A History of Lafayette's Growth Management Amendment Part Six

The 40% exemption

A HISTORY OF LAFAYETTE’S GROWTH MANAGEMENT AMENDMENT

PART 6 - THE 40% EXEMPTION

MANAGED GROWTH CYCLE

January 1, 2013, to January 1, 2019. The amendment was due to return to the voters in November 2018 to renew for another 6-year cycle beginning January 1, 2019.

2017

JANUARY 11, 2017

LIVABLE LAFAYETTE TASK FORCE

Councilors Lynch and Walton spearheaded this ad hoc group. It included seven members, some with experience in housing or planning, and Roger Caruso as the staff liaison. Roger was the economic development director and executive director of LURA, Lafayette’s Urban Renewal Authority, having started work in Lafayette in the planning department.

The Task Force Purpose:

Using guidance from the 2013 Technical Update to the 2003 Comprehensive Plan (section II. E. Housing), advise the City Council by providing a needs assessment and recommended strategies to implement the plan’s goals and policies for the City of Lafayette which focus on providing and encouraging housing for all ages and for lower income levels.

They met every 3rd Wednesday for 2-3 hours beginning January 11, 2017, with plans to deliver a report to City Council on July 18, 2017.

Topics:

Housing 101

Land Use Code and Opportunities Feb 22 – Government Partnerships

Aging in Place

Mobile Home Parks

Non-Profit Roundtable

WorkforceHousing

Inclusionary Housing

HERE WE GO AGAIN

I attended some of these meetings. During one meeting Roger Caruso told Councilor Walton that staff was working on changes to the managed growth amendment.

I met with Councilor Walton to explain the history of the residents’ work in favor of managed growth.

By this time I had a document that I called A Thumbnail on Lafayette’s Managed Growth Amendment. I sent this document to the city council, members of the planning department, and the city administrator along with a message saying what I had heard at the Livable Lafayette meeting.

APRIL 18, 2017

COUNCIL GOALS WORKSHOP

During a City Council goals workshop a question about changes to the growth amendment came up. City Administrator Gary Klaphake told the council he knew nothing about any changes beyond “that email” which I assumed was mine.

At a later Livable Lafayette meeting, Roger again told the group that staff was working on changes and mentioned Gary being involved as well.

JUNE 6, 2017

THE BEGINNING OF WILLOUGHBY CORNER, BOULDER COUNTY’S AFFORDABLE HOUSING PROJECT

On June 6, 2017, the city council approved a resolution to purchase land located at E. Emma and 120th owned by the Flatiron Community Church. This is now Willoughby Corner. See my report from April 2023.

From the resolution:

“The City Administrator in consultation with the Boulder County Housing Authority has negotiated a contract with Flatiron Community Church to acquire title to the 23.8 acre site in order to preserve the property, and make it available for future development of a housing community that is ‘affordable’ ”

“The City and the Boulder County Housing Authority anticipate the execution of a separate intergovernmental agreement between them, whereby the contract to buy and sell real estate will be assigned to the Boulder County Housing Authority, including the obligation to pay the purchase price, and the City will contribute to the Boulder County Housing Authority an amount equal to the purchase price over a period of approximately 16 years from fees and funds established by the City to support affordable housing. The intergovernmental agreement is subject to approval by City Council”

JULY 18, 2017

SURPRISE APPEARANCE ON THE COUNCIL WORKSHOP AGENDA. MORE CHANGES WANTED.

The council agenda for this date included the final presentation from the Livable Lafayette Task Force.

Shockingly also on the agenda, with no previous council discussion, was a draft ordinance for a ballot question related to the managed growth amendment.

“C 2017 Ballot Issues Discussion

Draft Ordinance / Submitting to the Voters at the Regular Municipal Election on November 7, 2017, an Amendment to the Home Rule Charter Pertaining to the Residential Growth”

With two readings required for an ordinance and a ten-day waiting period before it became effective, the time frame was tight. September 8th was the deadline to place questions on the November ballot.

WHAT THE DRAFT BALLOT LANGUAGE SAID

ONE YEAR EARLY AGAIN

The current 6-year cycle would end on January 1, 2019, and was due to return to the voters in November 2018. Once more we see this is being brought back a year early with exemptions included. Due to the actions of the 2012 council, the majority of the permits in this cycle were exempt leaving around 1000 permits still available with about a year and a half left.

PRIORITY STATUS REMAINED

The language from the 2012 change that wiped the slate clean of permits in the pipeline was still there with dates adjusted for the next 6-year cycle. Planning and Building Director Karen Westover said this would exempt the Lafayette City Center next to City Hall and 160 permits for the Copperstone apartments near Exempla Hospital.

AN EXEMPTION FOR DEVELOPMENTS WITH 40% AFFORDABLE UNITS WAS ADDED IN PLACE OF THE 50 ANNUAL AFFORDABLE PERMITS

The language added in 2001 providing 50 annual permits for permanently affordable units was struck through. Instead, language was added that would exempt an entire development from the growth cap if 40% of the units are targeted to people who earn up to 80% of the area median income (AMI). The remaining 60% of the market rate units in the development would also be exempt from the growth cap.

Here’s the AMI chart for 2022 found on the Willoughby Corner website.

COUNCIL SAID TO MOVE FORWARD

Little discussion happened during this workshop. The council instructed staff to bring the ballot language to their next meeting.

AUGUST 1, 2017

RESIDENTS SPEAK OUT AGAINST THESE CHANGES AND THE RUSH TO THE BALLOT

Residents brought their concerns to the council during public input. There was no public hearing. One after another spoke against shortening the cycle, the exemptions, and combining the exemptions with the vote to approve another cycle.

Also raised was the total lack of public notification and engagement and that this amendment was spearheaded by residents themselves in 1995 to take control of growth away from those at city hall. It was seen as a slap in the face.

The only time I had heard any mention of changes to the amendment happened during Livable Lafayette meetings. I questioned why the task force report and the ballot question were on the same agenda. It appeared that the requested changes came from that group.

Future councilors and future mayors Harkins and Mangat were in the audience.

COUNCIL DISCUSSION BEGAN

City Administrator Klaphake showed council a chart that had all the permit allocations since 1995. It showed the next cycle beginning a year early. For the 6-year cycle 2018 through 2023 it had estimates of 1079 exempt permits, 1200 nonexempt permits for a total of 2279. 991 non-exempt permits were estimated for 2023.

Mayor Pro-Tem Reyna wondered what was the point of putting this on the ballot. He suggested stripping it back to the original language with no exemptions.

City Attorney David Williamson explained how the 6-year cycles work. He said the charter language is written to require the amendment to come back to the voters at the end of the 6-year period “as is”. It must come back as it is written at that time which would be November 2018. If council wanted to make changes they must do it before the end of the cycle otherwise they will be putting more than one question on the ballot and it could be confusing. If they put something on the ballot this year and it fails, next year the language will come back as it is written now.

There was a discussion about exempting the Boulder County land rather than having the 40% exemption.

Councilor Walton expressed frustration over the last-minute appearance of this ordinance. She said their backs were against the wall. She said there had been no public discussion or process and that didn’t feel right to her. She compared this to the public process for the Old Town Overlay District which was happening at the same time and she was not ok with this process. She said she didn’t have enough information, she expected to have a workshop and to be talking about it for months. She said she had asked many, many times about growth management and was told staff was working on something. She mentioned discussions she had with the planning staff and information she later received from them. She said she was confused about the comment during public input that this had come from the Livable Lafayette Task Force, she said it hadn’t. This was in reference to my comment about the timing of both items being on the same agenda with no prior discussion. It appeared to me that they were connected. She said she was not prepared to vote, and that she was no on the growth management language they had in front of them right now.

It was clear that the council did not understand all the changes that had been made over the years as they struggled to decide what to do.

Mayor Pro-Tem Reyna seemed to think the only changes made happened in 2012. He again suggested going back to the original language, stripping away the exemptions from 2012, and adding in anything new they wanted to do now.

The city administrator and the city attorney discussed the original language of the amendment saying the extra 50 affordable permits were a part of that. I was shaking my head in the back of the room. Mayor Berg called me to the podium to provide more information. I explained the 50 affordable permits were added in 2001. I told them other exemptions had happened as stand-alone questions before the 6-year renewal point.

I pointed out that the language from 2012 that gave priority status and cleared the pipeline had dates associated with it and if they did not change those dates I thought that part of the amendment would automatically sunset when the time frame ended. I also suggested they could wait to bring the language as written back at the required 6-year point while also including on the same ballot a separate question to exempt the Boulder County affordable project.

A SIDESTEP TO PROVIDE SOME CLARITY FROM THE VOTERS’ POINT OF VIEW

The city attorney said the reason they brought the amendment renewal and the changes a year early in 2012 was because they couldn’t make changes in 2013 when it was due to return to the voters as written.

It should be noted that there is never a reason to combine the renewal with exemptions. By doing that it forces the voters who support growth management to approve changes they might not want.

The argument made by the city attorney numerous times was that they shouldn’t put separate growth management questions to the voters in the renewal year because it “would be confusing” to have more than one question.

The argument suddenly made in favor of bringing the renewal a year early was that if the question failed they still had the next year to bring it back again. However, it’s important to understand that the voters would not know it could come back the following year. if they wanted to keep managed growth of course they would vote for it, whether it be in 2012 or 2013. Even if it meant holding their noses while voting yes due to exemptions they did not support.

Bringing the amendment back early was where the confusion would be and red flags were raised to some of us who knew the history. Did the city council and staff stand behind the changes they wished to see or did they think they had to tie them to something they knew the community supported because they might fail on their own merit? In fairness to the voters, they should be allowed to approve the growth amendment alone. Then they should be given the opportunity to vote yes or no on individual ballot questions which ask for exemptions or other changes. This can happen at any time during the 6-year cycle.

BACK TO THE COUNCIL DISCUSSION

Again Mayor Pro-Tem Reyna asked the question, what does this ballot need to have that is important for this council to ask for?

Councilor Lynch echoed Councilor Walton about being surprised this came forward but said there wasn’t enough time to do something else. She wanted a more simplified version but wanted to keep moving. She would support taking out some exemptions as long as there was something specific for the Boulder County project.

Councilor Wiesley suggested going back to the original language, with two changes. One being the exemption for the Boulder County project and the second removing the 200 permits per year restriction. (Again I must note the confusion around this topic as removing the 200 per year language happened in 2012 when he, Councilor Lynch and Mayor Berg were on the council and brought it to the voters.) He said he would be comfortable with putting that on the ballot.

Councilor Walton asked if that was the 2012 language.

Councilor Wiesley said no because the 2012 language exempted everything in the pipeline.

Councilor Behanna asked if they could put the exemption for the Boulder County land on the ballot this year and allow the amendment to come back to the voters next year.

Councilor Wiesley said that would leave the language as is, which clears the pipeline of permits and that’s what people have said they are not happy with.

Councilor Walton preferred leaving the 40% affordable language instead of making an exemption for a specific site.

Councilor Wiesley said he was hearing people don’t like that language because 60% of a development would not be affordable.

Councilor Lynch said because of the perception they are constantly trying to finagle ways to leverage more and more permits, keeping it specific makes it more doable in terms of creating more support for it. They are not trying to leave the door open, they are trying to leave one specific door open for this key project.

They discussed what effect the change might have on permits already exempted.

Councilor Walton was concerned about putting this on the ballot without being able to talk to the community about it.

Councilor Behanna said before she would vote on second reading she needed a lot more information.

Councilor Wiesley acknowledged the public pushback. He said they were all uncomfortable with the process, but they can’t unring the bell. He said they either move forward with something now and look at the changes over the next two weeks (before second reading) or take their chance with a lot of things people don’t like in a year when it comes back to the voters as currently written.

The city attorney was instructed to bring new language to their next meeting for the final vote to approve.

Council voted to move forward on a 4 to 2 vote. Councilors Behanna and Walton were no votes. Councilor Mazza was not in attendance.

SIDESTEP AGAIN

I am including all these details which may seem like overkill, because they illustrate the council’s confusion and how rushed this decision was.

It was excruciating to sit in the room and listen knowing they were using incorrect information to make their decisions and not being able to point that out.

1) I’m certainly not a lawyer but a simple reading of the language in the first draft seemed to override anything concerning the wipe the slate clean language from 2012. This is what I pointed out to the council and city attorney earlier in the meeting. Here it is. Note the dates regarding this were changed to reflect the new cycle. If those dates were not changed that language would no longer apply if brought to the voters in 2018. The priority status would expire naturally.

2) If the council wanted to ensure the Boulder County land had adequate permits they could have asked the voters for that exemption in one simple ballot question, either in 2017 or 2018.

3) There was no need to bring the amendment back a year early.

AUGUST 15TH 2017

SECOND READING OF THE BALLOT ISSUE

PUBLIC INPUT

I thank the council for their response to the public. I bring up the problem of combining the renewal of the amendment with exemptions, and the rush to the ballot with little discussion. I question the need for exemptions when there were still around 1000 permits available for the rest of the cycle. I suggest they address permit availability during the annual permit discussion at the beginning of each year by holding back a specific number for affordable units that are put back into the pot if not used.

A few other points made during public input:

It looked like there was maneuvering in order to get all the permits that were needed for upcoming projects which is the exact opposite to managed growth. It is growth managing us. A 1000 permits are already on the horizon for the next cycle.

Reduce the growth rate from 3% to 2%.

Future councilors and future mayors Harkins and Mangat were in the audience again.

A LARGE MENU WAS PRESENTED

The city attorney had prepared 3 versions of the ballot language for council’s consideration.

A - kept the growth amendment as it currently stood but would replace the exemption for the Josephine Commons site (previously exempted in 2000 and now built) with the Boulder County land. This would require a vote in November 2018 to renew the amendment.

B - had the same language as A but included the 6-year cycle renewal that would go into effect on January 1, 2019, eliminating the need for a renewal vote in November 2018.

C - duplicated the language regarding the Boulder County land but started a new 6-year cycle on Jan 1, 2018. This would shorten the current cycle to 5 years as happened in the previous cycle.

ENTER ROGER CARUSO

He said Councilor Behanna had asked for a list of options ranging from most flexible to least. He had 3. Now council had 6 options to consider at second reading.

This now becomes too complex for even me to follow. Council had a menu of options that they could combine in order to find the language they wanted to bring to the voters. I will yada, yada, yada here to get to the ballot question itself.

They kept the 50 annual affordable permits and added language which exempted any development that would be at least 40% affordable.

2) They removed the priority status language which would have exempted everything in the pipeline.

3) They kept the current 6-year cycle setting up the beginning of the next one for January 1, 2019, if approved by the voters in November 2017.

THE FINAL BALLOT LANGUAGE

Official Ballot Wording for Ballot Question 2E - Residential Growth Management:

Shall the existing residential growth management restrictions of Chapter VI of the Lafayette Home Rule Charter be amended to extend and retain the aggregate building permit cap for the six (6) year period between January 1, 2019 to January 1, 2025 and to remove from its restrictions developments that restrict at least 40% of the dwelling units as affordable dwelling units?

The voters approved the ballot question.

OH, WE’RE NOT DONE YET. LET’S GO BACK TO ROGER CARUSO

In late December 2019 during an open house for developers focused on the 700 block of Public Rd. Roger announced he was leaving his position with the city to, in his words, go to “the dark side” and indicated that was to work in the development community.

JULY 2020

Roger, now a private citizen working in the development world spoke about affordable housing during public input at a council meeting. He had a slide show. (Yes I have it).

One of the slides contained a shocking admission that no staff analysis was done on the 40% affordable exemption that council took to the voters in 2017. He said it did not pencil financially. Here is a screenshot of that section of his presentation.

As we know Willoughby Corner benefitted from this language but so far no other development has come online using the 40% affordable exemption. Roger’s suggestion was to go back to the voters and ask for the language to be changed to 15% affordable. This means asking the voters to approve exempting 85% of the market rate units in a development to get a small number of affordable units. What is the language to ask for this? We made a mistake because we rushed to the ballot and staff did not do their job? Let us repeal one part of the language and replace it with something else even more wide open?

Once more something brought to the voters is poorly thought out and rushed through.

If the 2017 council had asked to only exempt Willoughby Corner that 40% affordable language would not exist.

FEBRUARY 23, 2023

During a council workshop on potential ballot questions, the staff checked in with the council to see if there was interest in bringing the growth amendment to the voters once more a year early. Council said no. I was able to finalize the last report on the history of the amendment in time for this meeting.

THE STATE PROHIBITS GROWTH MANAGEMENT

Due to a vote in the statehouse managed growth is prohibited across the state. HB 23-1255, prohibits governmental entities from enacting or enforcing “anti-growth” laws. It takes effect on August 7, 2023.

COUNCIL DISCUSSION

During a workshop on July 24, 2023, council was presented with an update from city staff with some options for actions they could take. See this report from Vicky Uhland.

Watch the presentation here.

FROM THE COUNCIL PACKET FOR THE WORKSHOP

Background Information

The Colorado General Assembly passed HB 23-1255 earlier this year, which declares that adequate and affordable housing growth is a matter of statewide concern, and preempts any existing local government housing growth restrictions, like the City’s growth management program. Specifically, the bill prohibits a governmental entity from enacting or enforcing an “anti-growth law” with certain limited exceptions. The legislation defines an “anti-growth law” as:

A land use law that explicitly limits either the growth of the population in the governmental entity's jurisdiction or the number of development permits or building permit applications for residential development or the residential component of any mixed-use development submitted to, reviewed by, approved by, or issued by a governmental entity for any calendar or fiscal year.

The term “land use law” is defined as:

Any statute, resolution, ordinance, code, rule, regulation, plan, policy, procedure, standard, initiative, guideline, requirement, or law that regulates the use or division of property or any interest in property.

The bill includes an exception to allow a governmental entity to enact and enforce a “temporary, non-renewable anti-growth law” to be effective for up to two years during any five-year period in any of the following circumstances:

• If a disaster emergency has been declared by the State of Colorado or the local government;

• If the local government is developing or amending land use plans or laws covering residential development; or

• To provide for the extension or acquisition of public infrastructure, public services, or water resources.

The bill explicitly states that it does not preclude a governmental entity from regulating land, developing land use plans, enforcing affordability requirements, denying permits for any reason (including reasons related to infrastructure extension, water resources, or public services), regulating short-term rentals, or otherwise exercising its authority to regulate land use.

The bill will go into effect and become law on August 7, 2023, unless a community-initiated referendum is filed with the Colorado Secretary of State on or before that date.

COUNCIL’S NEXT STEP? I DON’T KNOW.

At the August 2nd 2023 council meeting Vicky Uhland and I spoke about the amendment.

Here is what I said.

Our City Charter requires that members of our boards and commissions must be registered voters. When presented with a ballot question asking to remove that requirement the majority of the voters have consistently said no. They said no in 2006, 74% said no in 2015 and 63% in 2016. Currently, you are conducting a poll to see if that support has changed before considering a fourth ballot measure. I support removing this language.

Our Managed Growth Amendment, the People’s Amendment, was written by residents, placed on the ballot by residents and always receives a majority of votes in favor of renewal. It has now come under attack by a new state law which calls it “anti-growth” which of course it is not, evidenced by all the new dwelling units we have seen constructed and continue to see. It is controlled growth, something that is clearly supported by our residents and those who vote.

With that in mind, I am wondering why during your workshop last Monday no one suggested that perhaps, the people of Lafayette might want to have a say in what actions you take or don’t take to address the attempt from the state house to override our Home Rule powers and say we cannot have managed growth.

Surely this state-mandated change regarding our managed growth amendment deserves a discussion with the community before any action is taken. It affects our whole city and constantly receives support in high numbers not only at the ballot box but in survey after survey.

Instead, we get to watch a workshop where you are presented with some options, you make a choice and it’s basically over. When it comes back to you, you will be voting on that choice and we the people who created this amendment and consistently support it will get to speak to that choice only.

Can you not see the problem here? You are polling the residents to see if they support the change to the charter regarding voter requirements while totally leaving them out when it comes to their charter amendment. You have spent more time and money on the boards and commissions question, than on the issue that is far more important to the community. The discussion during the workshop mentioned staff and developers but never once mentioned the residents.

We are a Home Rule city, shouldn’t there be a discussion about how wrong it is for the legislature to challenge what we are doing, shouldn’t there be some pushback? What’s next to come down the pike? We know the land use topic isn’t over. Our amendment is not anti-growth it has allowed us time to plan and to prioritize affordable housing. Shouldn’t we be advocating for that? I attended the groundbreaking for the Willoughby Corner development and it was mentioned that it is the largest development of its kind in Colorado and possibly the country.

That happened here with managed growth. Shouldn’t we be making that case to the state house? Perhaps that would help shape what might come in their next session, maybe what we have done could change some minds if they understood it. What we saw in their failed land use bill was clearly put together by people who see a problem but have no idea how to address it so they used a very broad brush to create a one size fits all solution to a complex problem. And they will be back.

Just maybe you should pause and rethink here before you roll over and do what the state says. Surely the people deserve to have input on what happens to their charter amendment before you do that.

Thank you.

WHAT CAN YOU DO?

Contact the city council to express your opinion. You can see what options they were given in Vicky’s report on the meeting.