Homes on the range
Mountain development gets a free pass
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by Scott Weiser (Editorial@boulderweekly.com)
Jim Guercio is accustomed to fawning fans. As a record producer who helped make the Beach Boys one of music's most legendary pop bands, Guercio learned how to give the fans what they want. These days, it's county officials he's trying to please, and critics say the Boulder County Commissioners are acting like obsessed groupies. "You could almost hear the 'POP' from the commissioner's lips as they detached from Guercio's buttocks when he left the room," said one observer of the public hearing before the County Commissioners on Tuesday, March 27.
Guercio, who has already profited from land sales to Boulder County for open space to the tune of more than $15 million, has applied to build 23 luxury estate homes, a horse barn, a 5,000-square-foot "fishing cabin," three back-country "cabins" larger than many mountain homes, and nearly 10 acres of trout-fishing ponds on his Caribou Ranch property northwest of Nederland.
More than 30 years ago, Guercio bought the Caribou Ranch, consisting of more than 4,000 acres, including a subdivision platted and approved by the county in 1963 called "Caribou City." During the '70s and '80s, he made a mecca for recording by building a state-of-the-art recording studio at the Caribou Ranch homestead (see sidebar).
Guercio has rights to build 136 homes on the property. Starting in 1996, he sold 2,180 acres to Boulder County and the City of Boulder, and put another 460 acres under conservation easement. His new project would add another 1,029 acres to the total of preserved open space.
The commissioners are eager, some say overeager, to grant Guercio his request. They want to eliminate the possibility that the old subdivision could be developed-something the county cannot prevent because the subdivision was approved by their predecessors nearly 40 years ago. People familiar with the county's "Byzantine" and "Machiavellian" land use regulations are concerned about the apparent ease with which Guercio's project is being approved by county officials.
Critics suspect Guercio's money and his political support of Commissioners Ron Stewart and Paul Danish in the last election helped to grease the skids for his development plans. He donated $1,000 to each politician's campaign. They are upset that the county isn't giving the same sort of intense, nit-picking scrutiny and micromanagement to Guercio's project that they say it commonly dishes out to Joe Average Citizen when he applies for a building permit for a single-family home.
But the criticism isn't being leveled at Guercio himself. Nobody, including members of the Land Use Coalition-a private property advocacy group that's critical of the county's land use process-seems to have any major objections to Guercio's project. "It's a great project. I think (Guercio) has done a very professional job," Kevin Probst says. "It will be an exclusive development, there's no question about that, but it is a good change to amend the process from building a hundred smaller homes to building 20 or so larger homes." Probst, who ran against Danish in the last election-losing by some 17,000 votes-is the president of the Land Use Coalition and heads Boulder County Watchdog, an organization he started after the election to scrutinize county government.
"What I have a problem with is the hypocrisy," he says, "He's getting special treatment, and the commissioners are bending over backwards, to put it mildly, to grease the process for him, whereas Liz Weed and others have been put through years of abuse and torture."
County Commissioners Jana Mendez and Paul Danish categorically deny that Guercio is getting special treatment. "It hasn't been easy by any stretch of the imagination. He has compromised a lot," Mendez says. "I think we bend over backwards to treat everyone the same." Danish agrees with Mendez. "The negotiations at Caribou have been going on for months, so it's not like he's been put on a fast track," he says.
Critics maintain that the county is obstructionist and extremely hostile to development, especially in the mountains, and that it commonly places onerous, restrictive conditions on property owners-such as limiting house sizes to less than 2,000 square feet of floor space. Some owners then abandon their plans; others simply bite their tongues and capitulate, hoping to salvage some value from their land. "The county sets it up to create conflict, and in fact encourages conflict. It's a very divisive process, and it doesn't need to be," Probst says.
While the county and Guercio have been working on his plan for several years, the public took little notice, possibly because public hearings were not held during the negotiations. While some applicants suffer through multiple public hearings before the various commissions-in one case, more than a dozen-to build a home, Guercio has had just one public hearing before the Boulder County Planning Commission and one before the County Commissioners. His project, up for final action on Thursday, April 5, will almost certainly be approved at his second commissioner's hearing, largely because if the county delays the decision it will jeopardize the finalization of the open space conservation easement sale, which is scheduled for closing on April 10. Probst, with some admiration, says Guercio is being a canny businessman and is holding the open space dedication hostage to the development approval, something few homeowners have the luxury of doing.
Jim Burrus, media information officer for Boulder County, disagrees. "Everybody is equal in terms of how the county deals with them," Burrus says. "They take an application, they look at it and they say 'what's the best outcome that can happen with this application?' In the case of Caribou Ranch, we're faced with a proposal where, by right, this gentleman can build more than a hundred homes which would have a much greater impact than the alternative, which is to build 27 homes and donate many acres to open space. In the county's eyes, we definitely want the lesser of the impacts."
However, complaints about the county's abusive tactics are not unfounded. County critics say an egregious example is Liz Weed, who wanted to build a modest, environmentally friendly house on her 12-acre Sunshine Canyon mining claim. When she tried to get approval to build a road to the house site, the county staff recommended against it. After three public hearings with the commissioners, she was convinced that her application would be denied and that it was fruitless to proceed.
"She wanted to build a modest house at the end of an anything-but-modest road," Danish says. "We said that we would approve a lot, but much closer to Sunshine Canyon. We'd approve a home site at the end of the road that goes in there now, which is a couple of hundred yards in, rather than one way out another thousand yards on down where she wanted to do it."
Road to nowhere
But Boulder Weekly's review of Weed's application shows that her property doesn't extend to the end of the existing road, or anywhere near it. It's a long, narrow mining claim that begins nearly a mile from the county road and several hundred yards beyond the end of the existing road. There are several intervening private parcels between her property and the road, as well as Bureau of Land Management parcels. The location of the proposed road was the only possible place it could be built. There is no alternate access. More puzzling is the staff recommendation that the house site be approved, with conditions, near the end of the parcel farthest from the existing road, but that the road be denied. For fire and health safety reasons, county land use regulations require vehicular access to residences. This raises the question of whether or not the staff recommendations violated the county's own land use code. Guercio, on the other hand, will be building several new roads, and abandoning some existing ones, to serve his estate subdivision.
A house cleaner by trade, Weed exhausted her meager finances and her emotional health in the process; she put the project on hold, afraid she would be drawn into an expensive lawsuit if she sought final approval and the road was formally denied. Unfamiliar with the process, unable to afford a staff of expensive professional planners like Guercio's, and getting no help from the county, she asked that the application be tabled indefinitely rather than proceeding with the final public hearing for a decision by the commissioners. And that's where it ended. "I've moved on. I had to. I don't like to fight, and it wasn't worth it anymore," she said. "I don't even care anymore, I've just let it go." She plans to sell the land and move out of state. "It was meant to be for me, you know. I could not live up there now, and I guess it was all meant to happen this way."
This treatment of citizens infuriates members of the Land Use Coalition, and it's reason the group was formed. "The only difference between Liz Weed and Jim Guercio is about 40 million bucks," says Boulder attorney and LUC member Ann Mygatt, who has had her own battles with the county. The coalition, made up of a sociopolitical cross-section of Boulder County, includes members of just about every political stripe. Mygatt describes herself as a dyed-in-the-wool "tax and spend Democrat." "I think 90 percent of the people in this county are in favor of open space and would approve of whatever it takes to prevent any new development," she says. "It never even crosses their minds that somebody else bears the costs. They don't know about it, they don't think about it. I was one of those people up until two years ago. As far as I was concerned, whatever the commissioners had to do, even if that meant crushing a few landowners, if that's what it took, okay, fine. What changed my mind was finding myself in the process. It felt to me like someone was going to take my 401k and turn it over to the county."
Probst concurs. He describes his encounter with the Land Use Department as "a humiliating, degrading experience."
Fear and loathing
LUC members say that many citizens are flatly afraid to speak out or criticize the county out of fear of retaliation. Several sources refused to speak to Boulder Weekly on the record for that reason. "I'm sorry that anybody would feel that way," Burrus says. "I can only assure the public that the county does not go out and retaliate against people. If somebody has a concern, and if they want to voice that concern, there's a woman that works in the commissioner's office who functions as an ombudsman. She's our constituent services liason, Marianne Reichert. She deals with people who have a problem with any department: health department, land use, open space, whatever."
The LUC claims that unlike Guercio's self-admittedly pleasant experience, negative experiences with the land use department are hardly unusual. In 1999, the coalition commissioned a survey of more than 1,100 people who had been through the county's site plan review process. Of the 163 people who responded, 79 percent of them made "only negative comments," 9 percent made "only positive comments," and 10 percent "made mixed negative and positive comments," according to the LUC's website (landusecoalition.org).
"Over 100 people (nearly two-thirds of respondents) took extra time to write additional comments," coalition literature says, "The numbers generated from answers to the questions reveal only part of the story. Those who were moved to write additional comments present a more intense picture. Some who rated the process fairly well made additional comments that were harsh and negative."
The county dismisses the LUC's study as unscientific and not reflective of the true feelings of the majority of applicants, noting that the response rate to the LUC's questionnaires was only 16 percent. The county believes that most people are treated like Jim Guercio and that acceptable compromises are reached in most cases. While it's not possible to draw any precise or universal conclusions from either side's claims, there do appear to be some significant issues about the county's land use regulation processes that need scrutiny.
Burrus doesn't entirely disagree. "There's a very, very, very small minority of people who deal with the county in a site plan review that have not been happy with the outcome," Burrus says. "Could it be better? Possibly. Certainly. I think that every organization can improve and do a better job. Are we actively pursuing that? Yes, yes we are. We are working on getting feedback from people who go through the process and we want to make that a continually improving and better process for the public, in general."
But Burrus isn't so charitable in his opinions of the Land Use Coalition and its examples of abuse. "Personally, I think it's bogus grasping at straws. They have taken basically three or four people who are upset with the outcome that they had in the site plan review process and made them all poster children for some fabricated larger problem that does not exist," he says, "We don't screw-over dozens of people a year in our site plan review process. That's not the case."
Probst is amused by Burrus' derision. "Years ago, before the Land Use Coalition, I think that there was encouraged in the staff a confrontational attitude that 'we know better than you, and we're going to get you to do what we tell you to do,'" he says, "Since the LUC, and other folks too, have been taking a stronger position, the staff is very much trying to work to solve problems rather than create problems."
One of the major complaints critics have is the degree of deference that the county-in particular the county commissioners-give to complaints by the neighbors of planned projects.
"I think personally, it's really politics," Probst says. "It's putting politics before people. They try and do things that will engender the most support from their base, which, as we've seen from the election, is here in the City of Boulder. It's the folks who live in the City of Boulder but want to be able to see pristine mountains, and lots of open space. Well, I understand that's who gets them elected, and they are doing what they can to do the things that will make those people want to re-elect them."
Burrus doesn't deny that neighbors have a significant impact on the decisions made by the commissioners. In fact, he sees it as a positive feature of the process.
"It's not so much the county's vision necessarily, it's the neighbor's," he says, "What somebody builds on a mountain piece of property has a huge impact."
"Neighbors have rights too." Danish says in response to complaints that neighbors have too much say in the review process.
But this begs the question of what rights, exactly, neighbors have when it comes to controlling activities on property they don't own. Few would suggest that a neighbor has a right to dictate what color someone's house can be, or whether it can be built in front of his view of the mountains, or that he has a right to deny someone the right to build a house at all merely because it would be a "visual blight" to him. Such interference by one neighbor upon the other's right to use and enjoy his property has little foundation in law. Yet that's precisely what the county routinely does during site plan review, as factotum for neighborhood objectors. This raises the philosophical question of where the county's authority to regulate such matters comes from.
"If the neighbors don't have that right, how can that power be granted to the county?" Mygatt asks.
Both Probst and Mygatt concede that neighbors do have some rights over neighboring uses. They don't deny that neighbors have a right to expect no direct harm will be done to their property by adjacent landowners. One isn't allowed to pollute the groundwater or create landslide hazards which would export harm onto someone else's land. The county can properly exercise its authority to regulate uses to prevent such harms. But even those rights have limits, say county critics, particularly where potential harms can be mitigated through good engineering and construction practices. Where engineering can mitigate the potential harm, the use shouldn't be denied, they say.
For example, both the state and the county seek to support traditional agriculture, and have adopted so-called "Right to Farm" policies, which deny to agricultural neighbors the right to prevent annoyances that occur during ordinary agricultural practice, including dust, odors, insects and noise. Mygatt and Probst want this concept extended to residential uses, which they feel have certain impacts that are a natural, ordinary consequence of development which should be non-controversial and not subject to the veto power of the neighborhood... or the county, including the mere visible presence of a home.
"The neighbors don't own the view," Mygatt says. "The property owner does."
But in Boulder County, aesthetic and visual "impacts" are often given enormous, and some say inordinate, highly-subjective weight in approving or denying projects. The county's failure to distinguish between objective, fact-based regulations such as "thou shalt not dump polluted water into a stream," and subjective aesthetic judgements such as "thy house is ugly, remove it from sight," is where Boulder County seems to get into trouble with its citizens and the LUC.
"There's no question that the primary conflict area and the primary motivation is aesthetics," Probst says.
County officials disagree that there is any agenda to deny people their right to build a home. "People who are applying don't always initially want the same things that the land use and parks departments are looking for, but we find compromise and we find ways to make it a win/win situation," says Mendez. "There are people who come in here who want to build 20,000-square-foot homes," says Burrus. "The commissioners leave them with 'nope, you can't go build that home, it has to be this big and over here, so it doesn't impact all your neighbors.'" But not in Guercio's case, says Probst. The Caribou City project will include the right to build homes as large as 10,000 square feet in size.
Propst finds the exceptions being granted to Guercio galling and hypocritical in the face of the county's usual draconian restrictions on building footprints in the mountains.
"If Jim Guercio's subdivision was limited to 1,200-square-feet per lot, he would never build it," Propst says.
Critics question whether the county's, or the neighbor's vision should prevail over the vision of the landowner. They point out that the people who are complaining were most often exempt from such regulations because they got here first. It's unfair and hypocritical, says Probst, for people to object to new development if their own development hasn't been subjected to the same degree of scrutiny.
There is also an argument that the kinds of specific, detail- and design-oriented scrutiny the county typically engages in is a violation of the First Amendment. The argument says that architecture is art, and that art is "expressive speech," both of which are protected by law. "Oh, absolutely!" says Probst. "I think that for most people in this country, their private residence is the largest investment and the number-one expression of themselves, and therefore should be protected as an artistic expression."
Danish says that the commissioners understand this concern, and that they try hard not to dictate architectural decisions except as necessary to achieve what they feel are legitimate concerns that have a rational basis in the law. But critics argue that the standards which must be used are much higher than a simple "rational basis" test, which applies to most zoning law. The test, they suggest, is a "strict scrutiny" test which requires that the county have a "compelling interest" in regulating the protected activity.
But to what extent does the county have a compelling public interest in controlling the aesthetics of private homes?
The discipline of architecture traditionally includes not just the design of the structure, but the building's relationship with the land. This brings into question the qualifications of the commissioners, and even the LUD planning staff, to make such decisions, since they are not trained architects. Probst and Mygatt, among others, argue that a landowner's right to expression through architecture ought to generally supercede any objections by neighbors or the county based only on the visual impacts of the development.
"There is a point where the community's interest begins to exist, but that should be decided in the courts, by those who feel their rights are being harmed and the individual doing the building," Probst says. "Let the courts sort it out rather than getting government into defining what is acceptable architecture." Burrus poo-poos this argument.
"The Supreme Court has upheld decisions that say governments are right in taking those elements into consideration when making land use decisions," he says. Probst sharply disagrees that the aesthetic concerns of the neighbors should be given credence. "(The Constitution) sets a pretty high standard. The reason it's the First Amendment is because it's the number-one source of our freedom. Without the right of free speech, all the other rights are in peril. For the county to claim the right to infringe on that is, I think, very serious."
Guercio doesn't have to worry about it though, because the county is quite pleased with his Caribou Ranch design guidelines.
Northwest of Nederland, far from the madding crowds of Los Angeles, Jim Guercio built a recording studio that became the object of desire for some of the '70s most famous musicians. He had already established himself as one of the industry's long ball players, with an extensive history of playing and production credits extending back to the Buckinghams in the mid-'60s, including the Beach Boys, Frank Zappa and especially Chicago, whom Guercio managed from their days as an obscure L.A. club band to mega-stardom through the '70s. Although he is rightly regarded in the rock annals as a top flight producer, successful manager and owner of one of the best recording facilities in America during this period, he is still cheerfully remembered in the press as "ex-Beach Boy Jim Guercio," having filled in on a few early-'70s Beach Boy tours.
Funny, sometimes, the things that stick...
Caribou Ranch was as much spa and mountain retreat for rock superstars during the seventies as it was a place to work. Several comfortably attended cabins dotted the grounds around the studio, which Guercio built inside a renovated barn. The relative proximity of the posh guest cabins-as well as the gated privacy-led inevitably to wave after wave of rumored substance-inspired madness.
Guercio brought the creme of rock super-stardom not just to Caribou, but to Nederland and Boulder as well. You could be walking down Pearl Street one day and pass Mick Jagger or Don Henley or Joni Mitchell or Bernie Taupin, and that was only because Caribou was just up the hill.
The lasting legacy of Caribou, of course, is some of the best-recorded work from some of the best rock players in the '70s. Chicago cut several of its biggest early hits there. Stephan Stills recorded his timeless and still-fresh first solo album at Caribou, and Elton John recorded three massive-selling albums there. When you hear Joe Walsh's immortal "Rocky Mountain Way," guess what his view was.
Lesser known artists also worked there, like George Duke, the German prog outfit Lake, Jan Hammer and Supertramp- who's arguably best LP Even In The Quietest Moments features a picture of a snow-draped piano outside Caribou. Lead singer Roger Hodgson, in search of that perfect vocal take, actually recorded part of one song in a freight elevator.
Rumor has it that Caribou had more platinum albums hanging on its walls than any other studio in America. When the studio, along with many irreplaceable master tapes, burned in 1985, a piece of rock history danced skyward on its fading embers. Caribou, the Legend had passed into history as one of rock and roll's greatest places, surrounded by one of the greatest places on earth.