unresolved legal challenges working their way through the courts.

9) A required Land Use Assessment by the County Natural Resource Planner appears to have been suppressed.

10) There has been significant disunity among County Commissioners concerning the direction of this potential termination.

11) The County Comprehensive Plan forbids Urban Sprawl and Strip Development.  Every new Board of Commissioners makes another small exception.  This is called Leap Frog development.  The County will eventually become a metroplex.

12) Why has the county diverted the termination issue to a need for affordable housing? Responsible officials do not destroy a landed treasure when there are multiple depressed areas in the city in need of revitalization (click here to learn more about Longmont’s Redevelopment and Revitalization plans). Why has the city and county ignored this vital need to redevelop these eyesores scattered throughout the city?  Because they were offered 2.32 million dollars for the CE (click here to email the Longmont City Council).

13) What is affordable housing?  The property is a short distance from the City of Boulder. The destiny of this development is to become a bedroom community for the City of Boulder.  Due to the university, nothing is affordable or ever will be in Boulder.

Grounds for Opposition to Termination of the Kanemoto Conservation Easement

As per the 2007 amendment to the Colorado Planning Act 30-28-106.  A majority of the Boulder County Comprehensive Plan (BCCP), the master plan, is now a binding statute after its inclusion into the Subdivision, Zoning, and Planned Unit Development regulations of the Boulder County Land Use Code (BCLUC).  Compromising these sections is a violation of the Law.

The first paragraph of the Boulder County Land Use Code:

1-300 States, "The code shall be in accordance with and shall serve to implement the goals and policies of the BCCP."  There are 152 references to the BCCP in the BCLUC.  The overwhelming emphasis throughout the BCCP is for the Conservation and Preservation of Agricultural lands in Boulder County by limiting urban growth to compact Community Service Areas.

6-800 Non-Urban Planned Unit Development, Conservation Easements NUPUD/CEs are granted in perpetuity and must comply with the Current BCCP and BCLUC.

6-700 Boulder claims the Transfer Development Rights Intergovernmental Agreement is active. If it is active:

TDRs are forbidden on Nationally Significant Agricultural Lands, i.e. the Kanemoto property.

The maximum number of allowed units in a TDR is limited to 200.  Not the 426 units projected by Bestal Collaborative.

Subdivided lots before August 17, 1994, as not allowed in TDR receiving sites.  Proving that the placement of the protected 1982 NUPUD/CE Kanemoto property into the Longmont CSA in 1996 was a gross legal error.

6-100 Development Plans and PUDs must conform to the BCCP. "To accomplish the preservation of those lands identified within the BCCP as agricultural lands of National, Statewide, and Local importance..."

6-400 "The mechanism to preserve these resources is a Conservation Easement which may not be developed."  

6-700 In addition the last southern mile of Airport Road is a BCCP View Protection Corridor protected by the BCLUC.  Boulder County has allowed the northern half of this VPC to be corrupted with numerous housing developments. The BCLUC forbids TDR receiving sites in VPCs. "TDRs shall not be located on Nationally Significant Agricultural Lands or corridors as identified in the BCCP"  The Kanemoto property is located on both NSAL and within the Airport Road VPC.

Although the legal grounds to prevent the Kanemoto CE termination are overwhelming, the Boulder County Planning Commission ignored every single legal position without comment and voted to terminate the CE.  Boulder County has a history of selling off the Landed Treasures of Colorado by ignoring their fiduciary responsibility to preserve and protect, gaining multi-million dollar payments in return,

The following items further define and support the previous sections of Law from the BCLUC.

1) The Kanemoto CE contract only allows termination under conformance with the Current Boulder County Comprehensive Plan (BCCP) and Boulder County Land Use Code (BCLUC).  The numerous sections of the BCCP included in the BCLUC are Statutory Laws in Boulder County.  The Kanemoto CE was established in 1982 utilizing the NUPUD/CE designation (pg Ag-2) which under the BCCP requires Boulder County to Conserve and Preserve (pgs CG-3, AG-4, GE-10, OS-1) the CE indefinitely (pg AG 1.13).  After an exhaustive review of the BCCP, there are over 35 references requiring Boulder County administrators to preserve agricultural properties especially those protected by the NUPUD/CE designation (pg PPA-2, 2.03, 2.04). 

2) The transfer of the 1982 CE into the Longmont Community Service Area/Longmont Planning Area (CSA/LPA) in 1996 was a Legal Violation of the previously established NUPUD/CE.  The Kanemoto Conservation Easement is protected under the preexisting conditions of the BCCP.  These legal protections have not changed since 1978 (pg IN-1) and in fact, have been reinforced several times since 1978.

3) Contrary to the January 2023 statement by Parks and Open Space (POS) there is no reference in Provision A of the Kanemoto contract allowing for termination by MERGER. In fact, the Colorado Legislature in 2019 forbids the Merger of CEs when a tax consideration has been employed. HB19-1264, C.R.S. 38-30.5-107.  The BCCP encourages the issuance of a Tax benefit as a method of securing CEs. (pg OS-7) By legal convention, a court will likely assume a tax benefit was received unless proven otherwise. The Boulder County Commissioners will need to demand a tax document from the original owner, Colorado Dept of Revenue, or IRS to prove no tax benefit was gained in the original CE transaction. Otherwise, termination by Merger is forbidden.

4)  The CE contract requires the Boulder County Commissioners to evaluate any termination with conformance to the BCCP and the BCLUC.  They failed to consider any provisions of the BCLUC.  They violated their obligation to conform to the State of Colorado contract law.

5) The Kanemoto Property is designated by BOTH Boulder County and the USDA as Prime Farm Land (BCCP Map 31) which places it in the category of Nationally Significant Agricultural Land.  The BCCP disallows the placement of Nationally Significant Agricultural Lands into TDR receiving sites. (PPA 3.04)  The BCCP also requires Boulder County administrators to conform to State and National programs preserving agricultural properties. (pg AG-5, AG 1.07)

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Map 31, Shows the property is Designated as Nationally Significant Agricultural Land. Link to map PDF.

6) Paragraph 3 of the Kanemoto CE contract requires that both Provision A AND Provision B must apply.  There is no severability clause, so both Provisions A AND B are required to manipulate any change in the contract.  Provision B of the Kanemoto Contract does not provide for any termination of the Conservation Easement.  It only allows for a Transfer of the Conservation Easement.  Conservation Easements can only be transferred to entities authorized by the State of Colorado Department of Conservation as having a recognized Conservation mission.  Since the CE can only be transferred to a qualified entity, the use of the term Terminate in paragraph 3 is understood to only apply when the CE is impossible to maintain.  This is explained in the IRS code 170(h), the Boulder County POS CE Program Policies and Practices, Restatement (Third) of Trusts (2003), Uniform Law Commission,  Uniform Trust Code, and Restatement (Third) of Property Servitude. (2000).  In these references Judicial review and Cy Pres doctrine are required.  If any ambiguity is perceived with an interpretation of the terminate vs transfer contract language, Colorado Contract Law requires the only resolution is by a Jury Trial.  It cannot be interpreted by a governmental administrative body.

7) The POS Policies and Practices have evolved to support the BCCP.  There are 33 references to CE perpetuity in the POS document which also requires Judicial Review concerning any form of CE Termination to prevent conflict with State and National law: pg 6  #5. Jeopardize Boulder County’s ‘qualified holder’ status under the State of Colorado and IRS regulations or undermine the public’s confidence in the County as a holder of perpetual conservation easements;

8) The BCCP has also designated the one-mile strip of Airport Rd from Rt 119 north to Pike Road as a View Protection Corridor. (Map 33)  It is apparent that Boulder County has thoroughly Corrupted the northern 1/2 mile of this VPC.  The views have been permanently obstructed by multiple housing developments. This is an undisputed violation of the approximately 15 BCCP provisions requiring the preservation of scenic views along this corridor. (pgs TR-6 TR 8.03,  ER-5 ER 1.04 etc.) In addition to the Kanemoto proposal for a high-density development with multiple-story buildings, Boulder County has continued violating the VPC with the recent approval of the Westview Acres subdivision.

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Map 33, View Protection Corridor. Pike Rd south to 119 is a VPC. Link to map PDF.

9) The BCCP applies a geologic building constraint (pg GE 2, Map 15) to the Kanemoto property due to High Soil and Bedrock Swell Potential.  Building approval requires evaluation by a professionally registered geologist.  (pg NH 2.01.04). Has Boulder County received a report detailing the building constraints required for this property?  Is this land suitable for safe housing construction?  If no clearance has been received approval to build on this property is forbidden.

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Map 15, Geologic Hazard & Constraint Areas. This maps shows the property is in a High soil swell area. Link to map PDF.

10) We are all aware of the absolute devastation caused by the recent Marshal Fire.  Rather than continue with a focus on high-density development, would it not be wise to reconsider the housing setback requirements?  The housing in Colorado is much too congested. 

11) Continuing research through the Boulder County Clerk's office has revealed a very significant number of missing Boulder County CEs over the last few decades.  Due to the issues mentioned above, there will be retroactive research to determine if this great number of terminated CEs were properly managed or if their termination was motivated purely to create a multimillion-dollar tax base and to feed multimillion-dollar funds into Boulder County POS.  The residents of Boulder County are questioning whether this may be a legal Breach of Trust concerning the fiduciary responsibility of Boulder County to protect and preserve the Landed Treasures of Boulder County.

Analysis of Boulder County Comprehensive Plan (BCCP)

Reference the Boulder County Comprehensive Plan (BCCP) here.

Both the original 1978 version and the current updated version of the BCCP were designed to limit urban growth to restricted areas and Preserve and Conserve Agricultural Lands.

There are 27 separate chapters/sections, 4 appendices, and 17 maps.  Most chapters/sections are referred to as Elements.  As many as 15 of those Elements reinforce the preservation of Boulder County Agricultural Lands. 

Primary Argument: The BCCP is focused on Compact Urban Growth and Continued preservation of Agricultural Lands, in particular Significant Agricultural Lands of National Importance.  

The BCCP designates Agricultural Lands granted Conservation Easements and NUPUD status for continued preservation.  The Kanemoto property is also a Significant Agricultural Land of National Importance.  In 1982, before Community Service Areas were established, having been granted a CE and NUPUD the Kanemoto property was never intended to be incorporated into the Longmont CSA.

In 1996 Boulder County and the City of Longmont committed a serious legal error in violation of the BCCP and Boulder Land Use Code when they incorporated the Kanemoto property into the Longmont CSA.

All statements above are supported by the extensive BCCP notations below. Pay close attention to Pages AG 1.02,01, Map 31, PPA-2, PPA-5 & PPA-2.04

Boulder County Land Use Code.  See paragraph B, Community Service Areas

1-300 Purpose and Relationship to the Boulder County Comprehensive Plan

Boulder County Comprehensive Plan Selected Notes

I  Introduction, page IN-1

The Boulder County Comprehensive Plan (BCCP) reflects Boulder County’s tradition of serving as a leader in environmental and land stewardship. The BCCP was developed to respond to the principle that the county will make decisions affecting the future of the county’s lands. Since its initial adoption in 1978, the Plan has changed very little; the county’s vision is to channel growth to municipalities, protect agricultural lands, and prioritize the preservation of our environmental and natural resources in making land use decisions. 

II  Guiding Principles, pg GP-1

5) Maintain the rural character and function of the unincorporated area of Boulder County by protecting environmental resources, agricultural uses, open spaces, vistas, and the distinction between urban and rural areas of the county.

III  Countywide Goals, pg CG-1 & 3 & AG-4

Cluster Development. Future urban development should be located within or adjacent to existing urban areas in order to eliminate sprawl and strip development, assure urban services, preserve agriculture, forestry, and open space land uses,

pg CG -2

Appropriate Rate of Growth. Existing communities should grow at whatever rate they consider desirable, within the limits of what is acceptable to the citizens of areas potentially affected by that growth

pg CG-3

Foster a Diverse Agricultural Economy. Agricultural enterprises and activities are an important sector of the Boulder County economy and the county shall foster and promote a diverse and sustainable agricultural economy as an integral part of its activities to conserve and preserve agricultural lands in the county.

Conserve & Preserve Land. Productive agricultural land is a limited resource of both environmental and economic value and should be conserved and preserved

pg CG-5

Open Space. Conserve. Boulder County conserves the rural character of the unincorporated county by protecting and acquiring lands and waters embodying significant open space values and functions.

I  Agricultural Element.  Covers 6 pages of the BCCP

pg AG -1

A. Introduction  Agricultural Land is a non-renewable resource. Once public and private decisions are made that result in the conversion of agricultural land and/or water to non-agricultural uses, this vital resource is almost always irretrievably lost. 

pg AG-2

In the 1978 Comprehensive Plan, the county adopted a non-urban planned unit development process (NUPUD) offered landowners a development density of two dwellings per 35 acres. In return, at least 75% of the total acreage had to be deeded to the county in the form of a conservation easement which restricted activity on the easement to agriculturally related or other rural land uses in 1994 through the adoption of the Plains Planning Area Element. That Element refocused the county’s policies and intentions for managing unincorporated Plains lands by emphasizing that land uses “...should continue to be related to agricultural activities and other activities consistent with the rural character of the county.” 

pg AG-3

B. Agricultural Objectives. The objective of the subsequent policies is the preservation of the agricultural lands in the county, and their related uses, by whatever means are available to the county and effective in achieving this end.

It remains the intent of the Comprehensive Plan and attendant land use codes to promote and assist in the preservation of agricultural lands for agricultural and other rural purposes. They include the recognition of agricultural lands as an important nonrenewable resource the belief that compact urban development is the most efficient and appropriate way to retain agricultural lands and rural character.

pg AG-4

Goal 2. Foster a Diverse Agricultural Economy promote a diverse and sustainable agricultural economy as an integral part of its activities to conserve and preserve agricultural lands in the county.

Goal 3. Conserve & Preserve Land. Productive agricultural land is a limited resource of both environmental and economic value and should be conserved and preserved.

POLICIES AG 1.01 Agricultural Land Preservation. It is the policy of Boulder County to promote and support the preservation of agricultural lands and activities within the unincorporated areas of the county, and to make that position known to all citizens currently living in or intending to move into this area.

AG 1.02.01. & 1.0. It is the policy of Boulder County to encourage the preservation and utilization of those lands identified in the Agricultural Element as Agricultural Lands of National, Statewide, or Local Importance and other agricultural lands for agricultural or rural uses. The Boulder County Comprehensive Plan “Significant Agricultural Lands” map shall include such lands located outside of the boundaries of any municipality. 

BCCP Map 31 designates the Kanemoto property as a Significant Agricultural Land of National Importance.  Agricultural Lands of National Importance are U.S. Department of Agriculture Prime Farm Lands. 

This link will take you to the USDA soil maps where the Kanemoto property is designated as Prime Farmland except where the two houses have been built.  You may need to zoom in on area CO643. Then click on the property sections and read Map Unit Data drop-down list on the left side of the page.

AG 1.04. Development Review. In reviewing applications for new development, Boulder County shall consider potential impacts on existing adjacent agricultural uses and shall use its regulatory authority to mitigate those impacts that would be detrimental to the continuation of existing agricultural operations and activities and the establishment of new agricultural operations and activities. New development should be sited in such a way so as to minimize and/or prevent future conflicts.

pg AG-5

AG 1.07 State, Federal, and Local Programs. The county shall continue to actively participate in state, federal, and local programs directed toward the identification and preservation of agricultural land.

Position statement from USDA Prime Farmland website.

Prime farmland is of major importance in meeting the Nation's short- and long-range needs for food and fiber. Because the supply of high-quality farmland is limited, the U.S. Department of Agriculture recognizes that responsible levels of government, as well as individuals, should encourage and facilitate the wise use of our Nation's prime farmland.

https://efotg.sc.egov.usda.gov/references/public/LA/Prime_and_other_Important_Farmland.html

AG 1.12 Land Unification. The county shall continue to discourage the fragmentation of large parcels of agricultural land and to encourage the assemblage of smaller parcels into larger, more manageable, and productive tracts.

AG 1.13 Policy and Code Management. The county shall continue to monitor the application of these policies and attendant Boulder County land use codes, as to their effectiveness in preserving agricultural land and perpetuating agricultural uses in Boulder County.

The use of the word, Perpetuating, is very important.  This confirms that the BCCP intended to Preserve and Conserve Agricultural Lands indefinitely.  See the American Heritage Dictionary definition:

perpetuate

pər-pĕch′oo͞-āt″

Transitive verb

1. To cause to continue indefinitely; make perpetual.

2. To prolong the existence of; cause to be remembered.

3. To make perpetual; to cause to endure, or to be continued, indefinitely; to preserve from extinction or oblivion; to eternize.

The American Heritage® Dictionary of the English Language, 5th Edition.

pg AG-6

AG 2.01 Utility Infrastructure. The county shall discourage the placement of new utility infrastructure upon agricultural lands. The county supports using existing easements or other public rights-of-way to minimize the impacts to agriculturally productive land.

AG 2.01.03. Any agricultural lands and water resource systems disturbed by infrastructure construction shall be restored to their former productivity.

IV Economic Element

pg EE-2

EC 1.03 Agriculture. Boulder County acknowledges the importance of agriculture and its cultural, environmental, health, economic, and resilience-related benefits to the community. Boulder County recognizes the integral role of agricultural history in the county and supports innovation and diversification in the agricultural economy. 

IX Natural Hazards Element

pg NH-4

NH 2.01.04 (Also Policy GE 1.05). The county shall require the evaluation of all geologic hazards and constraints where such hazards or constraints may exist in unincorporated areas of the county as related to new intensive uses. Such evaluations shall be conducted by either a member of the American Institute of Professional Geologists, a member of the Association of Engineering Geologists.....

VII Geology Element

pg GE-2 

Geologic Constraint: A geologic condition which can cause intolerable damage to structures, but does not present a significant threat to health, life, or limb.

Map 15. Geologic Hazards and Constraint Areas. Kanemoto Estates has a Geologic building constraint due to a High soil and bedrock swell potential.  Has it been properly evaluated and approved by a geologist for site development?

pg GE-8

GE 4.02 Priorities for Most Effective Performance Technologies and Practices. Areas where the county has an interest in assuring that the most effective performance technologies and practices are applied include....j) Agricultural land preservation.....o) Visual impacts and preservation of scenic views.

pg GE-10

GE 4.11 Agricultural Land Restoration and Reclamation. Agricultural land preservation and conservation is a core goal and value of the BCCP. Oil and gas operations will be required to restore and reclaim all on and off-site agricultural lands impacted by any activity.....

X Open Space Element 

pg OS-1  (See Agriculture Goal 3 above.  To Conserve and Preserve Agricultural Lands)

What’s in a Word? Protect v. Preserve v. Conserve Open space lands are “protected” from development but protection can be carried out in different ways. “Conserve” suggests responsible and sustainable use of natural resources whereas “preserve” implies maintaining the landscape in its original, or pristine, state. In the Open Space Element policies, “conserve” is used for policies relating to working landscapes such as agricultural properties while “preserve” is used for policies relating to broader protection.

pg OS-2

Open space is defined as “lands intentionally left free from development.” Open space serves one or more of the following values or functions

Conserve and enhance agricultural lands, especially agricultural lands of local, statewide, and national importance.

Boulder County Parks & Open Space Mission Statement To conserve natural, cultural and agricultural resources and provide public uses that reflect sound resource management and community values. 

XIII Sustainability Element

pg SU-1

A. Introduction The verb “sustain” is defined in Webster’s Third International Dictionary as meaning “to cause to continue…to keep up especially without interruption

pg SU-6

Goal 6. Foster & Promote Resources of Open & Rural Lands. The preservation and viability of the increasingly precious resources of open and rural lands, whether devoted to agriculture, forestry, open space, or plant and wildlife habitat, as well as the sustainability of uses that provide for the long-term preservation of such lands, should be fostered and promoted....

pg SU-8

SU 1.09 TDR Program Criteria. In establishing this new TDR program, the county, through an open public process, will develop criteria....and should take into consideration the following attributes:

• Location as an enclave within or adjacent to BCCP-designated Environmental Conservation Areas, United States Forest Service or other publicly held lands, or lands with a conservation easement protecting them from further development

I  Plains Planning Area

pg PPA-1

Introduction....recommend a rational organization of land uses which will protect and preserve some of the county's remaining rural land....

pg PPA-2

It is expected that land within municipal Community Service Areas will be developed in an urban pattern, urban services will be provided by the municipalities, and the area will eventually be annexed. Conversely, land outside CSAs and their transition areas will remain rural; urban services will not be extended there, and zoning will prohibit urban development and densities. Most of the land outside the CSAs will continue to be used for agricultural activities, environmental resource protection, low-density residential development and other activities consistent with the rural character of the county.

VERY IMPORTANT:  The Kanemoto property was issued a NUPUD (PPA 2.04) and Conservation Easement (PPA 2.03) in 1982 because it was NEVER intended to be within the Longmont Community Service Area.   As stated above, Urban Development is Prohibited.

In April of 1978, the Boulder County Comprehensive Plan (BCCP) was adopted. A primary component of the Plan included policies calling for the establishment of a minimum 35 acre-lot size in most

unincorporated areas outside CSAs, consistent with Senate Bill 35. Recognizing that this was authorizing a dramatic shift in land use regulations that would have its greatest direct impact on the farming community, the Plan’s policies also called for the creation of the NonUrban Planned Unit Development, or NUPUD. This land use option, requiring discretionary review an action by the county Commissioners, permitted density bonuses on parcels of 35 acres and larger so that the farmer would have an economic incentive, through a limited subdivision process to keep a major part of his or her land in agricultural production while conveying small land parcels to other interests. Accordingly, land use regulations and a comprehensive rezoning were adopted to implement the Plan’s policy direction.

pg PPA-3

ISSUES  Loss of Agricultural Lands & Open Space. Land valuable for agriculture, wildlife habitat, flood control and other natural resources may be jeopardized. In addition, the county has consistently lost agricultural operations and farmland to both development pressures and annexations.

pg PPA-4

POLICIES  

PPA 1.01 Geographic Scope and Vision for Plains Planning Area. Land located outside CSAs and east of the Forestry zoning district, should be designated as the Plains Planning Area, and should remain rural. Urban services should not be extended into the Plains Planning Area, and zoning should continue to prohibit urban development and densities. Land uses within the Plains Planning Area should continue to be related to agricultural activities, environmental resource protection, low density residential development and other activities consistent with the rural character of the county.

PPA 1.03 Guidelines for Land Use Proposals...

b) Preservation and utilization of agricultural lands, or when applicable, the preservation of other environmental resources

d) Minimizing potential negative impacts on surrounding lands, including agricultural land, attendant agricultural uses, and established neighborhoods and other adjoining or nearby development and land uses.

pg PPA-5

PPA 2.03 Conservation Easements. Conservation easements pursuant to CRS 38-30.5-101 through 110, as amended, or other legally accepted methods between the county and landowners, should continue to be the acceptable development control, for the purpose of preventing additional parcel division or development of lands committed for agricultural activities, environmental and historic resource protection, and other activities consistent with the rural character of the county.

PPA 2.04 NUPUD and NCNUPUD Proposals. NUPUD & NCNUPUD proposals should only be supported in the Plains Planning area as a means of preserving and conserving large tracts of land identified in the Boulder County Comprehensive Plan as possessing significant environment features, including but not limited to significant agricultural land and sensitive or important ecosystems.

PPA 3.04 Location Limits for Proposals. Except as provided for in PPA 3.05, land use proposals requesting additional density as receiving sites through the density transfer process should not be located on Nationally significant agricultural land, sensitive areas, critical wildlife habitats or corridors, designated open space, or other lands and locations as from time to time identified.

IV Longmont, Lyons  Subregion  Specific to the Longmont Community Service Area.

pg LO-2

LO 1.02 Designation and Protection of Agricultural Land Uses. It is the policy of Boulder County to designate the character and form of land uses within the Subregion (outside of the adopted Community Service Areas) as being agricultural in nature and to project continual agricultural usage throughout the planning period. Future land use decisions that occur outside of designated Community Service Areas shall be consistent and harmonious with the agricultural character of the land and with the provisions of the Agricultural Policies of the Plan, including those specifying non-urban residential density

LO 1.03 Resolving Conflicts Between Existing Zoning and Future Land Use. Many land use and zoning decisions have been made in the past 12 years without the use of a comprehensive plan to guide in the formulation of such decisions. With the development of the goals and policies of the Boulder County Comprehensive Plan, it is clear that many past decisions now conflict with the underlying plan objective of channeling urban growth into Community Service Areas while preserving the surrounding agricultural land. To rectify these obvious conflicts between existing zoning and future land use, it is the policy in this subregion to modify the existing zoning pattern to reflect the present and future use of the county’s agricultural lands.

7) View Protection Corridor from BCCP 

Map 33.  About one mile of Airport Road from Pike Rd south to Rt. 119 was designated as a View protection Corridor.  An approximately one half mile section from Pike Road south has been severely compromised. Both the Kamemoto property and the West View Acres property are along this corridor. Do we have legal grounds to challenge Boulder County to prevent further development due to this issue? See photos below. 

pg PH-3

1992:  Establishment of view protection overlay district 

1994:  Established Natural Resources View Protection Overlay District 

pg OS-2

Conserve the rural character of the unincorporated county, scenic corridors, and community buffers to ensure community identity and prevent urban sprawl 

pg OS-5

OS 1.02.01. To the extent possible, the county shall avoid, minimize, or mitigate impacts on views from view protection corridors including, but not limited to, those shown in the mapping that accompanies this element. 

pg TR-4

TR 6.01 Manage Rural Roads to Preserve Rural Character. 

• minimize adverse scenic and environmental impacts,

pg TR-5

TR 6.03 Prohibit Improvements with Unacceptable Impacts. After considering reasonable mitigation, transportation system facilities and access improvements may be prohibited. This may include improvements on public and/or private lands that cause unacceptable impacts on the natural environment, including scenic views and rural character.

pg TR-6

TR 8.03 Preserve View Corridors. Prevent the disruption of scenic views by transportation improvements. Promote overlooks, trails, and turnouts on recreational routes and in unique scenic areas.

pg CW-5

6. Protect Natural Landmarks. Boulder County shall continue to protect prominent natural landmarks and other unique scenic, visual, and aesthetic resources in the county.

pg ER-3

However, the single criterion for designation shall be its visual and scenic prominence as a landscape feature. They provide a record of Boulder County’s natural heritage. 

pg ER-4

Boulder County shall continue to protect prominent natural landmarks and other unique scenic, visual, and aesthetic resources in the county

pg ER-5

ER 1.04 Scenic Vistas. Scenic vistas shall be preserved as much as possible in their natural state.

pg GE-7-8

GE 4.02 Priorities for Most Effective Performance Technologies and Practices. Areas where the county has an interest in assuring that the most effective performance technologies and practices are applied include, but may not be limited to:

a) Visual impacts and preservation of scenic views

pg SMM-4

b) Ensure that facilities or operations are planned, located, designed, and operated to prevent and divert unacceptable air, water, noise, and visual pollution

pg SU-7

Goal 10. Protect Natural Assets. The county’s rich and varied natural features, scenic vistas, ecosystems, and biodiversity should be protected from further intrusion, disruption, consumption, and fragmentation.

SU 1.02 TDR Program Objectives. This TDR program should consider facilitating the attainment of any or all of the following objectives: 

• preserving vacant lands identified in the Comprehensive Plan as having significant environmental, agricultural, visual, or cultural values;

• protecting and securing scenic corridors and vistas;

pg SU-9

SU 1.12 Structure Size Limitation Analysis. An analysis should be conducted to determine whether the regulation of structure size is appropriate to meet the stated goals of the Comprehensive Plan...locations within the unincorporated areas relative to existing development patterns, established rural character, scenic/natural/resource values, and visual impacts.

pg PPA-3

Rural Character & Visual Impact. There has been a perceived loss of rural character and visual intrusion to the scenic qualities of the county due to an inconsistency in scale between new and existing development and the siting of development on ridges, mesas, and other prominent landscape features.

Photos taken along Airport Rd, looking west, walking north 1/2 mile to Pike Rd. The view of Long's Peak is obstructed.

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Boulder County Land Use Code (BCLUC) is Binding Law

There are 152 references to the BCCP established in the Boulder County Land Use Code. Many of these references are part of the Zoning regulations and are now Binding Law. 

In particular please note 

1. Section 6-800:  It appears, Conservation Easements require perpetuity and termination requires conformance with the Current BCCP and the Boulder Land Use Code.  The Current code requires perpetuity for NUPUD/CEs.

2. Section 6-500 & 6-700:  Should the County continue to honor the TDR/IGA:

   1. TDR sites are forbidden on Nationally Significant Agricultural Lands.  

   2. The total number of units is limited to a maximum of 200.

   3. The inclusion of the Kanemoto property in the Longmont CSA was a legal error.  Subdivided lots recorded prior to August 17, 1994 are not allowed into TDR receiving sites. (6-700 J-3)

   4. Section 30-28-106 of the Planning Act....... 2007 amendment to the Act provides that master plans are advisory until the county makes them binding by inclusion in its "subdivision, zoning, platting, planned unit development, or other similar land development regulations . . . ." Ch. 165, sec. 1, § 30-28-106(3)(a), 2007 Colo. Sess. Laws 612.

   5. The very first item of discussion in the current Boulder County Land Use Code (January 5, 2023 ) is found on page 1-2, The development of the Land Use Code in 1994 is founded on the 1978 BCCP.

Boulder County Land Use Code.

Section 1-300 Purpose and relationship to the Boulder County Comprehensive Plan.

A) .....Enactment, amendment, and administration of this Code shall be in accordance with and shall serve to implement the goals and policies of the Boulder County Comprehensive Plan,.....

B)  ......the County Planning Act shall be considered to be, without limitation, and in accordance with Section 1-300.A of this Code: ......fostering agricultural and other industries (which, in accordance with the Comprehensive Plan, are primarily rural in nature).......in accordance with the Comprehensive Plan, ensuring that unincorporated lands outside of community service areas remain rural in nature)....open and rural land preservation,......

Section 1-1400 pg 1-4 Other Plans, Rules & Regulations Cited in this Code

A. In addition to the requirements specifically established within this Code, the following plans, rules, and regulations may contain additional requirements:

4. the Boulder County Comprehensive Plan (the ‘Comprehensive Plan’) adopted pursuant to Article 28 of Title 30, C.R.S., and comprehensive development plan intergovernmental agreements affecting land use in the unincorporated County as they may be entered into pursuant to Article 20 of Title 29, C.R.S.;

Section 3-204 Referral Requirements and Agency Review

C 9. The County Community Planning & Permitting Department shall evaluate the application for conformance with the Comprehensive Plan, any applicable intergovernmental agreement affecting land use or development, this Code, sound planning and design practices, and comments from the referral agencies and individuals.

Section 4-115  Rural Community (RC) Districts

A. Purpose: To encourage flexibility in the land use patterns of established rural communities in order to achieve the objectives of the Boulder County Comprehensive Plan.

Section 4-409 Variances 

E. Review Criteria. 

1. To grant a variance of a requirement imposed under this Article 4-400, the Board must find that all of the following criteria have been satisfied:

d. the variance, if granted, will not change the character of the underlying zoning district in which the property is located, and is in keeping with the intent of this Code and the Boulder County Comprehensive Plan;

Section 4-514  Utility and public Services

F. Major Facility of a Public Utility

5 d. Power plants cannot be located on areas with the following Boulder County Comprehensive Plan designations: Agricultural Lands of National Importance, Agricultural Lands of Statewide Importance, Agricultural Lands of Local Importance, Natural Landmarks and Natural Areas, or Critical Wildlife Habitats

K. Small Wind-Powered Energy System

5 e (i) Comprehensive Plan designations. This use shall not have a significant adverse visual impact on the natural features or neighborhood character of the surrounding area. Particular consideration to view protection shall be given to proposals that would be visible from areas designated Peak-to-Peak Scenic Corridor, View Protection Corridor, and areas within the Natural Landmarks and Natural Areas and buffers as designated in the Boulder County Comprehensive Plan.

Section 4-601  Review Criteria

A. A use will be permitted by Special Review or Limited Impact Special Review only if the Board finds that the proposed use meets the following criteria as applicable:

3. The use will be in accordance with the Comprehensive Plan;

12. The use will not result in unreasonable risk of harm to people or property......from natural hazards. Development......must avoid natural hazards, including those on the subject property.....Natural hazards include, without limitation, expansive soils or claystone, subsiding soils......all as identified in the Comprehensive Plan Geologic Hazard and Constraint Areas Map....(See Map 15)

Section 4-700  Administrative Reviews

4-701 Purpose

A. Administrative review is a review procedure for certain types of proposed development that are deemed in advance to not cause significant conflict with the Boulder County Comprehensive Plan and ensure compliance with the development standards of the County.

Section 4-806 Site Plan Review Standards

8. The development shall avoid agricultural lands of local, state or national significance as identified in the Comprehensive Plan.

13. The development shall avoid Natural Landmarks and Natural Areas as designated in the Goals, Policies (pg AG-4 Goal 3 etc..conserve and preserve Agricultural Lands) & Maps Element of the Comprehensive Plan and shown on the Zoning District Maps of Boulder County. (Map 27 CE, Map 31 Sig Ag Land,  Map 33 VPC).

15. The proposal shall be consistent with the Comprehensive Plan, any applicable intergovernmental agreement affecting land use or development, and this Code.

Section 4-1300  Expanded TDR Program and Structure Size Thresholds for Single Family Uses.

3. These regulations are adopted to implement the goals and policies in the Sustainability Element of the Boulder County Comprehensive Plan. Those goals and policies include: 

a. Preserving the rural character of unincorporated Boulder County, especially those areas with particular historic or contextual character;

c. Allowing for the impacts of larger scale home development to be offset through the preservation of vacant land and smaller scale residential development elsewhere in the County;

e. Promoting and preserving vacant land by creating incentives for property owners to leave land undeveloped.

Section 5-102 Standards and Conditions for Sketch Plan Approval.

A. The Planning Commission and the Board of County Commissioners shall not approve a sketch plan proposal until the applicant has adequately shown that the proposal meets the following:

4. The development proposal conforms with the Comprehensive Plan, any applicable intergovernmental agreement affecting land use or development, and this Code.

Section 6-100 Planned Development Districts. Introduction and Purposes.

D. In addition to those purposes outlined within these Regulations, NUPUD, NCNUPUD, and TDR/PUD submission, review, and action shall be guided by the following objectives: 

1. To accomplish the preservation of those lands identified within the Boulder County Comprehensive Plan as agricultural lands of National, Statewide, and Local Importance and other valuable agricultural lands; to accomplish such preservation through the strategic and planned location of subdivided lots. 

2) To accomplish the preservation of those natural and cultural resources as identified in the Cultural and Environmental Resources Elements of the Comprehensive Plan; to accomplish such preservation through the strategic and planned location of subdivided lots. 

3. To offer density bonus as an incentive to discourage the development of valuable agricultural and other resource lands in Boulder County. 

4. To offer the NUPUD and TDR/PUD processes as a viable alternative to municipal annexation for development purposes.

Section 6-400 Non Urban Planned Unit Development.

A. Purpose: A residential PUD consisting of subdivided land which may allow for an increase in density from one dwelling unit per 35 acres......in order to preserve agricultural, environmental, or open space resources. The mechanism to preserve these resources is a conservation easement held by Boulder County on that portion of the subdivided land platted as an outlot, which may not be developed for residential use

B. Requirements 1. Area a. A NUPUD must contain an area.....of which 75% or more is covered by one or more of the following designations identified for preservation in the Boulder County Comprehensive Plan: agricultural lands of state or national significance, designated open space, critical wildlife habitats and corridors.

Section 6-500 Noncontiguous Nonurban Planned Unit Development.

A. Purpose: A Noncontiguous Nonurban Planned Unit Development (NCNUPUD) is a NUPUD which allows for a transfer of density from a sending area to a receiving area in order to protect specific agricultural, environmental, or open space resources.

B. A NCNUPUD is a type of NUPUD and shall meet the NUPUD requirements, except as modified by the following additional requirements.

7. Receiving Area 

a. No more than 50 percent of the receiving area shall be used for development, unless further restricted below. 

b. A receiving area which contains lands designated in the Comprehensive Plan as Agricultural lands of Nationwide Importance, a natural or cultural resource, or proposed open space shall not be permitted unless: 

(i) no more than 25 percent of the receiving area is used for residential development; and 

(ii) the development shall in no way be detrimental to the continued agricultural use of the remaining preserved area, to any significant natural or cultural resource, or to the open space values which support the proposed open space designation.

Section 6-700 TDR Planned Unit Development.

D. Zoning Requirements: The uses approved as part of a TDR/PUD shall be limited to the following: 

2. Residential TDR/PUDs: Residential development rights may be transferred from any designated sending site in the A, RR, ER, and SR zoning districts, to any approved residential receiving site meeting the applicable criteria for receiving sites under these regulations. The maximum allowable total units within a residential TDR/PUD shall be 200.

G. Standards and Conditions of Approval for Development on a Receiving Site: A PUD utilizing transferred development rights shall be approved only if the Board of County Commissioners finds that the proposed development meets the following standards and conditions: 

3. Except as provided in 6-700(G)(7), below, receiving sites shall not be located on national significant agricultural land, designated open space, environmentally sensitive lands, or critical wildlife habitats or corridors, as identified in the Comprehensive Plan 

J. The following parcels will not be considered for a TDR/PUD receiving site:

3. A subdivided lot shown on a plat recorded prior to August 17, 1994, the date of the first public notice of Planning Commission consideration of these regulations.

Section 6-800  Conservation Easement.

A. Before the Board of County Commissioners may approve a NUPUD, a NCNUPUD, or a TDR/PUD the applicant shall agree to grant to Boulder County a deed of conservation easement in gross pursuant to Article 30.5 of Title 38, C.R.S., as amended, protecting the preserved land from development in accordance with the approved conservation values. Conservation easements encumbering required outlots shall provide for long-term preservation and appropriate management of the property's conservation values and shall be granted in perpetuity, subject to transfer or termination only pursuant to the express terms of these regulations and the governing conservation easement. 

B. The conservation easement shall include the following terms: 

1. The easement shall limit future County termination of the easement to situations where: 

a. the termination is consistent with the current Comprehensive Plan and this Code; and 

b. the termination is consistent with a management or land use plan contractually agreed to by the County and another interested governmental entity or entities.

6-1000 Standards and Criteria for Approval of Planned Unit Development.

A. The PUD shall be approved only if the Board of County Commissioners finds that the development meets the following standards and criteria: 

5. the development will be in accordance with the Comprehensive Plan, and any applicable intergovernmental agreement affecting land use or development; 

8. undue traffic congestion or traffic hazards will not result from the proposed PUD; roadways, existing and proposed, are suitable and adequate to carry anticipated traffic within the proposed PUD and in the vicinity of the proposed PUD;

10. detrimental conditions will not result due to development on excessive slopes or in geologic hazard areas; 

Section 7-200  Development Design.

A. The following shall be considered requirements for development design.

14. The overall development design should conform to the Comprehensive Plan.

Section 8-508  Referral Requirements.

12. The County Community Planning & Permitting Department shall evaluate the application for conformance with the Comprehensive Plan, these regulations, sound planning, and comments from the referral agencies and individuals.

Section 8-511 Standards for Approval of a Permit Application

B. Standards for approval of all permit applications
4. The proposal will not cause unreasonable loss of significant agricultural lands as identified in the Comprehensive Plan, or identifiable on or near the site.

A few supporting references from the BCCP analysis, 1-18-23 email.

Pg IN-3   C) Relationship Between the Plan (BCCP) & the Boulder County Land Use Code.

Review criteria for land use approval processes within the Boulder County Land Use Code (e.g., the Site Plan Review, Special Review and Limited Impact Special Review processes) require that proposed uses be consistent with the Plan

pg PPA-2 (upper left)    ......land outside CSAs and their transition areas will remain rural; urban services will not be extended there, and zoning will prohibit urban development and densities
pg PPA-3 (upper left)   Accordingly, land use regulations and a comprehensive rezoning were adopted to implement the Plan’s policy direction.

pg PPA-3 (center left)  .....the NUPUD process and the comprehensive rezoning of rural areas outside Community Service Areas during 1985-1986 were implemented.... 

(Kanemoto was not within a CSA until 1997.  The 1985-1986 rezoning protection indicates the placement of the Kanemoto property into the LPA/CSA as a legal error.)

pg PPA-4 1.01   Urban services should not be extended into the Plains Planning Area, and zoning should continue to prohibit urban development.

Boulder County Commissioner Hearing archive

Click here to watch past Boulder County Kanemoto videos.