Downtown Niwot moratorium extended

At what was potentially the final public meeting regarding the Niwot Rural Community District (NRCD) code update process on March 12, when Boulder County Commissioners (BOCC) could have approved land use staff’s proposed code updates for development in downtown Niwot, Commissioners Elise Jones, Matt Jones, and Deb Gardner instead chose to send the team back to the drawing board on several issues, thereby extending the six month moratorium on development by another month.

While commercial entities at first railed against the moratorium, which led to a host of proposed parameters for structures on 2nd Ave., the irony of their latest request to extend the moratorium was not lost. The twist in sentiment came about because, while it’s certain there will be a degree of code changes, the business owners wanted to impress upon the county that the layers of limits being offered are likely to have an adverse effect on the financial practicality of future projects. Commercial property owners walked away from the hearing with hope, but residents of 3rd Ave. were not at all happy with the outcome.

The genesis of the moratorium was discontent on the part of 3rd Ave. residents regarding how the Southpaw Commons project came to fruition in 2018. Three new residential units on the back of that development have garages and windows on the alley facing into 3rd Ave. residents’ backyards. Residents felt their input wasn’t sufficiently taken into consideration prior to the project’s approval, and in an effort to preserve the long-held privacy and calmness behind their homes, they reached out to land use staff for assistance. They didn’t, however, ask for the moratorium.

Boulder County’s statement regarding the initial enactment of the moratorium stated, “Staff and community stakeholders have identified several areas in need of clarification in the regulation language, including provisions regarding mixed-use development and a need to better understand and clarify the intensity of development appropriate within the NRCD. Neighbors have also raised concerns with the level of residential development allowed, density and design parameters and whether the NRCD regulations facilitate the appropriate mix of residential, retail, and office uses.”

The code update process during the moratorium has included eight public meetings thus far, and resulted in proposed provisions addressing both the designated historic area of the NRCD and the non-historic area with specifications for design elements, setbacks from property lines, lot coverage, height limits, and FAR (floor area ratio - the percentage of above ground square footage to lot size).

Using FAR was the most quarrelsome section of the proposed code for business stakeholders. Limits on FAR are not being proposed for the historic portion of the NRCD. However, the area most rife for future development, Block 5 (the northern block of 2nd Ave. between Franklin Street and Niwot Road), would be limited to a FAR of 0.6.

Tim Coonce, owner of Porchfront Homes on 2nd Ave. said, “What these regulations really represent are a 15 percent reduction in potential development of each lot. I would say, continue this moratorium and let’s get this right.”

Although the planning commission had removed the only line in the proposed changes addressing the use of the alley (“Where alley access is available, curb cuts should not be permitted”) in a public hearing on Feb. 20, Land Use Department Director, Dale Case said, “We recognized that opening up the alley to some access made sense in order to meet other goals.” As a result, Case said his staff recommends leaving that line in the code amendments.

Block 5 has been a primary focus throughout the moratorium and curb cuts on that block, where vehicles pass over the sidewalk to access parking, have been of particular interest. Case explained the goal of reducing curb cuts is to allow for better walkability, pedestrian safety, and to provide additional parking spots in front of each business. Reducing curb cuts would necessitate that vehicles be allowed to use the contentious alley between residential and commercial areas.

Case explained that if the new codes are adopted, proposed new developments on 2nd Ave. would have access to their property through the alley and “property owners would be required to bring it [the alley] up to transportation standards in order to get their project approved.” Case also said staff is recommending that landowners wanting to get rid of existing curb cuts should have a means to modify their access through the alley.

Following Case’s synopsis of the code recommendations, 31 public commenters came to the microphone. Eighteen of the speakers had a direct connection to commercial entities in Niwot, 12 speakers were residents of the town (eight of whom live on 3rd Ave.), and there was one speaker with no ties to town. Nine comments were in support of the code changes as proposed, 20 speakers said the suggested codes were too restrictive, and two didn’t speak directly to the proposed codes.

Third Ave. resident Victoria Keen said of safety concerns for pedestrians crossing curb cuts, “There’s no pedestrian study to back this up nor have there been any accidents reported over the past 20 years, yet Boulder County seems to be backing up their decision to open up the alley based on this unsubstantiated claim.“

Laura Skaggs, a Niwot resident and LID board member, expressed her dismay that the “hardest problem,” the alley issue, has been “completely avoided” by the code amendments.

Skaggs said, “Has all the regulatory brouhaha been conjured up to obscure this main issue? Are the FARs, the setbacks, the lot coverage, the array of revised code details, are these serious sounding pretexts as retro-active cover to justify the moratorium? Because not all that much was broken in Niwot, but now a lot is broken in town - our trust, our relationships, the life blood of a small town.

“You have put neighbors, landowners, volunteers, in an awful position. We are seen as choosing sides, while you, our local government should accept responsibility to explain and enforce the legal rights that go with the alley. Sometimes private interests have to yield to public rights and the alley was always a matter of public use and public right. It is established in Colorado law that no one can create any right of adverse possession of public property.“

Concerning the alley behind his 3rd Ave. house. resident Dave Snow said, “Currently three or four cars a day pass behind our property. The county’s proposal to open the alley to business traffic will in effect create a busy street in our backyard. Twenty-four-seven noise, dust, car and street lights jammed up against our lot lines will utterly destroy our peaceful yards.”

“This process has caused a lot of turmoil in our little town, specifically between the business owners and neighbors on 3rd Ave.,” Nick Dunbar, a 2nd Ave. property owner said, “I beg you to listen to the rest of Niwot and not just the people who have so much skin in the game, myself included.”

Anne Postle, owner of Osmosis Gallery and developer of Southpaw Commons used her speaking time to explain how proposed FAR restrictions and disallowing alley access would affect projects on her 2nd Ave. properties. Her first graphic was of a mixed-use building that could not be built if the proposed FAR restrictions were in place, but which gave a 50 foot set back on the alley, citing this as a good fit for the community.

Her second graphic was of an allowed project consisting of two residential-only buildings with a five foot setback on the alley. She said meeting the suggested regulations and taking away the better option for the town would result in “mandated mediocrity.”

Also presented to BOCC was a pictorial representation of 275 public comments posted on Boulder County’s website under the NRCD docket. Each comment was plotted on a map of Niwot as either a green dot for a comment in favor of building restrictions or as a red dot if the comment was in opposition.

“I went through all the letters, emails and signatures on group letters submitted between Sept. 1 and Feb.19 and first divided them into ‘PRO’ the new regulations or ‘AGAINST’ the new regulations. If they included addresses, I located them and put them on the map. If they didn’t include addresses, I googled the name and tried to find the address,” Postle wrote regarding how the map was created. “The dots that are off the map were often anonymous letters or people with addresses that I could not find. If the letter was ambiguous, then I did not plot them on the map.”

The resulting image shows 55 out of the 275 comments were in favor of the restrictions, 42 of those comments were from residents on 3rd Ave., and 220 dots opposing the code restrictions of which 61 were property owners in the NRCD. The remaining 159 comments were from general Niwot residents weighing in against the code restrictions. 

Following public comments, all three commissioners voiced that access to the alley should be granted, but they weren’t solidly in agreement over the use of FAR limits.

Regarding the alley issue, Gardner concluded, “I’m getting the sense that we’re really not getting this right, because I for one believe that we should have access to the alley. Laura [Skaggs] was very clear that it’s a public right and it is public property, and we need to be clear about what that means.“

Gardner also said, “What I’m hearing, at least from some of the business owners, is it feels like there’s a cumulative consequence of the FAR that maybe is not what we intended. I’m less convinced that it helps us in the goal of reducing mass and keeping the character than the other things we already have out there around lot coverage, setbacks, and height restrictions.”

Elise Jones said, “We shouldn’t wait for somebody to get hit or hurt before we do something about it. I want to see how we can really incentivize how we can get rid of the ones [curb cuts] we already have. It makes sense to use the alley and I’m so sorry for the good neighbors who have lived on 3rd Ave. enjoying not having that alley be used, but it really makes sense from a land use planning standpoint to use the alley. I think the trade-off is for us to mitigate that landscape, setback, and fencing so the impact is as minimal as it can be. “

Elise Jones said, “I would go with the staff FAR, but allow additional FAR in exchange for public amenities.”

“For me, I want to keep Niwot, Niwot,” Matt Jones said.” It was always this quaint, cool, quirky place and I want to keep it that way. I also want to allow for change. I don’t know if I want to give up on FAR and here’s why - the issue here is mass on a lot in a quaint place. These issues remind me of Louisville and the ‘land of the curb cut’ in our city council meetings. And boy, you guys ought to think about incorporating, then you guys could control your destiny.”

Ultimately, BOCC responded favorably to the outpouring of commercial stakeholders’ comments by requiring that land use staff prepare an analysis of FAR at different levels for specific parcels and to explore what opportunities exist for FAR to be set higher if property owners were to include public amenities in their project plans.

BOCC also asked staff to use the next month to establish a process to determine what alley access will look like, as well as a method for land owners to modify existing curb cuts. Additionally, BOCC asked for clarifications of code language that addresses windows facing the alley, and lighting and parking requirements.

Following the decision, Jim Kalinski wrote an email on behalf of 3rd Ave. residents to the Courier, which read, “I believe we saw a demonstration of the Golden Rule: those with the gold rule. The outcome appeared to be predetermined and we were wasting our time pleading our case. There was no discussion regarding our point of view by the commissioners. I don’t think there was much hearing at the hearing. The neighbors are saddened and a bit angry and we’re exploring our options.”

"As painful as the moratorium has been for our community, it's worth maintaining momentum to resolve so many unsettled issues,” Skaggs said in response to the tabled moratorium. “Constructive progress in alley usage is a key ingredient that was agreed upon by the commissioners. But let's also keep code language simple and readily understandable when discussing projects in town. Commissioner Gardner commented on eliminating the FAR and relying on the more traditional square footage, height limit, and setbacks. Good idea.”

Postle wrote to the Courier following the meeting, “I never thought I would say this after the pain our town has endured with the moratorium, but extending the moratorium is the right thing. We need to get this right.”

“This is what democracy looks like,” Elise Jones said. “It’s hard work and it’s showing up and it’s engaging and you guys are doing that in spades and it’s really a reflection of how much you love your community, so that’s a wonderful thing to see.”