The rubber meets the road on Ballot Question 300

On Jan. 27, almost three months after Ballot Question 300 passed, voters got their first glimpse of how Ordinance 11-25 will transform land-use decisions.

Ballot Question 300 asked whether “all applications, motions, or requests for rezonings and/or all planned unit developments (PUDs) will not be approved without written approval by the record owner(s) of the subject property/properties and two-thirds (2/3) of the record owner(s) of all properties five hundred feet (500 feet) or less from the outermost boundaries of the subject property/properties.”

At the Jan. 27 town board meeting, the first three land-use decisions under Ordinance 11-25 were up for consideration: two rezonings and an annexation-associated zoning.

The rezoning at 440 Valley Road was intended to correct past bureaucratic mistakes and bring their zoning into line with long-established use.

The rezoning at 179 Stanley Circle would have allowed about 10 townhouses at the edge of a single-family neighborhood across Stanley Avenue from the Holiday Inn parking lot. The plan was to build low-cost housing for town employees, a likely win for the community, though nearby property owners were concerned about higher density creeping into their neighborhood.

The last zoning was for Elkhorn Lodge Phase II, a plan to build two 110-room hotels and about 80 additional units on a remote, 40-acre parcel atop Deer Ridge. To facilitate this, the developer asked for annexation into the town, followed by “A: accommodations/highway corridor” zoning. This proposal was highly controversial, with objections boiling down to “preserve our wildlands,” “out of context/out of scale,” “housing, not hotels,” and contrary to the community vision laid out in the Estes Park Comprehensive Plan.

The Estes Park Planning Commission recommended approving the first two rezonings, if that were permissible under 300, and denying the Elkhorn Lodge Phase II “A” zoning.

The town board determined that Ballot Question 300 applied to the two rezonings, but not the annexation-associated zoning. They denied the two rezoning applications because neither had obtained consent from two-thirds of nearby property owners, as required by 300. The board members were very clear that they wanted to approve these rezonings, but they could not because 300 tied their hands. They then approved the Elkhorn Lodge Phase II “A” zoning.

Most reasons for approval were not clearly stated. However, Trustee Brown expressed concern that, unless this zoning were approved, Estes Park would get a reputation as a locale that blocked all development. Mayor Gary Hall echoed this with, “Change is inevitable.”

From where I sat watching these proceedings, it looked like 300 has made land-use decisions worse, not better. Two “deserving” rezonings were denied. Then, frustration with those forced denials tipped the balance in favor of approving a questionable zoning.

Is this what voters wanted when they passed 300?

From my perspective, the votes for 300 and against 301 make sense in the larger context of the Community Conversations held last fall on the Development Code update. It’s not that most citizens oppose low-income housing or redevelopment; it’s that they don’t feel heard in our land-use decisions. They feel that their voices do not receive the same weight as pro-development voices.

Ballot Question 300 was an attempt to rebalance the influence of neighborhood concerns in land-use decisions. Unfortunately, 300 as written presents several problems:

1. The language is ambiguous. When properties have multiple owners, does the two-thirds consent mean consent of at least one owner for two-thirds of properties? Or does it mean consent of two-thirds of the aggregate of all property owners?
2. Two-thirds consent is a very high bar, especially given that many properties in Estes Park are owned by trusts, LLCs, and/or have out-of-town owners.
3. Placing land-use decisions in the hands of a few private citizens almost certainly violates the due process clause of the 14th Amendment. “Standardless delegation of authority” to those not constrained to act in the “legitimate public interest” opens the door to decisions based on “selfish and arbitrary reasons” that have nothing to do with the public good.

Where to from here?

While it stands, 300 will effectively halt all rezonings and PUDs. Property owners like those at 440 Valley Drive will be denied justice. There will be little new housing; Estes has already built most of what could be built under existing zoning. Housing prices will continue to spiral and the housing shortage will get worse. New development will be driven outside of town limits, paving over rugged terrain and wildlands at the edges of the valley. This is not a good scenario.

The odds are good that 300 will be challenged in court by someone denied a rezoning, and then it will be struck down as unconstitutional. That will cost taxpayer dollars and leave voters with little beyond bitterness that they are being shut down. This is not a good scenario.

What about writing a replacement for 300 that clarifies ambiguities and does not violate the 14th Amendment? Let’s hold serious community conversations about how to amplify neighborhood voices in community-wide decisions. Is there a reasonable bar for consent-for-approval? Or should it be objection-for-disapproval? Let’s reach for a compromise where everybody gives a little, and nobody loses everything. This could be a winning scenario.

Imagine if the community, from the town board to EPHA to neighborhoods and resident associations, could come together on a new-and-improved 300 that protects property rights, amplifies the voices of neighbors, and leaves room for changes that provide substantial community benefits. Imagine Trustee Brown and Preserve Estes Park co-leading an effort to pass a new version of 300 that works for all parties. What a wonderful world it would be!