Bruners successfully appeal height limit in Old Town

When Curt and Marianne Bruner decided to downsize after 31 years in Niwot, they bought a lot at 364 Franklin Street in Niwot's Old Town area next to Left Hand Animal Hospital. The previous home at that location had fallen into disrepair and had been scraped by a developer after the death of the owner.

The Bruners engaged Niwot architect Anne Postle of Osmosis Architecture to design a one-story home of approximately 2,275 square feet at ground level with a height of just under 29 feet, an attached 387 square-foot garage, and a full basement, making the total residential square footage 4,943 square feet. The home was designed to mimic the feel of several other buildings in Old Town with an early 1900's farmhouse look, and a height of just under 29 feet where the height limit under the Land Use Code zoning was 30 feet.

The Bruners, with Postle's guidance, thought they had followed all of the zoning guidelines for homes in the Niwot Rural Community District II zoning district for the quarter-acre lot. According to the county, a home of 2,695 square feet or less was presumed to be compatible with the character of the neighborhood, and the staff agreed that the fact that only 2,662 square feet of the Bruner home and garage were above grade indicated that the size of the home was compatible with the neighborhood. By setting the home back 42 feet from Franklin Street, the Bruners were able to preserve two large trees of well over 30 feet in height.

Curt Bruner, a retired engineer, and his wife Marianne, talked to most of the neighbors about their plans, and asked for input on the design. Everyone who spoke with them conveyed their enthusiastic support. As part of the site plan review process with Boulder County's Planning & Permitting Department, a notice was sent out to property owners within 1,500 feet of the property.

In response to the notice, several neighbors took it upon themselves to write a letter of support. But when it came time to meet with Boulder County staff planner Dana Yelton to go over conditions of site plan review approval, the Bruners and Postle were what they later described as "blindsided" by the county's imposition of a 22-foot height limitation where the zoning allowed a height of 30 feet.

Staff wrote, "Because the proposed building site is highly visible from surrounding private properties..., the proposed height...is not approved."

The height limit included as part of the approval would require the Bruners to redesign the home, adopting a look more in line with what they described as a post-war 1950s-1960s home, of which there are several in Old Town.

As the basis for the height limit, the county claimed that the home as designed was "incompatible with the existing character of development within the defined neighborhood," in spite of the fact that many other homes and buildings in Old Town were at or close to the 30-foot zoning limit. Yelton wrote in an email, "While staff does not find there to be a significant negative viewshed impact on surrounding properties, staff finds that the proposed height is not compatible with the neighborhood character of the surrounding area."

The Bruners filed a notice of appeal, challenging the Boulder County Land Use Director Dale Case's Determination Letter, which indicated that the proposed design would not be "compatible with the neighborhood."

By that point, the Bruners had become good friends with many of the soon-to-be neighbors. Seventy-two of them signed a letter to Boulder County, supporting the Bruners' plans and the 29-foot height design. No one in the neighborhood had opposed the height of the home.

The Bruners and Postle had a pre-hearing meeting with Yelton and her supervisor, Summer Frederick, and cited the support from the neighbors. County staff continued to insist that it knew best what was compatible with the neighborhood, and refused to modify the conditions of approval. In response to an email from Curt Bruner, Yelton wrote, "While I appreciate the perspective of you, your architect and your neighbors, sometimes the viewpoint of property owners and applicants differs from county staff's evaluation of a proposal."

The appeal was heard by Boulder County Commissioners Ashley Stolzmann, Claire Levy and Marta Loachamin on Oct. 22. Following the staff presentation of its position, which included a graph showing that 22 feet was in the middle of the existing building heights in Old Town, the Bruners and Postle, along with the Bruners' attorney, Bruce Warren, addressed the commissioners.

The Bruners noted their efforts to work with the neighbors to achieve a design that the neighbors would support. Curt Bruner testified that the county's method of determining the actual height of existing buildings was flawed, noting that his own measurements showed that buildings were often much higher than the county had determined.

Postle addressed the fact that she had recently obtained approval for other buildings in Old Town, and that the county had not objected to heights approaching 30 feet.

Warren noted that the Land Use Code does not exclude non-residential buildings in determining whether a proposal is compatible with the neighborhood, and objected to the county's failure to consider the height and size of the Left Hand Animal Hospital next door to the Bruner property, which was over 5,000 square feet and had formerly been a residence above a pre-school. He also pointed out that the Code provisions cited by the county were under the category of "negative visual impacts," and that the examples in the Code addressed properties on a hill, or visible from public lands, neither of which applied to the Bruner property.

When it came time for public comments, several Niwot residents, most of whom lived near the Bruner property, testified in favor of the Bruners' plans. Jeremy Bookman described both the "character of the neighborhood" and the "characters of the neighborhood," noting that Old Town contained a wide variety of types of homes, as well as the residents who inhabit them. Others testifying in support of the Bruner appeal included Victoria Keen, Michael Selak, Julie Daves, Gil Pomeroy, Jim Thomas, Nicholas Eliasson, Mary Coonce and Michael Tomich.

One Old Town resident, Cathy McCall, testified in support of the county staff's position, stating that the proposed home was "far too big for this neighborhood." County records show that McCall owns property at 350 Murray Street, one block away, a two-and one-half story home with 2,288 square feet and a height approaching 29 feet on a one-eighth acre lot.

Commissioner Levy thanked the staff for its work on the project, but noted that the Land Use Code allowed a height limitation below the 30-foot zoning only where the property produced a negative visual impact due to a location on a hill, or when viewed from public lands. Commissioner Loachamin seemed to side with county staff on the height limit, but Commissioner Stolzmann agreed with Levy that the 22-foot height limitation was not appropriate, noting that the home follows a trend toward historic design. After a motion by Levy, the commissioners voted unanimously to uphold the appeal and remove the 22-foot height limitation on the Bruner residence.