Land Development Regulations : Section 2 – Waivers (and related sections) Regulation Update Board of County Commissioners Hearing November 25, 2014

What is a Waiver? A ‘Waiver’, as currently used in the Land Development Regulations (LDR), is a way to allow relief from regulations or requirements, when strict compliance would be impossible, impractical or undesirable.

Waiver History Prior to 2005, all waivers were heard at a public hearing before the BCC. This hearing typically happened before the development application was submitted. In 2005, the LDR was amended to allow the Director of Planning & Zoning to grant most waivers. (Some waivers can only be granted by the BCC)

What are the current regulations? Waivers can be sought for submittal requirements, or for LDR requirements. Applicant can appeal a denial. Notice may be required. BCC cannot overturn a waiver granted by the Planning Director.

Why are we updating? Staff was asked to present revised regulations that would give the BCC to authority to overturn a waiver granted by the Director of Planning & Zoning.

Concerns with the BCC overturning waivers at the time of final hearing: Staff is concerned that by the time a plat is heard by the BCC, a significant amount of time, effort and money has been spent by both the applicant and staff. If a waiver granted early in the process gets overturned at the BCC hearing, the entire project may have to be redesigned.

Concerns with the BCC overturning waivers at the time of final hearing: A significant amount of time, effort and money has been spent before hearings If waiver is overturned, the entire project may have to be redesigned.

Why a complete overhaul? Staff decided to use this opportunity to revise the entire waiver section, with the intent on clarifying the regulations and to provide a method for appeals to occur earlier in the process, rather than waiting until the final BCC hearing.

Why a complete overhaul? Opportunity: Clarifying the regulations Provide for appeals earlier in the process

Summary of proposed changes: Rename the process Waivers of Submittal Requirements Clarify the Regulations Provide a method for relief

Rename the process: Process name changed to more accurately reflect the procedure. The applicant must propose alternate standards to those listed in the LDR, not simply ‘waive’ relevant standards.

Waivers of Submittal Requirements: Waivers of Submittal Requirements are now handled by the relevant section of the LDR. (this avoids potential inconsistencies)

Clarify the Regulations:

Provide a method for relief: Current regulations allow the applicant to appeal a denial. Current regulations do not specifically state that anyone can appeal an approval. Current regulations do not specifically allow the BCC to overturn an approved waiver.

Rather than have the BCC overturn ‘waivers’ at the time of final BCC hearing, staff proposes that all ‘waivers’ can be appealed. Appeal can be by any party Proper notice of ‘waiver’ is required Appeal must be sought within 30 days If waiver is not appealed within this timeframe, then the ‘waiver’ is final.

Rather than have the BCC overturn ‘waivers’ at the time of final BCC hearing, staff proposes that all ‘waivers’ can be appealed. Appeal by any party Notice of ‘waiver’ is required Appeal must be sought within 30 days or waiver is final

Other Minor Changes If the name change is approved, some sections of the LDR may need the term ‘waiver’ changed.

Public Outreach Public Meeting – June 25, 2014 Referrals sent to all registered HOAs, Special Districts, Regulation Review Team and developers listed in AMANDA (approx 400 people/agencies)

Public comments: 5 letters from developers/fire districts that oppose the BCC being able to overturn waivers.

Public comments: “The proposed process for obtaining approval of an alternative standard seems to be thorough and reasonable, with plenty of opportunity for a timely appeal of an approval if there is some objection. In most instances where an alternative is sought, it is imperative that the decision be made early in the design process, because the basic design of the project will be based on that alternative design method or standard.” - Fine Line Consulting

Public comments: “… this seems like a terrible idea. It strips the power away from the experts in the Planning and Zoning department who are hired to properly weigh the actual issues for a waiver and puts that responsibility on the Board, who is not necessarily trained in these areas. Additionally, it will have a chilling effect on development as minor issues that could have been considered to be waived before now will likely require a lengthy and costly public process.” - EVstudio

Public comments: “… I think that the bulk of the language is a marked improvement over that which currently exists, the proposed provision about the Board of County Commissioner‘s being able to overturn a Waiver decision made by the Planning Director at the time of public hearing does not appear to make sense and is problematic.” - Landform, Inc.

Public comments: “Is there a reason why the Board of County Commissioners has the final say for alternate methods requests to the LDR? How is the BCC qualified to render a ruling on a technical decision relating to the LDR?” - North Metro Fire Rescue District.

Recent Changes Clarify what must be submitted when appealing a waiver. “The appeal shall be in writing and shall state the specific reasons and evidence why the Director of Planning and Zoning’s decision regarding the alternative standards/requirements should be overturned. The appeal shall be submitted to the Planning and Zoning case manager. “

Recommendation Staff recommends APPROVAL (with conditions) of these regulation revisions The Planning Commission recommend APPROVAL (with conditions) of these regulation revisions Conditions are the red-marks, including striking B.4, the provision granting the BCC the power to overturn ‘waivers’.

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