REVIEW AND ANALYSIS OF
GRAND COUNTY, COLORADO, LAND USE LAWS
RELATED TO WATER QUALITY PROTECTION
Pursuant to
United States Environmental Protection Agency
Contract No. WT-6-99-0501-A
Submitted by
WHITE & BURKE,
Professional Corporation
Henry W. Ipsen
David F. Jankowski
Robert L. Hiller
Michael D. White
1100 University Building
910 Sixteenth Street
Denver, Colorado 80202
(303) 572-7720
January 28, 1977
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Table of Contents
Page
I. Introduction and Purpose of Project 1
A. General Background of Study 1
B. Nonpoint Sources Studied 3
C. Assumption of Nonpoint Source Generation 5
D. Local Laws and Regulations Considered 5
E. Contact with Local Officials 6
F. Relationship to §208 Areawide Waste
Treatment Planning and Management 6
II. Review and Analysis of Local Plans, Laws, Regulations,
and Ordinances, and Specific Recommendations for
Improving Such 8
A. Grand County 8
1. Conclusion • • 8
2. Master Plan (As Adopted in January, 1970) 8
a. Mineral Point as Ski Area 9
b. Potential Land Use Map 9
c. Capital Improvements 9
d. General Considerations Re: Master Plan 9
3. Zoning Regulations 13
a. Purpose and Scope 13
b. Enumeration of Districts 13
(1) Estate District 13
(2) Residential District 14
(3) Accommodations District 14
(4) Forestry and Open District 14
(5) Mobile Home District 14
(6) Tourist Matrict;^ '—" ' •--"-• 15
(7) Business Distinct- rr-,—n —-v- 15
(8) Unclassified District ~ 15
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c, General Considerations Regarding
Zoning Districts 15
(i Encourage Intensive, Sprawling
Land Use 15
(2) Lack of Water Quality—ReLited
Standards
(3) I eview of Zoning Map 17
d. Special Use Permits 13
(1) CampIng Areas 19
(2) Airports, Cemeteries, Water Treatment
Plants, Landfills, Sewage Disposal
Sites - 19
(3) Lumber and Ore Mills, Mines, Quarries,
Sand and Gravel Operations 19
(14) Mobile Home Parks 19
(5) Unclassified Zone Uses 19
(6) Mobile Homes 19
(7) Review Standards 20
e. General Considerations Regarding
Special Use Permits 20
(1) Absence of Water Quality—Related
Standards or Review Requirements 20
(2) Expansion of Scope of Special Use
Section 21
(3) Uses Which May Be Hazardous Per Se 21
f. Floodplain Regulation 22
g. Amendments to the Zoning Resolution 23
h. Variances 24
4. Subdivision Regulations
a. Purpose and Scope 25
b. Exemptions 27
c. Special Site Considerations 27
d. Dedications and Public and
Private Reservations 29
e. Design Standards for Drainage, Sewer,
and Water 29
f. Design Standards for Mineral Resource Areas 31
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g. Surface Improvements - 31
h. Utilities 32
1. Procedural and Submission Requirements 32
j. Design Standards and Review Procedures
for Apartment Houses, Condominiums, and
Townhouses 34
k. Variances 34
1. Amendments 35
m. General Considerations 35
(1) Regulation of Ongoing Developments 35
(2) Encouragement of Intensive and
Sprawling Land Use Patterns 36
(3) Absence of Water Quality—Related
Standards 36
5. Individual Sewage Disposal Regulations 37
6. Planned Unit Development Regulations 37
a. General Provisions 38
b. Procedures and Submission Requirements 38
(1) Submission and Review Requirements 38
(2) Referral Requirements 39
(3) PUD as Special Review Use 39
c. Minor Modifications and Amendments 39
d. Specific Uses and Requirements 41
(1) Common Open Space 41
e. General Considerations Regarding PUD
Regulation 41
(1) Regulation of Ongoing Development 41
(2) Absence of Review Standards 41
7. Building Codes 42
a. Detailed Regulations —— Excavations,
Foundations, and Retaining Walls 42
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b. Excavation and Grading — 62
c. Board of Appeals 43
8. Potential New Regulations for Regulation of
Development Activities Creating Water Quality
Iripacts 44
a. Regulations Suggested for Adoption 45
b. Regulations Which Might Be Considered
for Further Study 46
B. Town of Grand Lake 46
1. Conclusi on 47
a. Purpose and Scope 47
b. Zoning Districts 48
(1) Open District 48
(2) Residential Districts 49
(3) Mobile Home District 50
(4) Commercial Districts 50
(5) Industrial Districts 51
c. General Considerations Re: Zoning
Districts 52
(1) Potential for Sprawling Land Use 52
(2) Lack of Water Quality—Related
Siting Standards 53
(3) Conditional Use Standards 54
(a) Submission and Review Standards ——— 54
(b) Expansion of Scope of Con-
ditional Use 55
(c) ITses Hazardous Per Se 55
(d) Authority 56
(4) MobIle Home Floating Zone 56
(5) Industrial District Performance
Standards 57
(a) Water Pollution References 57
(b) General Standard 57
(c) Outdoor Storage and Waste
Disposal 58
Cd) Uses by Right ir. IC District 58
(e) Application to Commercial and
Other Uses 58
(6) Authority 59
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d. Supplementary Regulations — 59
(1) Off—Street Parking and Unloading
Regulations 59
(2) Conditional Use Regulations 59
e. Variances 60
f. Amendments 61
2. Building Codes 62
a. Authority 62
b. Specific Provisions: Chapters 29 and 70,
UBC 1970 63
c. Specific Provisions: Board of Appeals 63
3. Nuisance Regulations 63
4. Potential New Regulations for Control of
Development Activities Creating Water
Quality Impacts 64
a. Ordinances Suggested for Adoption 64
C. Three Lakes Planning Commission 66
1. Authority of Commission 66
2. Suggested New Regulations 67
D. Water and Sanitation Districts 67
1. Authority of Water and Sanitation Districts 68
2. Grand Lake Water and Sanitation District 71
E. Three Lakes Water and Sanitation District 72
1. Three Lakes Water and Sanitation District
Enabling Legislation 72
2. District Master Plan 75
F. Grand Lake Metropolitan Recreation District 76
1. Metropolitan Recreation District Enabling
Legislation 76
2. Recommended Rules and Regulations 77
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G. Federal Lands — 78
III . Proposed Ordinances 81
A. Master Plan 81
B. Regulation of Development on the Basis of Water
Quality Impacts 83
1. Impact Analysis Regulation 83
a. Scope 83
b. Nature of the Review ———— 84
c. Exemptions —_ 84
d. Performance Standards and Review Criteria ——— 84
e. Enforcement 84
2. Impact Zoning 85
a. Scope 85
b. Regulatory Approach 85
c. Review and Performance Standards 85
d. Enforcement 86
C. Floating Zone 86
1. Scope 87
2. Regulatory Approach — 87
3. Enforcement ———— 88
D. Subdivision Regulations 88
E. Planned Unit Development Regulations ———— 89
F. Individual Sewage Disposal Regulations 91
1. Scope 92
2. Regulatory Approach —‘ 92
3. Enforcement 92
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C. Erosion Control Regulations — 94
1. Scope 9
2. Nature of the Review 94
3. Exemptions 94
4. Performance Standards 95
H. Grading and Excavation Regulations 95
1. Nature of the Review 96
2. Exemptions 96
3. Performance Standards 96
a. General 96
b. Specific 96
c. Permit Conditions 97
d. Inspection Requirements 97
I. Drainage Regulations 97
1. Scope 97
2. Nature of the Review 98
3. Exemptions 98
4. Specific Requirements 98
5. Statutory Authority 99
J. Regulation of Critical or Hazardous Areas and
Activities 99
1. Site Selection of Major New Domestic Water
and Sewage Treatment Facilities 101
a. Scope 101
b. Nature of the Review 101
c. Exemptions 101
d. Criteria for Approval 101
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2. Major Extensions of Existing Domestic Water
and Sewage Treatment Facilities 102
a. Scope 102
b. Nature of the Review —— 102
c. Exemptions 103
d. Criteria for Approval 103
3. Site Selection and Development of Solid Waste
Disposal Sites 104
a. Scope —— 104
b. Nature of the Review 104
c. Exemptions 104
d. Criteria for Approval 104
4. Site Selection and Development of New
Communities 105
a. Scope 105
b. Nature of the Review 106
c. Exemptions ———— 106
d. Criteria for Approval 106
5. Natural Resource Area of Statewide Importance ——
Shorelands of Major Publicly—Owned Reservoirs --—— 106
a. Scope 106
b. Nature of the Review 106
c. Exemptions 107
d. Criteria for Approval 107
6. Mineral Resource Areas 107
a. Scope 107
b. Nature of the Review 108
c. Exemptions 108
d. Criteria for Approval — 108
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7. Natural Hazard Areas —— Floodplains — 109
a. Scope 109
b. Nature of the Review 109
c. Exemptions 109
d. Criteria for Approval 109
8. Natural Hazard Areas — — Geological Hazards 110
a. Scope 110
b. Nature of the Review —— 110
c. Exemptions 110
d. Criteria for Approval 110
9. Significant Wildlife Habitat 111
a. Scope 111
b. Nature of the Review 111
c. Criteria for Approval 112
K. Shoreline Protection Regulations 113
1. Stream and Shoreline Setbacks and Buffer Zones ——— 113
a. Scope and Nature of Review 113
b. Performance Standards and Review Criteria ——— 113
2. Shoreline Management Plans 113
a. Scope and Method of Review 113
L. Campground and Recreational Area Regulations 114
1. Scope 114
2. Nature of the Review 115
3. Exemptions 115
4. Performance Standards 115
a. State Health Department Regulations 115
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b. Cen ra1 Zoning Requirements — 115
c. Review Standards 116
M. Litter Control Regulations 116
1. Scope 117
2. General Regulatory Approach 117
3. Exemptions 117
N. Regulation of Sources from Marinas and Boats 118
0. Regulation of Existing Development 119
1. Regulation Through Use of Building Permits 120
a. Regulation Through Zoning 121
(1) Enabling Legislation 121
(2) Potential Difficulties 121
(a) Definition of Terms
“Buildings” and “Structures’ t 121
(b) Impact of Prior Subdivision or
Plat Approval 123
b. Regulation Under Building Code 125
(1) Enabling Legislation 125
(2) Potent al Difficulties — 126
(a) Disadvantages of Building
Code Regulation 126
(b) Other Difficulties 126
2. Regulation of Nonconforming Uses 128
a. County Authority Over Nonconforming Uses ———— 128
b. Proposed Regulatory Scheme 129
3. Nuisance and Health Regulatios 130
a. County Authority 130
(1) Case Law 130
(2) Enabling Legislation 132
(a) County Health Statutes 132
(b) Other Legislation 135
(1) Solid Waste Disposal 135
(ii) Individual Sewage Disposal ——— 135
(iii) State Criminal Code 135
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b. Proposed Regulatory Scheme — 136
4. Regulation Under H.B. 1041 137
5. Regulation Under H.B. 1034 139
IV. Memorandum Re Legal Questions 143
A. Legislative History 143
B. Terms of the Act 144
C. Correspondence with Legislators 146
D. Other Law Relating to Question of Scope of Review 149
1. Statutory Comparison 149
2. Colorado Case Law 149
a. Taxation in Absence of Benefit 149
b. Governmental v. Proprietary Nature
of Services 151
c. Water and Sanitation District as a
Public Utility 151
E. Conclusion 153
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I. INTRODUCTION AND PURPOSE OF PROJECT .
A. General Background of Study .
The Three Lakes area of Grand County, Colorado, located
generally between the towns of Granby and Grand Lake, is an
area of rare natural beauty, which attracts thousands of
visitors annually. Perhaps the most attractive feature of
the area, notwithstanding the clear streams and surrounding
mountain peaks, is the three lakes themselves -- Grand Lake,
the largest natural lake in Colorado, and Granby Reservoir
and Shadow Mountain Reservoir, two high mountain reservoirs
constructed and operated by the United States Bureau of
Reclamation. Recognizing that the intense public use of
this area was leading to serious water quality problems in
each of the three lakes, the Colorado legislature, in 1971,
created the Three Lakes Water and Sanitation District in an
attempt to provide a mechanism to deal with those problems.
See 1971 Cob. S.L., S.B. 371, codified as §32-10-101 et
seq., C.R.S. 1973. That organic act vested the District
with the responsibility of submitting to the Grand County
Coninissioners “. . . a comprehensive master plan for the
development, maintenance, operation, and financing of a
proposed sanitary sewer transmission and disposal system” by
December 31, 1972. §32-10-179, C.R.S. 1973.
The District did develop such a master plan. See
Regional Water Quality and Sewage Master Plan for theThree
Lakes Water and Sanitation District (NHPQ, 1972). The
District also submitted its application for a grant for
partial funding of its wastewater collection system and a
facilities plan to the EPA Region VIII office in Denver,
Colorado. In a letter dated August 4, 1975, the EPA noti-
fied the District that its proposal was not in the best
interests of the environment and would not therefore be
approved. Letter from Regional Administrator Green to Three
Lakes District Board, August 4, 1975. We are informed that
the District is in the process of revising its proposal
prior to resubmission thereof.
In disapproving the District’s proposal, the EPA cited
eight specific aspects of the proposal as reasons for dis-
pprova1. One of these issues, as elaborated in the above-
mentioned letter and a prior EPA position paper regarding
the District’s proposal, focused upon EPA’s concern that the
proposed system was “questionable on growth, growth loca-
tion, and related land use issues.” More specifically, EPA
was concerned that funding of the system would generate
significant nonpcint sources of water pollution within the
three lakes area by encouraging land development and other
land-disturbing activities, and thereby cause the water
quality of the lakes to worsen rather than improve. Indeed,
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an EPA study completed in 1974 had concluded that failure to
control nonpoint sources of water pollution within the three
lakes area could degrade existing water quality. As revealed
in its position paper, the EPA was particularly concerned
that the land use regulatory programs of Grand County and
other local governments within the area were inadequate to
control the nonpoint sources that the District’s project
might generate.
It was from the above-described EPA concern that the
current study evolved. As the statement of purpose in the
contract for this study provides:
“The purpose of this contract is to prepare a re-
port which analyzes all local governmental land
use laws applicable to the Three Lakes area, in
conjunction with applicable Federal and State laws,
to determine the adequacy of these laws and
administration for protecting water quality in
the Three Lakes area from point and non—point
sources of water pollution. The report will make
recommendations to local government entities
with jurisdiction in the Three Lakes area for
strengthening the substance and administration
of these laws to better protect water quality.”
To achieve this purpose, the contract calls for the
performance of six specific work items. These include:
1. A review of certain documents forming the his-
torical public record on the wastewater facility
treatment plan under consideration by the Dis-
trict. Contract, §6.a.
2. A review of certain EPA studies and documents to
become familiar with the nature and control of
nonpoint sources. Contract, §6.b.
3. Meeting with officials of the appropriate local
entities within the three lakes region. Contract,
§6.c.
4. Researching all land use-related plans, laws,
regulations, and ordinances in effect in or
adopted by any local governmental entity within
the Three Lakes Planning Area to determine their
effectiveness for preventing and controlling
nonpoint sources of pollution. Contract, H6.d.,
e.
5. Making specific recommendations for strengthening
such when necessary. Contract, §6. f.
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6. Proposing model ordinances or other legal mech-
anisms which could be adopted by Grand County to
control such sources. Contract, §6.g.
In addition, the contract requires that the legislative
history of §32-10-101 at seq., C.R.S. 1973, and the statute
creating the Three Lakes Water and Sanitation District, be
reviewed to determine the following:
1. Is the Three Lakes Water and Sanitation District
required to construct a wastewater treatment
system which does not discharge treated effluent
into any of the three lakes (Grand Lake, Shadow
Mountain Reservoir, Lake Granby)?
2. Is the Three Lakes Water and Sanitation District
obligated to provide centralized sewerage collec-
tion and treatment service to all property owners
within the District? Contract §6.h.
It should be noted that, despite the EPA’s primary con-
cern over the potential for nonpoint source pollution, the
contract also calls for an analysis of local laws to deter-
mine their adequacy in regulating point sources as well.
This study, therefore, will analyze such 1 .ocal laws and
regulations from each perspective.
B. Nonpoint Sources Studied .
No legal analysis of the adequacy of the local laws and
regulations in effect in the three lakes region in con-
trolling nonpoint sources of water pollution could be under-
taken without an awareness of the nonpoint sources existing
in the Grand Lake area. This information was provided by
the engineering consultant for this project who, acting pur-
suant to the contract for this study, based its determina-
tion upon certain EPA studies and documents, see §6.b. of
attachment to contract, and upon its knowledge of conditions
in the three lakes area. The engineering consultant’s
conclusions were delivered to the legal consultant by a
letter of September 1, 1976. See Appendix.
In its letter, the engineering consultant defined a
nonpoint source of water pollution as one which is non-
discreet and diffuse and not amenable to conventional treat-
ment. The consultant noted that the EPA studies identified
sediment as the main source of nonpoint source pollution,
with construction, silviculture, urbanization, agriculture,
mining, and hydrographic modifications as the primary con-
tributors of sedimentation and other pollutants to surface
and groundwater. In the three lakes region in particular,
the engineering consultant identified urbanization and
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related construction activities as the major activities
contributing to sedimentation, finding that the other activ-
ities produce only minor sedimentation. The consultant went
on to identify further the following specific activities as
generators of nonpoint source water pollution:
“ Construction of buildings, roads and related
structures . In many cases construction is pre-
ceded by clearing of the site followed by
excavation for basements or foundations. The
cleared and excavated material is left unpro-
tected and exposed to wind and water erosion.
Roads and driveways are often constructed with
little or no consideration of drainage patterns
resulting in steep slopes susceptible to gully—
ing and washing. Unpaved roads with open
drainage ditches on each side provide a con-
tinuous source of sediment that is transported
by wind, rain and melting snow.
“ Motor bike, horse and hiking trails disturb
vegetation and create channels for surface run-
off. In addition to natural sediments derived
from erosion such trails also provide a source
of man made debris.
“ Campgrounds provide areas of little or no soil
cover accompanied by man made trash and debris
that is susceptible to wind and water transport
to the lakes.
“ Urbanization of areas around the lake provide
paved streets, parking lots, shops, restaurants
and concentrations of people which generate
sediment and other pollutants.
“ Lawn watering and washing of cars, docks, boats
and gas pumps also contribute sediment and other
pollutants. Runoff from fertilized lawns is
high in nitrate. Water used to wash cars, boats,
gas pumps and work areas also transmit sediment
and other pollutants.”
The engineering consultant also identified other nonpoint
sources in the three lakes region as:
1. Boats, contributing oil, grease, waste, and trash.
2. Animal waste from horses, domestic pets, and
roaming dogs.
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3. Thermal pollution, contributed by cutting of trees
along shorelines, resulting in increased growth of
aquatic plant life.
The legal analysis of existing local laws and regula-
tions undertaken by the legal consultant largely reflect the
findings of the engineering consultant. Most if not all of
the recommendations for strengthening existing laws or
proposing new ones revolve around the need to control the
specific pollutant sources identified by it.
C. Assumption of Nonpoint Source Generation .
As of the date of this study, a number of proposed pro-
jects for treatment facilities have been considered by the
EPA and the District. For example, the District has pro-
posed a new regional collection system with central treat-
ment south of Lake Granby. In rejecting this proposal, EPA
suggested an upgrading of existing facilities combined with
certain other measures as an alternative. Letter of Admin-
istrator Green, August 4, 1975. We are informed by its
attorney that the District is now considering a system
differing from both of the above. In addition, the District
has previously considered a number of other potential types
of treatment facilities.
For the purposes of this study, the consultants have
not studied the adequacy of local laws and regulations in
terms of any one or more of the specific facilities plans
proposed or considered by the District or by the EPA.
Rather, it has been assumed that the construction of any new
treatment facilities or major upgrading of existing facil-
ities will generate land development and other land-dis-
turbing activities which will in turn result in the in-
creased introduction of certain nonpoint source pollutants
into the lakes. Based upon this assumption, local laws and
regulations have been studied to determine their adequacy
for minimizing the introduction of any such pollutants into
the lakes. This approach conforms to the mandate of the
study contract, which does not attempt to confine the study
to a review of the impact of the implementation of one or
more specific plans upon the water quality of the lakes. It
is hoped that this approach will also prove more useful to
the District and other entities concerned with the lakes’
water quality by providing a broadly-based rather than
narrow review of the problem under study.
D. Local Laws and Regulations Considered .
The study contract requires review of all land use-
related laws, regulations, ordinance, and plans officially
adopted or enacted by all governmental entities within the
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Three Lakes Planning Area, Contract, §6 .d., which area
constitutes that area encompassed within the jurisdiction of
the Three Lakes District Planning Commission. These en-
tities include all or part of each of the following:
1. Grand County;
2. Town of Grand Lake;
3. Grand Lake Water and Sanitation District;
4. Shadow Mountain Sanitation District;
5. Columbine Lake Water and Sanitation District;
6. North Shore Water and Sanitary District;
7. Three Lakes Water and Sanitation District;
8. Metropolitan Recreation District;
9. Three Lakes District Planning Commission.
An extremely broad interpretation of the phrase “land
use related laws, regulations, and ordinances” was made by
the consultants, and the various entities identified above
were requested to provide the consultants with any applic-
able materials even if remotely related to land use regula-
tion. As subsequent sections will indicate, even utilizing
such an approach, it was discovered that several of the
named entities had no ordinances which fit within the con-
tract’s categorization. Indeed, some had developed no laws,
regulations, or ordinances of any kind. Where such is the
case, note will be made in the subsequent appropriate sec-
tion. In all other cases, pertinent matter has been re-
viewed and commented upon.
E. Contact with Local Officials .
The consultant has contacted, explained the study to,
and sought the assistance of at least one official or
employee of each of the entities named in §I.D., supra . In
addition, the legal consultant appeared on November 1, 1976,
at a public meeting of the Board of County Commissioners of
Grand County to present its preliminary conclusions in this
study. Each of the commissioners, as well as certain members
of the county planning staff, was present at that meeting.
The legal consultant also appeared at a similar meeting on
January 3, 1976, to present its draft study for the review
and comments of interested parties, and to receive criticisms
and suggestions thereon.
F. Relationship to §208 Areawide Waste
Treatment Planning and Management .
Section 208 of the Federal Water Pollution Control Act
Amendments of 1972 requires that areawide waste treatment
management plans be developed for certain areas having high
urban-industrial or other water quality problems. A major
facet of that planning, and of the subsequent management of
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the plan, is the reduction of the kinds of point and non-
point source water pollutants which are degrading the three
lakes. As of this writing, the Northwest Council of Govern-
merits, whose boundaries include Grand County, is preparing a
§208 plan which will include the County. It can probably
safely be said that the plan will present ways of controlling
the sources identified by the consultant and other sources
in order to enhance the lakes’ water quality.
Despite the apparent overlap of the efforts of the
Northwest COG and of the consultant herein, this study has
been carried out without reference to the ongoing §208
planning effort in Grand County. Because the §208 plan for
the Northwest COG is still not near completion, because the
three lakes region constitutes only a small portion of the
COG, and because the contract for this study demanded it,
the consultant has prepared this study independent of any
requirements which §208 or the plan developed thereunder may
impose upon the entitites under study herein. Those entities
should be aware of the fact that they may in the future
become responsible for taking measures similar to some of
those suggested herein in order to regulate the introduction
of water pollutants into waters within their respective
jurisdictions. This study must not, however, be envisioned
in any way as a substitute for §208 planning or a reason for
nonparticipation therein.
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II. REVIEW AND ANALYSIS OF LOCAL PLANS, LAWS,
REGULATIONS, AND ORDINANCES, A D SPECIFIC
RECONMENDATIONS FOR IMPROVING SUCH .
The main focus of this study concentrates upon the
review and analysis of local plans, laws, regulations, and
ordinances in effect in the Three Lakes Planning Area to
determine their adequacy for controlling point and nonpoint
sources of water pollution. This review will result in cer-
tain specific recommendations for strengthening, where
necessary, the existing regulatory schemes. Though these
requirements are set out. in three separate sections of the
study contract, see §6.d.e.f., each will be discussed within
this section. This will enable specific recommendations to
be made in direct conjunction with perceived weaknesses in
the various materials studied. It is intended by this
procedure to avoid undue duplication in the study and to
provide an easy reference for the reader. Each particular
plan or regulatory device of the local entities studied will
be discussed individually.
A. Grand County .
Due to the fact that the primary land use jurisdiction
over the majority of the private land within the three lakes
region is in Grand County, the County will be the entity
responsible for the regulation of most of the development
which will result from any new or upgraded treatment facil-
ities. As a result, the effectiveness of its land use
regulations is of special importance in this study. The
consultants have reviewed and analyzed the following County
maps, plans, and regulations:
1. Master Plan;
2. Zoning Regulation;
3. Subdivision Regulation;
4. Individual Sewage Disposal Regulation;
5. Building Code;
6. PUD Regulation.
The results of the review are outlined below.
1. Conclusion .
Certain existing local regulations need improvement in
varying degrees to protect water quality from potential non-
point sources. Also, there is a need for certain new regu-
lations which do not currently exist.
2. Master Plan (As Adopted in January, 1970) .
Several significant features of the Master Plan, if
implemented, might create nonpoint source problems.
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a. Mineral Point as Ski Area .
Mineral Point on the west side of the Kawunechee Valley
is suggested as a possible ski area site. Construction or
upgrading of wastewater treatment facilities would add
impetus to develop such, which would in turn generate a
significant amount of residential and commercial develop-
ment. This would lead to introduction of construction and
urbanization nonpoint sources, as well as certain others,
into the lakes via the North Fork of the Colorado River
which runs through the valley. The Master Plan itself does
not specify any intent to control nonpoint sources generated
by this or other development. These are found, if anywhere,
in the regulatory tools implementing the Plan, such as
zoning, discussed below.
b. Potential Land Use Uap .
A map appended as a part of the Master Plan delineates
potential areas for future residential, commercial, and
other development. A large part of such is shown to be
located along the shores or in the very near vicinity of the
lakes or streams tributary to the lakes. While this does
not mean that point or nonpoint source pollution is inevit-
able, it does create a significant risk thereof in the
absence of adequate controls. No such controls are proposed
in the Master Plan.
c. Capital Improvements .
The Master Plan contains an important section estab-
lishing certain criteria for the evaluation of proposals for
capital improvements. This section could assume significa it
importance in evaluating any proposals by the District under
§32-10-179, C.R.S. 1973. None of these criteria specifically
address the developmental impacts of such proposals or the
nonpoint sources which might be generated thereby. Arguably,
however, these considerations could be made under criteria
No. 3 dealing with protection of local resources or criteria
No. 8 dealing with the aesthetic qualities of the area.
d. General Considerations
Re: Master Plan .
If nonpoint sources are to be regulated in accordance
with the Master Plan, substantial revision of the Plan to
record this intention is necessary since the Plan makes no
mention of that or any other “environmental” concerns.
County authority over the actual location of any new
treatment facilities or any upgrading of such might be exer-
cised under the Master Plan under §30-28-110(1), C.R.S.
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1973. That section states that, whenever a county has
adopted a master plan, no public way, ground, space, or
other structure or no public utility may be constructed or
authorized unless the proposed location and extent have been
submitted first to the county planning commission. If Grand
County were to amend its Master Plan to comprehend the above
items, the County could possibly alleviate nonpoint source
problems before they occur by regulating the scope of the
proposed facility in accordance with the County Master Plan.
This would not eliminate the need for subsequent zoning,
subdivision, and other controls, but might make regulation
thereunder easier by providing a manner by which to reduce
the scope and extent of the facilities, and thus the land
use impact resulting therefrom.
There are two caveats which must be offered. The first
concerns administrative riview of any planning commission
disapproval of a facility site. That disapproval may be
overturned by a vote of the county commissioners or by the
body or official having jurisdiction over authorization or
financing of the project. §30-28-llO(l)(b), (c), C.R.S.
1973. If the District is such a body, it could overturn any
disapproval despite the plan (as could the County Commis-
sioners, though they might feel more of a duty to comply
with their own plan). Since the District has responsibility
for constructing, maintaining, and operating any facilities,
it is arguable that it would be the body with ultimate
jurisdiction. Section 30-28-179, C.R.S. 1973, may be to the
contrary. It provides:
“Not later than December 31, 1972, the board shall
submit to the board of county commissioners of
Grand county a comprehensive master plan for the
development, maintenance, operation , and financing
of a proposed sanitary sewer transmission and
disposal system. The master plan shall contain
provisions for the acquisition or utilization, by
purchase, lease, or other agreement, of existing
facilities planned, constructed, or operated by
existing municipalities and special districts
having area within the boundaries of the district.
The board of county commissioners shall proceed
to hold public hearings on the master plan in
like manner as provided in part 2 of article 1
of this chapter, relating to service plans.”
(emphasis supplied)
No indebtedness may be incurred by the District prior
to County Commissioner approval of the District’s Plan.
Despite the general jurisdiction of the District over its
own facilities, this section may mean that the County Com-
missioners would be the proper body to review any Planning
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Commission disapproval, since it appears to provide the Com-
mission with jurisdiction over authorization and financing
of the District’s facilities. Such might well mean that any
Planning Commission disapproval would be more likely to
stand, and would in any case mean that the County would have
ultimate authority over the location and extent of the
District’s facilities -- giving it indirect control over
their impact.
The second caveat concerns the County’s existing
approval of the District’s Master Plan in March, 1973. It
may be that this approval forecloses any further necessity
or possibility of further County review of District plans.
It is arguable that the County is not so foreclosed.
The master plan which the County approved is the
“Regional Water Quality and Sewage Master Plan for the Three
Lakes Water and Sanitation District,” developed by Nelson,
Haley, Patterson, and Quirk (N}IPQ). That plan, at page 49,
presented the following alternative methods of sewage dis-
posal:
“1. Vaulting the sewage and trucking it out of
the basin for treatment;
“2. Individual non—discharging treatment facilities
for each user;
“3. Numerous sewage treatment plants to treat
sewage from small clusters of users;
“4. Several larger plants to treat sewage from
major collection centers; and
“5. A single collection, transmission and treat-
ment system for the entire area.”
After reviewing each of these proposals, NHPQ recommended
that “. . . a regional sanitary sewer system . . .“ having
sufficient collection, transmission, treatment, and disposal
facilities to serve all by a limited number of isolated
facilities be adopted. This is alternate No. 5 of those
listed. Such were the recommendations approved by the Grand
County Commissioners.
In view of the foregoing, the following arguments may
be asserted for the claim that future commissioners’ approval
is not foreclosed:
1. The County Commissioners would be entitled to
approve a separate District plan should the EPA
eventually reject the existing and once-approved
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plan. It would seem that drafting of a new plan
would require new Commissioner action under §3210-
179, C.R.S. 1973.
2. Even if an entirely new plan is not required, the
County Commissioners would be entitled to reapprove
the District’s plan if the recommended alternative
is not implemented or if an changes therein are
required by the EPA. A review of the Master Plan
indicates that the County Commissioners can be
said to have approved onljr the recommended alter-
native. No information as to the “location or
extent” of any of the other alternatives was
presented in the study. Thus, approval of the
Master Plan by the County Commissioners under §32-
10-179, C.R.S. 1973, may not constitute approval
of the “location or extent” of the nonadopted
alternatives under §30-28-110, C.R.S. 1973.
Similarly, if EPA did approve a variant of the
original plan, its action in doing so would
nullify original County approval. The County
would, therefore, be required to reapprove any
variations in the original Plan.
Acceptance of the foregoing arguments would permit the
County to reapprove the District’s Master Plan. The argu-
ments are speculative to the extent that they depend upon
certain facts which may not yet have been determined.
Consideration of this approach should be made, however, due
to the important authority the County may be able to derive
from §30-28-110, C.R.S. 1973.
There may be an additional reason for amending the
County’s Master Plan. Under the Special District Control
Act, the Board of County Commissioners is authorized to
approve or disapprove the service plan of a proposed special
district, such as water and sanitation districts. § 32-1-
203, 204, 205, C.R.S. 1973. Among the grounds upon which
disapproval may be based is that the District service plan
fails to conform substantially to the County master plan .
§30-l-205(l)(g), C.R.S. 1973. It is arguable that this
provision may provide Grand County with authority to review
final District facility plans even if it is now foreclosed
from exercising its §30-28-110 powers with regard to master
plans. There are certain difficulties with this contention.
Jurisdiction to approve a facility plan attaches when a
petition for the formation of a new proposed special dis-
trict is filed in the district court. §32-1-203, C.R.S.
1973. The Three Lakes District was formed by the Colorado
legislature in 1971. Unless it can now be successfully
argued that approval of the District’s plan is now possible
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on the basis that the County had no prior opportunity to act
under the Special District Control Act, the Act’s applica-
bility seems questionable. This may be particularly true in
light of the 1973 review of the District Master Plan.
A second problem centers on the question of whether
approval of the District’s Master Plan constituted, for all
purposes, service plan approval. Section 32-10-179, C.R.S.
1973, provides that review of the District’s master plan by
the County shall proceed as review of a service plan under
§32-1-201 et seq., C.R.S. 1973. The legislature may have
eliminated separate service plan review by inclusion of this
section.
In light of the above problems, the Special District
Control Act may not be useful to the County. It is worth
considering despite this, however, because of the land use
control benefits which could be achieved by its application.
3. Zoning Regulations .
a. Purpose and Scope .
The zoning regulations prohibit the use of buildings,
structures, or land, and the construction and alteration of
buildings or structures except as specified therein.
b. Enumeration of Districts .
Grand County’s zoning resolution divides the County
into eight types of districts. A brief description of each
follows.
(1) Estate District .
The estate district is the most restrictive of the
eight types. It permits single-family development as of
right on lot sizes as follows:
--unsubdivided land, two acres;
- -subdivided land not served by water or sewer facil-
ities, one acre;
- -subdivided land served by either water or sewer facil-
ities, 20,000 sq. ft.;
--subdivided land served by water and sewer facilities,
10,000 sq. ft.
In addition it permits certain agricultural uses, recrea-
tional uses, and public utility uses as of right. Certain
lot width, setback, and building height limitations are
provided.
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(2) Residential District .
Single- and multi-family dwellings, boarding houses,
and rest homes, medical offices, and clinics are permitted
as of right. Lot sizes, corresponding to the same categori-
zation described in conjunction with the estate district,
are two acres, 30,000 sq. ft., 15,000 sq. ft., and 7,500
sq. ft., respectively. Certain agricultural, recreational,
and public utility uses may also be maintained as of right.
Lot width, setback, and building height restrictions are
also included.
(3) Accommodations District .
All uses permitted in the residential district, plus
hotels, motels, lodges, and cabins are permitted as of
right. Outdoor recreational uses, provided all uses retain
natural environmental conditions and are not objectionable
due to excessive noise, dust, odors, or vibrations, are also
permitted as of right. Camping areas are permitted by
special use. The minimum lot size is one acre. Lot width
and setback restrictions also apply.
(4) Forestry and Open District .
All uses in the residential and accommodations dis-
tricts and commercial feed yards, fur farms, kennels, and
riding stables are permitted as of right. By special ise
permit, airports, cemeteries, radio transmitters, water
treatment facilities, landfills, sewage disposal sites,
lumber and ore mills, quarries, sand and gravel operations,
and mobile homes appurtenant to agricultural uses may be
located. Lot area must be at least two acres and lot width
200 feet. No other restrictions are applicable.
(5) Mobile Home District .
All uses permitted in the residential district and
individual mobile homes are permitted as of right. Mobile
home parks are a special use. Minimum lot sizes are the
same as those specified in the residential iistrict. Mini-
mum lot width is as follows:
--unsubdivided land, 200 feet;
--subdivided land not served by sewer or water, 120 feet;
--subdivided land served by either sewer or water,
60 feet;
--subdivided land served by both sewer and water, 60
feet.
Setback and building height restrictions are provided.
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(6) Tourist District .
All uses enumerated in the residential and acconimoda—
tions districts are permitted as of right. In addition,
general business uses are permitted as of right provided
that no objectionable amounts of noise, odor, dust, smoke,
or vibration are emitted beyond property lines, and outdoor
storage is enclosed. Minimum lot size is one acre. Lot
width and setback restrictions exist.
(7) Business District .
All uses in the residential, tourist, and accommoda-
tions districts are swept into this zone as of right. Gaso-
line stations and other enumerated business and commercial
uses are permitted, the latter being subject to the restric-
tion that they emit no objectional noise, odor, smoke, dust,
or vibration beyond the Business District and to the restric-
tion that outdoor storage be enclosed. Mobile home parks
are a special use. Minimum lot size is one acre.
(8) Unclassified District .
The unclassified district permits by right all uses
which are not otherwise unlawful; certain enumerated indus-
trial uses require special use approval. All uses which may
be offensive or obnoxious are also required to be submitted
to special review. The only expressed restrictions are a
30-foot front yard and a 200-foot setback from adjoining
district restriction.
c. General Considerations Regarding
Z ning Districts .
(1) Encourage Intensive, Sprawling
Land Use .
Under the existing zoning regulations, all private land
in the three lakes region is subject to development upon lot
sizes of no more than two acres and a large portion is sub-
ject to development on sizes down to 7,500 sq. ft., due par-
ticularly to the cumulative zoning approach of the County.
Uses which may be instituted on such lots run the gamut from
residential to accommodations to various business and com-
mercial uses. Most of these uses are permitted as of right.
The sort of development encouraged by such a zoning scheme,
in the absence of other controls, would likely result in an
intensive, urbanized usage of private land in the district.
This type of land use, which is easily subject to enhance-
ment by the provision of public, centralized sewage disposal,
could create substantial construction- and urbanization-
related nonpoint sources of water pollution, including
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increased sedimentation. It is particularly interesting to
note that in each district the intensity of residential use
is allowed to increase , thereby potentially increasing
nonpoint sources, when public sewage disposal is provided as
would be the case if one of the District’s proposals were
accepted. Thus, while point source pollution might be
reduced, nonpoint source pollution might be increased at an
accelerated pace by such a provision.
(2) Lack of Water Quality
Related Standards .
One of the most glaring omissions in the zoning dis-
trict scheme is the apparent lack of water quality-related
standards for the siting of developments. Only the accom-
modations district takes into account environmental con-
siderations specifically. Certain others attempt to account
for the nuisance-type effects of business, commercial, and
industrial uses. No district, however, expressly mentions
water quality as a siting standard or attempts to regulate
uses within such in accordance with water quality. impacts.
Certain techniques appear to be readily available.
Setbacks from lakeshores or watercourses would aid in
ameliorating water quality problems. This technique would
conform easily to the existing zoning scheme, which cur-
rently provides for setbacks. Standards would need to be
developed by the County planning office.
Institution of certain new zones or districts, a more
radical step, might also prove helpful. Section 30-28-111,
C.R.S. 1973, provides, inter alia , county authority to zone
for the location and use of buildings and structures for
trade, industry, residence, recreation, public activities,
and other purposes , and for use of land for trade, industry,
recreation, and other Rurposes . Section 30-28-115, C.R.S.
1973, permits zoning regulations to be adopted to reduce
excessive numbers of roads, and thereby runoff from the
same, and to secure safety from floodwaters and other dan-
gers . These provisions, liberally construed, provfa
auThority to enact new zoning schemes designed to regulate
for the maintenance of water quality. To regulate develop-
ment along watercourses, the floodplain authority might be
invoked. §30-28-ill, C.R.S. 1973.
If there is any doubt that the foregoing sections
permit land use regulation to enhance water quality, it is
resolved by the provisions of H.B. 1034, §29-20-101 et
seq., C.R.S. 1973. That statute permits regulation T land
use:
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1. In hazardous areas. §29-20-104(l)(h), C.R.S.
1973. Certain areas with high nonpoint source
pollution potential may be within this provision.
2. On the basis of the impact upon the land itself,
community, or surrounding area. §29-20-104(l)(g),
C.R.S. 1973.
H.B. 1034 also enables counties to otherwise plan for and
regulate land use so as to allow an orderly use of land and
to protect the environment. §28-20-104(l)(h), C.R.S. 1973.
The preceding authority would permit the County to
adopt floodplain zoning (there are existing restrictions,
§14.3 Grand County Zoning Regulations, but no floodplain
districts), water quality impact zones or water quality
influence zones (where nonpoint source pollution may be
particularly severe if land is developed), impact analysis
regulations, floating zones, or to simply strengthen its
regulatory scheme within existing zones in order to permit
planning for water quality impacts. Any actual regulations
devised would be more effective, of course, if each of the
sources listed in §I.B., supra , were regulated. It should
be noted that, while the regulatory schemes suggested above
relate to zoning, H.B. 1034 enables counties to regulate
other than by traditional zoning techniques. Some of these
techniques, including H.B. 1041, §24-65.1-101 et seq.,
C.R.S. 1973, regulation, are mentioned below. 1111., infra .
A final suggestion for regulating development would
center upon adoption of an agricultural district for the
County. Zoning regulations to foster the state’s agricul-
tural economy are expressly authorized. §30-28-115, C.R.S.
1973. Provision for such districts in rural counties with
growth impacts is common. See , for example, 1974 Rio Blanco
County Ordinances. The particular usefulness of such dis-
tricts is in reducing the intensity of land uses. This in
turn aids in reducing the intensity of nonpoint sources.
Since such a regulation is not directly addressed to non-
point or point source amelioration, it must not be consid-
ered to be a panacea for all water quality problems, but
rather only as a potential aid.
Finally, the fact that many uses in the above districts
are instituted only through special use permits has not been
ignored. The adequacy of such permits has been explored
below. §II.A.3.d., infra .
(3) Review of Zoning Map .
Certain weaknesses in the zoning scheme may well be
magnified by the county zoning map. Placement of certain
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zones, in light of the uses permitted as of right or by
special review therein, creates a potential for serious
nonpoint water pollution. The Forestry and Open District,
encompassing most of the private land in the three lakes
region, as described above, for example, permits a number of
uses which, without additional regulation, could present
nonpoint problems. For example, quarries, sewage disposal
areas, and/or mills might all contribute to sedimentation of
the lakes or worse. Despite this, the F district borders
portions of each of the lakes and extends to all private
land in the sensitive Kawuneeche Valley. Ins TE ution of
certain uses along a lakeshore or in a high-water table area
of the Valley could present enormous pollution problems and
be inherently antagonistic to achievement of water quality
goals.
The tourist district, in which are permitted gasoline
stations and other business and commercial uses with accom-
panying parking lots and other paved areas, is located
largely along the southwest shore of Grand Lake and in a
strip along the west shore of Shadow Mountain Reservoir. In
the absence of other controls, both of these areas present
considerable potential for nonpoint source pollution prob-
lems.
Residential development, as permitted in the resi-
dential district, can also create significant nonpoint
loads. Residential zoning surrounds roughly three-fourths
of the shore of Grand Lake and is located almost directly
adjacent to Shadow Mountain and Granby Reservoirs as well.
In the absence of added controls, a pollution hazard is
apparent in this proximity, especially in areas of intense
development.
d. Special Use Permits .
Section XI of the Grand County Zoning Regulations pro-
vides the special use permit review standards for those uses
listed in §2.b., supra , as permitted by special use only.
These requirements are in need of revision and strengthen-
ing.
The special review section requires that certain uses
which may present land use hazards if constructed within a
particular zone be reviewed and approved by the Board of
County Commissioners prior to implementation. Such a pro-
cedure presents the County with a good opportunity to review
various uses to determine what point and nonpoint source
water quality impacts a land use will have. Unfortunately,
no part of the special use section includes any direct ref-
erence to water quality impacts, and these do not appear to
be accounted for by the regulations.
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(1) Camping Areas .
Camping areas, specifically mentioned by the engi-
neering consultant as a nonpoint source, are a special use
in the A, F, T, and B districts. Review standards require a
central sewage system approved by the Colorado Department of
Health. No other environmental standards are found.
(2) Airports, Cemeteries, Water
Theattnent Plants, Landfills,
Sewage Disposal Sites .
These uses, allowed by special permit in the F zone,
are reviewed in accordance with no environmentally-related
standards.
(3) Lumber and Ore Mills, Mines,
Quarries Sand and Gravel
Operations .
While water quality is not mentioned specifically, a
rehabilitation plan is required prior to approval of these
uses, allowed by special permit in the F zone. Presumably,
this would take into account water quality concerns. No
water quality standards related to construction or operation
of the uses exist.
(4) Mobile Home Parks .
Allowed by special permit in the M and B districts,
certain review standards appear to contemplate environmental
hazards. Water quality impacts are accounted for by the
requirement that the park not produce soil erosion. No
review standards directly related to water quality impacts
exist.
(5) Unclassified Zone Uses .
The zoning regulations permit by right all uses in the
U district which are not otherwise prohibited by law.
Certain enumerated uses are by special review only. The
special review requirements require that an explanation of
materials to be used to minimize smoke, odors, noise, dust,
explosion hazards, and similar environmental concerns be
made. Arguably, impact upon water quality is such a con-
cern. No specific water quality restrictions exist.
(6) Mobile Homes .
Individual mobile homes are a special use in the F zone
when used by owner or operator of an agricultural use. The
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only water quality-related standard requires that adequate
sanitation facilities be available for the mobile home.
(7) Review Standards .
The Board of County Commissioners is vested with the
authority to decide on special use permit applications. The
regulation provides three review standards for that decision
in §11.2. They are:
1. The purpose of the zoning regulation;
2. The unique conditions of the surrounding neigh-
borhood;
3. The county-wide need for the use.
No standards directly related to water quality exist.
e. General Considerations Regarding
Special Use Permits .
(1) Absence of Water Quality-Related
Standards or Review Requirements .
While certain of the submission requirements and review
standards can indirectly be said to take into account the
point and nonpoinc source water pollution aspects of the
proposed uses, no express standards exist and, in the case
of certain uses, no indirect references appear. This diffi-
culty can be easily remedied by:
1. Adopting submission requirements with relation to
each special use which expressly regulate the
water quality aspects of a proposed use. Without
attempting to draft specific requirements, those
considered might include:
- -a requirement that all point and nonpoint
sources be eliminated or minimized;
- -a requirement that an erosion control plan be
submitted;
- -a requirement that a drainage plan be sub-
mitted;
- -a requirement that a sedimentation control
plan be submitted;
- -a requirement that a landscape or vegetation
plan be submitted;
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- -a requirement that sewage and other waste
disposal plan be submitted;
- -a requirement that no special permit be
granted until all other necessary water
quality permits have been obtained from the
local, state, or federal government.
2. Adopting certain review standards expressly
related to water quality impacts. Review stand-
ards which require the Board to determine that all
plans or specifications for minimized point and
nonpoint impacts are satisfactory would be advis-
able, as well as a general prohibition that the
proposed use shall not cause a direct or indirect
discharge of pollutants to any receiving water.
It should again be noted that zoning to promote improved
water quality appears to be well within the enabling legis-
lation for counties. § 30-28-lll, 115, C.R.S. 1973; §29-20-
104, C.R.S. 1973. As a result, regulations such as those
suggested above should be considered to be lawful.
(2) Expansion of Score of
Special Use Section .
There can be little doubt that institution of uses by
special review affords the County a greater regulatory power
over water quality impacts of uses than does establishment
of a use as of right. For this reason, it might be advis-
able for the County to expand the scope of its special
review section to include uses other than those currently
enumerated therein. For example, commercial feed yards, fur
farms, and riding stables are permitted as of right in all
districts. The impacts of such uses, and particularly of
feedlots, is recognized. See §208(b), FWPCA 1972; 40 C.F.R.
§fl24.11, 124.84, 125.4, 125.53. The County should consider
making such uses subject to special review in accordance
with the types of requirements and standards suggested in
the preceding section. Similarly, gasoline stations or
marinas which contribute grease and oil sources might also
be subject to special review, as well as other uses con-
tributing the types of nonpoint or point pollutants iden-
tified by the engineering consultant.
(3) Uses Which May Be
Hazardous Per Se .
Certain uses, even if established under strengthened
special review requirements might still present a hazard to
water quality. A review of the zoning map, as undertaken in
§II.A.3.c.(3), supra , indicates that certain uses permitted
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by special review in the F district might create water
quality hazards if located near the lake or a tributary
stream. If data are available to confirm this suspicion,
the County might be advised to severely restrict or prohibit
such uses in certain areas. This might be accomplished
through:
1. Zoning;
2. Floodplain regulations, whether part of zoning or
otherwise;
3. Shoreline regulations, whether part of zoning or
otherwise.
With respect to floodplain and shoreline regulations, H.B.
1041 might be of some assistance. See §24-65.1-101 et seq.,
C.R.S. 1973. Regulations under this statute will be is-
cussed more fully in §111., infra .
f. Floodplain R gulation .
Regulation of development within floodplains is most
often thought of as a means of protecting life and property
from flood hazards. Such regulation, however, may also have
an impact upon water quality to the extent it controls the
washing of polluting debris into a watercourse or impound-
ment during a flood period.
Counties are authorized to zone to regulate development
within floodplains. §30-28-111, C.R.S. 1973; see also §29-
20-104, 1973 C.R.S., and §24-65.1-101 et seq., C.R.S. 1973.
Grand County has adopted regulations dealing with develop-
ment of land within floodplain areas. §14.3, Grand County
Zoning Resolution. This section prohibits construction of
any buildings or structures within a floodplain unless
approved by the Board of County Commissioners, subject to
several conditions, including:
1. That all buildings or structures offer minimum
resistance to a flood and do not cause floodwaters
to increase the natural flood channel;
2. That no dwellings be permitted;
3. That certain public buildings be prohibited;
4. That there be no storage of materials which could
be moved by floodwaters within the channel.
The final condition above seems to come closest, to pro-
tecting water quality from nonpoint sources.
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Since floodplain regulations are not normally intended
for or the best suited of available techniques for regu-
lating water quality, no extended suggestions regarding such
will be offered in this section. Certain additions to the
Major Flood Channel section might be helpful to reduce
flood-created water quality hazards. These suggestions,
which center on the use of zoning as the regulatory tech-
nique, might include:
1. Prohibition of certain uses or structures which
might result in serious water pollution impacts as
a result of a flood. For example, open mines or
similar uses, roadways, or parking lots might
increase sedimentation resulting from flooding.
Certain forms of on-site disposal systems might be
sources of bacterial pollution.
2. Prohibition of certain land uses which might cause
flooding of lands outside the flood channel and
which might not fall within the terms “buildings”
or “structures,” see H20(2), (10), Grand County
Zoning Resolution, as are now prohibited by the
regulations.
3. If the term “major flood channel” does not include
both floodways and flood-prone areas (the term is
not defined in the zoning regulation), expansion
of the definition of the term to include such in
order to expand the protection afforded by the
regulation. Flood-influence areas, those areas in
which development may increase base flooding,
might also be regulated to expand the protection
afforded by the regulation. See §6-101 et seq .
Colorado Land Use Commission. Model Land tT e
Regulations; see also §24-65.1-101 et seq., C.R.S.
1973.
In general, it would he advisable for the County to
consider adoption of a separate regulation under §c29-20-l01
et seq . or 24-65.1-101, C.R•.S. 1973, to control floodplain
velopment, particularly from the viewpoint of reducing
flood-induced water pollution sources. Such regulations
will be discussed in more detail in subsequent sections of
this study. §111., infra .
g. Amendments to the Zoning Resolution .
The County zoning resolution may be amended. §17.1,
Grand County Zoning Resolution. The Board of County Corn-
missioners is responsible for deciding upon rezoning appli-
cations. No review or submission standards exist.
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A change in zoning can result in a change in the pollu-
tion potential of the area rezoned when, as is the usual
case, land is rezoned to a more intense use. Since the
enabling legislation provides no standards for rezonings,
the only standards by which such are to be judged are those
developed by court decisions and those expressed in the
local zoning resolution. Cases on the subject do not estab-
lish water quality-related standards for review of rezonings.
See , for example, Ho1 Development Co. v. Board , 140 Cob.
95, 342 P2d 1032 (1959); Garrett v. Littleton , 177 Cob.
167, 493 P.2d 370 (1970); CIark v. City of Boulder , 146
Cob. 526, 362 P.2d 160 (1961). As a result, it is all the
more important that certain standards be included within the
zoning resolution itself. Consideration should be given to
including the following within the amendment section of the
County’s resolution:
1. Requirements for the submission of data and plans
which would allow the County to evaluate fully the
water quality impacts of the proposed rezoning
from a point and nonpoint source perspective.
These standards could be general or specific in
cases where the rezoning is sought in conjunction
with a specific use.
2. Review requirements which require the Board to
consider point and nonpoint source water pollution
in the granting or denial of a rezoning.
A review of the County enabling legislation would indi-
cate that such requirements are lawful. § 30-28-l1l, 115,
C.R.S. 1973; §29-20-104, C.R.S. 1973. Similar approaches
have been utilized by rural counties in the state which face
growth problems. See , for example, 1974 Rio Blanco County
Ordinances and 1975 Morgan County Zoning Resolution.
h. Variances .
Section 16.2 of the Grand County Zoning Resolution
authorizes the Board of Adjustment to grant variances to the
lot size, lot width, and setback requirements of the resolu-
tion. The Board is expressly prohibited from granting a
variance which would allow a use not otherwise permissible
within a district. §16.2(2). Variances may be granted when
certain exceptional conditions of the building or land for
which the variance is sought would cause unnecessary hard-
ship if the zoning resolution were strictly applied. The
variance section contains no standards which would prohibit
any variance which created or enhanced any point or nonpoint
source of water pollution. The county enabling legislation
for variances, found at §30 .-28-l18(1l)(c), C.R.S. 1973,
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establishes two standards, one or possibly both of which
might prohibit any variance which caused such problems:
1. No variance may create substantial detriment to
the public good, i.e., health, safety, welfare,
morals, convenience, order, or prosperity. See
§30-28-115, C.R.S. 1973.
2. No variance may substantially impair the intent
and purpose of the zoning plan or resolution.
Since only “area variances” and not “use variances” are
permitted by the Grand County Resolution, the potential for
water quality degradation resulting from the grant of a
variance is diminished. The loosening of a setback restric-
tion, for example, will ordinarily result in a lesser degrada-
tion of water quality than allowance of an intense use in a
rural district. Since “area” variances can impact water
quality in certain cases, however, as for example when a
shoreline setback requirement is waived, standards should be
included in the ordinance. The following are suggestions:
1. Include in the variance section review and sub-
mission standards demonstrating to the Board of
Adjustment that no point or nonpoint source
impacts will result from the grant of a variance
and requiring a finding of such by the Board as a
condition of the variance. Such standards, like
those mentioned in previous sections, appear to be
entirely lawful. § 30-28-11l, 115, 117, C.R.S.
1973; §29-20-104, C.R.S. 1973.
2. Revise the Zoning Resolution to include a state-
ment of purposes which establishes as one of the
purposes of the ordinance the protection of the
quality of the three lakes and all other water
bodies or courses in the County. This would
trigger the aforementioned requirement of §30-28-
l17(1)(c), C.R.S. 1973, that no variance sub-
stantially impair the intent and purpose of the
resolution. It would also establish a clear and
explicit basis for the resolution which would aid
in its enforcement and would add support to the•
exercise of the numerous other powers described
and suggested in this section.
3. Subdivision Regulations .
a. Purpose and Scope .
The Grand County Subdivision Regulations are adopted
for the purposes expressed in §1-3 thereof. That section
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provides that the regulations are for the purpose of pro-
moting the health, safety, morals, and welfare of the
present and future inhabitants of the County. These are to
be achieved through the proper arrangement of streets,
adequate open spaces for traffic, utilities, fire-fighting,
civil defense, recreation, sites for schools and educational
facilities, light and air for avoiding congestion of popu-
lation, and for regulating other matters which the Planning
Commission and Board of County Commissioners deem necessary
in order to protect the best interests of the public. See
former §106-2-34, C.R.S. 1963.
To achieve these purposes, the County requires approval
of any subdivision or resubdivision of land prior to con-
struction. §1.5, Grand County Subdivision Regulations
(GCSR). Penalties for failure to comply with the regula-
tions are provided.
As in the case of the County’s zoning regulations, the
“purposes” section fails to state that the regulations are
adopted for, inter alia , the maintenance of water quality.
While such a purpose may be contemplated within the general
purpose provision, it would be to the advantage of the
County to adopt such a purpose expressly to insure that
water quality is a regulatory focus of the regulations and
to make action directed toward the preservation thereof more
easily defensible. There is little doubt that such a pur-
pose is contemplated by the current statutes which are
applicable to subdivision regulation. Foremost of these is
SB. 35, adopted in 1972, as codified in part at §30-28-133,
C.R.S. 1973. Standards and procedures authorized by that
act contemplate subdivision regulation as a means of regu-
lating point and nonpoint sources. See , for example, §30-
28-133(3), (4)(b). Other statutes equally applicable to
subdivision regulation also provide that authority. See
§29—20-104, C.R.S. 1973, §24-65.1-101 et seq., C.R.S. l 73.
A concern about the scope of the subdivision regula-
tions has been raised by the Grand County Attorney, Richard
Doucette. Mr. Doucette is concerned that, as written, the
subdivision regulations do not apply to hotels, motels, and
lodges. This would appear to be so. The definition of
subdivision at §1.6(4) of the regulations includes, with
certain exemptions, only land divided into two or more
parcels, separate interests, or interests in common. See
also former §30-28-101(10), C.R.S. 1973. This definition
would not normally apply to hotels, motels, and lodges
because these developments are generally of a unitary
nature. In view of the existing and potential use of the
subdivision regulations to regulate water quality impacts
(which may be severe for motels and the like due to the
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large parking areas they normally require), this omission is
serious, and should be rectified by an appropriate amendment
to the definitions section.
In 1974, the Colorado legislature amended the defini-
tion of subdivision to include not only land divided into
two or more parcels, separate interests, or interests in
common, but also to include any parcel of land to be used
for condominiums, apartments , or other multiple-dwelling
units . §30-28-lOl(lO)(a), C.R . 1973, as amended. rand
County may not adopt a regulation less restrictive than that
required by the state and hence must adopt the amended
definition. Once adopted, hotels, motels, and lodges, as
“other multiple dwelling units” would be encompassed by the
regulations. As a result, it would appear that the County
must regulate hotels, motels, and lodges by state mandate.
b. Exemptions .
Section l.6(4)(d), CCSR, authorizes the County Com-
missioners to exempt from the definition of subdivision,
§1.6(4), GCSR, by regulation or resolution, any division of
land if they determine such not to be within the purpose of
the regulations. No submission requirements or standards
for the review of exemption applications exist. As in the
case of the various regulations discussed above, this poten-
tial weakness of the subdivision regulations can be remedied
fairly simply by:
1. Inclusion of requirements for submission of data
and materials sufficient to demonstrate the waters
quality impacts of a proposed exemption.
2. Review standards requiring a finding by the Board
of County Commissioners that the proposed exemp-
tion will not result in point or nonpoint water
quality impacts if granted.
It would appear that the express wording of §30-28-101
(lO)(d), C.R.S. 1973, as bolstered by the provisions of
§S29-20-104, 24-65.1-101 et seq., and 30-28-133, C.R.S.
1973, make such regulations lawful. A similar approach, al-
though not primarily directed at water quality considera-
tions, has been taken by Rio Blanco County. See 1974 Rio
Blanco County Ordinances, §402.6.
c. Special Site Considerations .
In general, the special site considerations of the sub-
division regulations provide a good approach to the problem
of regulating development on the basis of impact upon the
land to be developed and the hazards presented to the
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development by the unique characteristics of the land.
§2.1, GCSR. The regulations take into account unique site
characteristics having to do with steep, unstable, and
swampy land, land subject to inadequate drainage, avalanche,
rock slides, geologic hazards, and flooding, as well as
special considerations dealing with proximity to railroad
rights-of-way. Unfortunately, no express provision of the
regulation accounts for impacts of development upon nonpoint
sources, particularly erosion and sedimentation, though such
can arguably be included within “geological hazards.”
In light of the fact that the development of subdi-
visions in certain areas, due perhaps to soil conditions,
slope, or proximity to watercourses on the lakes themselves,
can present more serious water quality hazards than in
others, it may be advisable to include such sites within
§2.1 of the regulations and to require submission of perti-
nent information therefor. The regulations should then go
one step further and establish express design standards to
minimize impact and review requirements which impose upon
the appropriate county body the duty to determine that no
degradation of water quality will be caused by the sub-
division. Such standards appear to be clearly authorized by
the enabling legislation. § 30-28-l33(3), (4), 29-20-104,
24-65.1-101 et , C.R.S. 1973.
The special site considerations contain restrictions
upon subdividing within a flood hazard area, which are gen-
erally good. §2.1(5). See , for example, the prohibition on
solid waste disposal within a flood channel. Similar pro-
visions appear within the County’s zoning resolution. In
order to insure comprehensive review of such problems at one
review stage, it might be advisable to regulate such con-
cerns within one regulation, which could be separate from
either the zoning or subdivision regulation and which would
regulate all land use and construction within a floodplain
area. See §24-65.l-20l(1)(b), C.R.S. 1973; see also §29-
20-104, C.R.S. 1973. Model Regulations promulgatedby the
Land Use Commission, as discussed in §111., infra , offer a
fairly comprehensive approach to flood hazard problems. See
§6-101 et seq., LUC Model Regulations.
One specific addition to the flood hazard section which
should be considered is found in the special design stand-
ards for apartments, etc., in §5.4(1) (a) (vi), GCSR. That
section expressly requires the location of individual sewage
systems to minimize contamination during flooding. There
appears to be no reason why the same provision should not be
adopted in the general design standard section.
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d. Dedications and Public
and Private Reservations .
The dedication requirements of §2.5, GCSR, require
dedication of streets and drainage and other utility ease-
ments and of 2O% of the total subdivision area for parks,
greenbelts, or flood channels. The location of such areas
is to be determined by the Planning Commission and sub-
divider, with recommendations from other public agencies.
Section 2.5 also establishes a requirement that reference be
made to the County’s Comprehensive Plan in order to locate
utilities. Two items regarding §2.5 are worth mentioning.
It may be that careful location of open areas dedicated
under §2.5 can aid in controlling water quality, partic-
ularly as related to nonpoint source problems arising from a
subdivision. Thus, open areas may be located to serve as
buffers between developments and watercourses or water
bodies. While §30-28-133(4), C.R.S. 1973, the section
authorizing dedications, does not expressly authorize the
use of dedications as buffer zones (it speaks only in terms
of school or park Sites), a dedication for a park which in
turn acts as a buffer zone would appear to be lawful.
Indeed, §30-28-133(4)(a)(III), C.R.S. 1973, authorizes
dedication of sites and land areas “. . . for the use and
benefit of the owners and future owners . . .“ in the sub-
division. Arguably, this may authorize dedications of land
for maintenance of water quality purposes alone.
Section 2.5, as noted, provides that public facility
locations be determined with reference to the County plan.
The plan has been discussed in §II.A., supra , where it was
noted that it established few, if any, water quality-related
standards for location of utilities or other public facilities.
Section 2.5 may provide additional reason for amending the
plan.
e. Design Standards for Drainage,
Sewer, and Water .
Section 2.6, GCSR, provides certain design standards
for storm drainage systems and sewer and water supply sys-
tems. See also §2.2(5), GCSR. Subsection (l)(a) prohibits
subdivisions in flood-prone areas or floodplains unless
flooding is alleviated. Subsection (a)(2) requires that on-
site sewage disposal comply with applicable county regula-
tions and that other sanitary sewers comply with the state
Board of Health regulations. Information provided to the
legal consultant at the November 1, 1976, meeting with the
Grand County Commissioners indicates that serious problems
exist with regard to these sections of the regulations.
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At the November 1, 1976, meeting, the legal consultant
was advised that the storm water runoff, after collection,
was discharged without treatment . While such a system may
help to control flo6ding or innundation of basements or
streets, it creates serious hazards to water quality in the
three lakes region. The heavy pollutant loads character-
istic of storm water runoff, including sediment, oil, and
other urban-related sources, will damage the water quality
of the lakes as well as tributary streams. Additional
development in the area will only serve to accentuate this
problem. The EPA has recognized that storm sewer discharges
represent a significant source of water pollution. As a
result, it has applied its NPDES program to include pub-
licly-owned storm sewers in urban areas and certain rural
areas in which storm sewers are designated as significant
contributors of pollution. 40 C.F.R. 125.52. In other
rural areas, they will be regulated as nonpoint sources.
Id.; see 41 F.R. 11303, Mar. 18, 1976 . No part of the three
Takes region is considered an urban area or been so desig-
nated. The burden of regulation therefore falls upon local
governments. In such an instance, the Grand County regula-
tions are inadequate and would be increasingly so if growth
were increased by construction of the Three Lakes system.
It should be noted that it does not appear that con-
struction of the District’s proposed facilities would remedy
this storm sewer problem. The District’s Master Plan
recommends a system for sanitary sewage collection treatment
and disposal only. Three Lakes Master Plan, p. 55. This is
consistent with the District’s organic legislation. See
§32-10-101 et seq., C.R.S. 1973. Interestingly, desptE its
recognition of storm water runoff as a potentially serious
water quality hazard, we have been informed that it is the
EPA’s policy not to provide grants for combined sanitary and
storm sewer systems.
As a result of the foregoing, it would seem extremely
important that the County adopt desigr standards and require-
ments appropriate and sufficient to prevent the disposal of
harmful storm water runoff after its collection. These
could include requirements for contatnment of runoff in
settling ponds and for graduated disposal thereof to prevent
serious overloading of natural waterc curses during runoff
periods. Such treatment, when combined with proper drainage
and erosion control regulations, wilL aid in reducing the
introduction of storm water-related pollutants into the
lakes. Unfortunately, they will not eliminate those sources
as efficiently as would proper storm water treatment. The
best technique for eliminating such sources, if possible,
would be collection and treatment prLor to disposal.
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f. Design Standards for
Mineral Resource Areas .
The County subdivision regulations provide certain
design standards for mineral resource areas. §2.8, GCSR.
Without resolving the question of whether such are proper
and authorized within subdivision regulations, see §30-28-
101(10), C.R.S. 1973, it should be noted that such contain
no standards concerning water quality. In light of the fact
that certain mineral exploration operations are permitted in
the F zone, which borders portions of each of the lakes,
this is a serious omission. Assuming such regulations are
lawful within the subdivision regulations, they should be
strengthened by the addition of review requirements and
submission requirements pertaining to water quality impacts
of mineral exploration.
g. Surface Improvements .
The surface improvement section, §3.1, GCSR, of the
subdivision regulations provides certain rnonumenting,
paving, curb and sidewalk standards, and minor landscaping
standards. There are several deficiencies in these stand-
ards, which are described below.
The Street paving requirements of §3.1(2), GCSR,
require paving of streets serving development densities of
greater than two lots per acre. No other Street paving
requirements exist in the regulations. See also §2.2, GCSR.
While such a regulation may be sufficient from the stand-
point of intensity of use, it may neglect certain nonpoint
pollution concerns. Thus, if paving streets will diminish
pollution potential from storm runoff, it may be profitable
for the County to require such in its subdivision regula-
tions. If paving would enhance pollutional loads, it should
not be required. Submission requirements and review stand-
ards allowing those determinations would be necessary. It
would appear that such requirements are authorized. § 30-
28-133(3), (4), (6)(c); 29-20-104; 24-65.1-101 et seq.,
C.R.S. 1973. It should be noted that adoption T such a
scheme might require adoption of corresponding regulations
to regulate development density encouraged by paving or to
regulate density in accordance with the capacity of unpaved
streets.
Section 3.1(5) provides certain landscaping require-
ments. It is feasible to expand this section to require
that a subdivider submit a landscaping plan for the review
of approving authorities. Such a plan could be aimed at
minimizing runoff-related nonpoint sources of water pollu-
tion such as sedimentation. Thus, replanting of areas
denuded during construction and requirements for maintenance
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of natural vegetation and related requirements are suggested
as likely design standards. In addition, if development
along lakeshores is to be allowed, a restriction against
cutting of shoreline trees or other shading vegetation could
be required to reduce the potential for the thermal pollu-
tion identified by the engineering consultant. See §I.B.,
supra . Such requirements appear to be within the scope of
§30-28-133(3)(b), C.R.S. 1973, as well as §29-20-104, C.R.S.
1973.
h. Utilities .
Section 3.2, GCSR, establishes certain requirements for
public sewer and water provisions. In subdivisions of
greater density than one lot per acre, public water supply
is mandated, while public sewage disposal and treatmenc are
required where density exceeds one lot per two acres. The
regulations contain no standards to assure that such systems
will not result in growth inducement. Combined with the
County Zoning Regulations, which permit densities of as
great as 1/6th acre where public water and sewers are avail-
able, see §II.A.3.b. , supra , this may result in a compounding
of development-associated problems which the Three Lakes
District’s system may create. For example, even if the
District were to initially construct a: limited disposal and
treatment system, the requirements of §3.2 might encourage
its rapid growth or the construction of other systems to the
extent possible within the Three Lakes District’s juris-
diction. In the absence of other needed controls, the
result might be rapid aggravation of nonpoint sources. As a
result, the impact of this requirement, in the absence of
density or other requirements ameliorating nonpoint impacts,
should be considered.
i. Procedural and Submission
Requirements .
Before any subdivision may be approved by the Board of
County Commissioners, it must be reviewed by the Planning
Commission and the Board, as well as certain other state and
local agencies. §4.1 et seq., GCSR. Their decisions are
based upon the informaETon which the subdivider is required
to submit at the various stages of review. Id. There are
three such stages: the sketch plan, the preliminary plat,
and final plat. No subdivision may be constructed nor lots
be sold therein until final plat approval has been obtained.
§1.8, GCSR. A review of the submission and review require-
ments disc1o es certain weaknesses related to the review and
control of point and, particularly, nonpoint sources of
pollution.
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As a eneral statement, the submission requirements of
the subdivision regulations should require all necessary
information to determine whether design requirements of the
regulations are met. This information should then be judged
in accordance with specified review requirements. When the
diminution of water quality from point or nonpoint sources
is a primary concern and may result from development, the
submission and review requirements should reflect such by
expressly examining water quality impacts. Unfortunately,
Grand County’s regulations do not appear to account fully
for such impacts.
While the submission requirements of the subdivision
regulations, particularly at the preliminary plat stage, do
require certain information regarding flooding and sewage
disposal, see § 4.2(2)(g), (h), (1), (p), (v), and (w),
GCSR, they do not appear to require detailed information on
nonpoint source impacts or methods minimizing such. Neither
do they require information on the growth-inducing aspects
of the provision of sewer or water facilities. For example,
using the findings of the engineering consultant as a guide,
the following types of requirements might be useful:
1. Information regarding the sedimentation loads
created by construction of subdivisions and
resulting urbanization.
2. Information regarding other types of pollutants
created by urbanization, such as oil and grease
from automobiles.
3. Measures proposed to reduce erosion.
4. Measures to reduce sedimentation, oil, grease, or
other pollutants.
5. Landscaping measures, including open space buffers.
6. Information regarding the storm water drainage
system proposed for the subdivision.
7. Other information to determine water quality
impacts of a proposed subdivision.
8. Proof that state and federal water quality permits
have been obtained.
This list is not intended to be exclusive. Specific point
or nonpoint problems may require other information. Though
each of the above categories may not be necessary at each
review stage, they should be accounted for at least at one
stage, probably the preliminary plat stage. Once again, it
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would appear that such requirements are authorized by § 30-
28-133(3), (4), (5), and (6); 29-20-104; 24-65.1-101 et
seq., C.R.S. 1973.
The review requirements of the subdivision regulations
would also benefit from the addition of water quality-
related review standards. At present, the regulations
establish certain procedures for the review of subdivision
plats, but contain no standards to govern the required
review. It would be helpful to establish such standards,
and to include therein standards requiring a determination
by each reviewing body that the subdivision will not increase
point or nonpoint sources of pollution in the lakes. The
standards would reflect the content of the submission
requirements, suggestions for which appear above. Such
standards appear to be authorized by § 30-28-l33(3), (4),
(5), and (6); 29-2C-104; and 24-65.1-101 et seq., C.R.S.
1973.
A final suggestion regarding review requirements
relates to the distribution requirements of §30-28-136,
C.R.S. 1973, as adopted by §4.2(3), GCSR. Those sections
mandate referral of the preliminary plat to certain state
and local agencies. The Water Quality Control Commission is
not one of those enumerated. If the Water Quality Control
Commission would consent to review preliminary plats, it
might be helpful to add that agency to §4.2(3). While the
WQCC is not an agency enumerated by §30-28-136, C.R.S. 1973,
this section does not appear to preclude additional review.
j. Design Standards and Review
Procedures for Apartment Houses,
Condominiums, and Townhouses .
Article V of the subdivision regulations establishes
the above-titled special design and procedural requirements.
In general, the requirements established by this section
parallel those in the generally-applicable sections already
discussed, with the exception of certain requirements
directly applicable to the special types of development. As
a result, most of the same comments apply equally, and these
special design requirements will not be given special atten-
tion herein.
k. Variances.
Section 8.1, GCSR, provides for variances from the sub-
division regulations under the following conditions:
1. When, due to usual site conditions, strict erifcrce-
ment would result it unnecessary hardship to the
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subdivider. Such a variance must not impair the
purposes of the regulati n or be a detriment to
the public good. Conditions may be appended to
the grant of a variance. §8.1(1), GCSR.
2. In the case of a plan for an entire neighborhood,
community, town, or PUD having a development and
building program when, in the judgment of the
Planning Commission, the plan provides for ade-
quate open space, traffic, circulation, and ser-
vice needs when the subdivision is developed.
§8.1(2), GCSR.
Certain conditions precedent to the grant of a variance are
stated. Id.
Assuming that variances or modifications of the sub-
division regulations are lawful - - the enabling legislation
does not provide for them - - the County should consider
revising the variance section to include:
1. Requirements for the submission of information by
the applicant sufficient to demonstrate that the
requested variance will neither create nor enhance
point or nonpoint source water pollution.
2. Review standards requiring the County Coinmis-
sioners or Planning Commission to find that the
variance will not diminish water quality.
At present, no such standards or requirements exist, though
they are arguably encompassed by the requirement of §8.1(1)
that no variance be a detriment to the public good.
1. Amendments .
Amendments to the subdivision regulations may be made
without consideration of water quality impacts. Considera-
tions similar to those recited with regard to variances
should be added to the amendment section.
m. General Considerations .
(1) Regulation of Ongoing
Developments .
The Grand County Subdivision Regulations regulate
development in order to minimize certain problems and
hazards in completed subdivisions. While this is a valid
and traditional goal of subdivision regulations, it omits
regulation of the serious nonpoint problems associated with
the construction phase of ongoing development. Construc-
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tion-related sources are identified by the engineering
consultant as a major source of nonpoint water pollution.
§I.B., supra . As a result, regulations aimed at controlling
such impacts must be adopted. It may be possible to insert
such regulations into the subdivision regulations or to
develop separate regulations applicable to subdivisions and
other forms of development. At a minimum, these should
include:
1. Erosion control regulations.
2. Sedimentation control regulations.
3. Grading regulations.
4. Regulations governing disturbance of vegetation.
5. Regulations requiring containment of pollutant
sources.
Failure to adopt such regulations would frustrate any
attempt to strengthen the subdivision regulations since the
latter would continue to exempt ongoing development from
regulation.
(2) Encouragement of Intensive and
Sprawling _ Land Use Patterns .
While perhaps not having as pronounced an effect on
land use patterns as the zoning regulations, the subdivision
regulations also appear to contemplate and encourage tradi-
tional lot and block land use patterns and thus encourage an
intensive and sprawling pattern of land use. This approach
is reflected most clearly in the “Streets, Alleys, and
Easements” section, §2.2, of the regulations and in the lack
of development density or improvement location requirements
in the regulations. Taken in conjunction with the minimum
lot sizes established by the zoning regulations, it would
appear that a sprawling form of development is contemplated.
This will result, of course, in an enhancement of nonpoint
sources beyond those which might be contributed in other
forms of development, which utilize more flexible density
requirements and which may regulate location within certain
zones.
(3) Absence of Water Quality-
Related Standards .
The absence of submission requirements and review
standards within the regulations has been outlined above,
and there is no need to repeat them here. As a general
comment, however, it can be noted that the absence of these
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creates a serious weakness in the regulations which must be
remedied. In short, one purpose of the regulations should
be the protection and enhancement of water quality.
5. Individual Sewage Disposal Regulations .
The Grand County Board of Health, pursuant to §25-10-
101 et seq., C.R.S. 1973, has adopted rules and regulations
governing the construction, installation, and cleaning of
individual sewage disposal systems. Their purpose is to
preserve the environment, protect the public health, elimi -.
nate and control causes of disease and infection, and to
reduce and control the pollution of air, land, and water.
Art. I, §1, Grand County Individual Sewage Disposal Regula-
tions (ISDR). To accomplish these purposes, the regulations
prescribe minimum standards for the construction, location,
operation, and maintenance of such systems, which cover the
various types of individual systems, Art. III, ISDR, and
require that any person wishing to install such a system
obtain a permit. Art. IV, ISDR. Standards for the licensing
of system installers and cleaners are also provided.
Art. V, ISDR.
A review of the County’s regulations reveals that they
conform closely to the guidelines, rules, and regulations of
the Colorado Department of Health and are therefore generally
adequate to control the water quality impacts resulting from
the installation of individual disposal systems in the three
lakes region. These provisions are or could be enhanced by
exIsting and suggested provisions of the zoning and sub-
division regulations. See §II.A.3., 4., supra .
6. Planned Unit Development Regulations .
Grand County has adopted a Planned Unit Development
Regulation (PUD regulation) permitting “planned unit develop-
ment” as a special use within a zoning district. Several
sections of the regulation appear to require strengthening
with regard to water quality concerns.
Applying the concepts discussed with relation to zoning
and subdivision is somewhat more difficult with relation to
PUD’s. Zoning and subdivision are forms of regulation
applicable to most types of developments, including PUD’s,
each of which should have as one basic focus the protection
of the natural environment. PUD regulations are intended to
provide a flexible alternative to traditional land use
regulation by permitting innovative and unique developmental
designs. They do not provide generally applicable standards
governing all development. As a result, PhD regulations are
not generally thought of as having the purpose of protecting
the environment. They should, however, have that result , or
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the advantages of the PtJD style could be sacrificed. With
this objective in mind, the Grand County PUD Regulation was
reviewed.
a. General Provisions .
The PUD regulation establishes several general pro-
visions for PUD’s. These include the purposes of the regu-
lation, a requirement of consistency with the Master Plan,
the PUD regulation’s relationship to the subdivision regu-
lations, the general intent of PUD approval, phasing, and
staging of PUD construction and definitions. Art. I, §1-
VIII. In none of the general considerations is it indicated
that it is the purpose or intent of the PUD regulation to
require and encourage development which will have no detri-
mental effect upon water quality or other natural features.
It would seem that such should at least constitute a purpose
of any PUD. The innovative designs allowed by the regula-
tion cannot be comprehended to permit degradation of water
quality.
The PUD general provisions, by stating that any PUD
must be consistent with the County Comprehensive Plan, as
required by §24-67-l04(1)(f), C.R.S. 1973, provide another
reason for revising the plan to encompass goals and objec-
tives relating to the preservation of water quality.
b. Procedures and
Submission Requirements .
Article II of the PUD regulation provides procedures
and submission requirements to be met by the County and
a developer of any PUD. Certain additions or changes
thereto can be suggested.
(1) Submission and
Review Requirements .
While perhaps more comprehensive and effective than the
submission and review requirements of the subdivision regu-
lations for protecting water quality, the PUD requirements
need strengthening. PUD submission requirements are found
at each stage of PUD review, the preapplication conference,
the schematic plan stage, and the final plan stage. At
various points in these stages, information as to solid
waste disposal, sewage, groundwater, landscaping, effects of
runoff, and soil quality is required. See Art. II, § II.A.7,
II.B.5, II.C.3, III.B.15, IV.C.l.(g). rfdetailedinforma-
tion is required under these sections, the impacts of such
important nonpoint sources as sedimentation, erosion, and
other construction-related sources can be determined.
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Unfortunately, the ordinance provides extremely weak stand-
ards, if any, by which to review the required information.
No review standards for information submitted at the
preapplication conference or the schematic stage exist. At
the final plat stage the following apply:
1. The final plan must substantially comply with the
schematic plan.
2. The final plan must comply with all other stand-
ards for review not considered at the schematic
stage.
These review standards should be amended to require at each
review stage findings by the approving bodies that the
proposed PUD will contribute no erosion, sedimentation, or
other point and nonpoint sources to the lakes or tributaries
thereto. In addition, more specific review standards
relating to the information required by the submission
requirements could be added. For example, a finding that
any landscaping or vegetation plan aid in preserving or
enhancing water, quality by diminishing nonpoint sources may
be included. Requirements such as these will assure that
the information to be gained from good submission require-
ments will be fully reviewed with regard to each PUD. Such
standards are clearly within the contemplation of the
enabling legislation. See §24-67-105(1), C.R.S. 1973.
(2) Referral Requirements .
In addition to the referral requirements of the sub-
division regulations, which would appear to apply to a PUD
subdivision, see §V.D., PUDR, the PUD regulations require
referral of the schematic plat to at least seven other state
and federal agencies, including the Colorado Water Pollution
Control Commission. This list is a good one which should
serve as a model for the County’s subdivision regulations.
(3) PUD As Special Review Use .
PUD’s are special review uses in each zoning district.
Application for such a permit must be made at the schematic
stage. §IV.D., PUDR. Standards for the review of an
application for such a permit, including those related to
water quality concerns, should be included within the zoning
regulations, as described in §II.A.3.d., supra .
c. Minor Modifications and Amendments .
The PUD regulations permit minor modifications in the
height, size, and location of buildings, if required by
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engineering or other circumstances not foreseen at the time
of final PUD plan approval, so long as the modification
violates no standard or regulation established by the zoning
and subdivision regulations. §IX.A., PUDR. The regulations
also authorize amendment of the final PUD plan to include
uses not authorized in the plan but allowable within the
zoning district in which the PUD is to be located. §IX.B.,
PUDR. No water quality or other standards exist to deter-
mine whether such “minor” modifications could create hazards
to public health or safety. This could result in major
hazards to water quality, particularly where building size
or location or types of use are changed without further
review. This potential weakness should be remedied by:
1. Establishing standards defining what constitutes a
“minor modification” under §IX.A. For example,
the regulation might provide that changes of some
small percentage of building size, height, or
location are minor and not subject to review.
Other changes would need to be reviewed by normal
PUD review procedures. Such standards are typical
in most PUD regulations. See State Model PUD
Regulation, Colorado Department of Local Affairs.
2. Establishing certain review standards and sub-
mission requirements which would prohibit even
“minor modifications” if such would result in a
degradation of the lakes’ water quality.
3. Establishing certain review standards and sub-
mission requirements for amendments to PUD uses
requiring the prohibition of those which could
result in diminution of the lakes’ water quality.
It should be noted that any such amendments would
seem to violate the special use provisions of the
zoning regulations. A PUD must be approved as a
special review use and, when it is, the uses
allowable within the PUD are approved. To allow
later the addition of other uses without resort to
special review procedures constitutes an amendment
of the special use permit in absence of estab-
lished special review procedures. See §XI, GCZR.
This would be particularly true if the PUD amend-
ment section were read to allow those uses subject
to special review in a zoning district to be added
to the PUD uses without notice and a hearing
before the County Commissioners in accordance with
special review requirements. See Art. III, §1,
PUDR.
It should also be noted that minor modifications and
amendments are not expressly authorized by the enabling
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legislation. §24-67-101 et seq . , C.R.S. 1973. If such a
procedure is to be employ , it should be subject to strict
limits such as those suggested above.
d. Specific Uses and Requirements .
(1) Common Open Space .
Article III, §11-A, of the PUD regulation requires that
a minimum of 25° of total PUD area constitute common open
space. Use of open space as a buffer to protect against
nonpoint sources has been discussed above. See §II.A.4.d.,
supra . The same concepts would apply here. There appears
to be no restriction in the PUD enabling legislation which
would prohibit location of open spaces to aid in achieving
water quality goals so long as the welfare of the residents
of the PUD will be served. See §24-67-101, C.R.S. 1973.
e. General Considerations
Regarding PhD Regulation .
(1) Regulation of Ongoing
Development .
Like the County Subdivision Regulations, see §II.A.4.
e.(1), supra , the PUD regulations regulate PUD’s only from
the perspective of ameliorating.hazards, including water
quality hazards, which might result from development of a
PUD. They do not attempt to regulate the serious nonpoint
sources which may arise during the construction phase. Such
sources should be controlled either under the subdivision
regulations which are generally applicable to PUD’s in Grand
County, see Art. II, §V.D.; see also §24-67-107(4), C.R.S.
1973, the PhD regulation itself, or independent regulations
applicable to all County development. Reference should be
made to §II.A.4., supra , regarding suggested types of regu-
lations needed to control such sources. The validity of
such regulations would seem clear under § 30-28-l33, 29-20-
104, 24-67-101 et seq., C.R.S. 1973.
(2) Absence of Review Standards .
The absence of water quality-related review standards,
and of review standards generally, in the PUD regulation is
a serious weakness discussed above. Since this potential
problem has been discussed, it will not be repeated here
except to note that the absence of such standards may result
in serious problems in the implementation of the regulation.
Review standards at each stage of PUD review should be
added.
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7. Building Codes .
Grand County has adopted the Uniform Building Code,
1973 (UBC), of the International Conference of Building
Officials. Though building codes traditionally, and func-
tionally, have been designed to regulate the manner of
construction of buildings and structures only, leaving other
regulatory devices to concern themselves with necessary
changes in the land itself, the UBC does contain certain
provisions which relate to land alteration, and which there-
fore affect nonpoint source regulation. A liberal reading
of the building code enabling legislation probably justifies
the inclusion of such provisions in the building code. §30-
28-201, 203, C.R.S. 1973; see also §29-20—104, C.R.S. 1973.
These provisions have, therefore, been reviewed.
Grand County has also adopted the Uniform Mechanical
Code, 1973, the Uniform Code for the Abatement of Dangerous
Buildings, 1973, and the Uniform Fire Code, 1973. These
contain no provisions relevant to this study.
a. Detailed Regulations - - Excavations,
Foundations, and Retaining Walls .
Chapter 29 of the UBC contains certain excavation and
fill regulations. These regulations prohibit unsafe excava-
tions and fills, establish standards for the slope of
excavations, and restrict certain excavations due to soil
instability. § 29O3, 2904, UBC. While such regulations may
have water quality implications, for example in preventing
erosion, it is clear that their focus is upon building
safety rather than water quality. No water quality consid-
erations appear in Chapter 29. While it may be that the
enabling legislation cited above would permit such to be
included, it would seem that such considerations more prop-
erly belong within the subdivision ordinance or an inde-
pendent grading or erosion control ordinance. Such are
proposed in §111., infra .
b. Excavation and Grading .
Chapter 70 of the UBC contains certain excavation and
grading requirements. The chapter requires that no person
shall do any grading, with certain exceptions, unless a
permit is first obtained therefor. §7003, UBC. A permit
may be obtained only if the building official approves
certain plans, specifications, soil reports, and geological
reports. §7004, UBC. The code also contains certain stand-
ards regarding each of the following:
1. Cuts. §7009, UBC.
2. Fills. §7010.
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3. Setbacks of cut and fill slopes. Id., §7001.
4. Draining and Terracing. Id., §701T
5. Erosion Control. Id., §70T3.
6. Grading Inspection. Id. , §7014.
7. Work Completion. Id., §7015.
If the County intends these regulations to serve as its
primary grading regulations, certain additions would need to
be made since it is clear that the thrust of the regulations
is the protection of building safety rather than water
quality. Thus, though the existing regulations could aid in
maintaining water quality by helping to minimize erosion-
and sedimentation-related sources, in their current form the
regulations contain no standards expressly related to the
maintenance of such. Submission requirements and review
standards pertaining to alleviation of nonpoint sources
resulting from grading would need to be added to strengthen
the code. Also, regulations concerning minimization of the
water quality impacts of ongoing grading would need to be
included, the regulations now directed to achieving a
properly graded area as an end result only.
If the County intends the existing grading regulations
to serve as a means of assuring that all grading results in
areas upon which buildings can be safely constructed, then
grading regulations controlling the water quality impacts of
that activity must be adopted. These could be a part of
subdivision regulations or independent regulations. In view
of the traditional function of building codes, it would seem
wise to include such regulations in a format other than the
building code.
c. Board of Appeals .
Section 30-28-106, C.R.S. 1973, of the County enabling
legislation authorizes the County to create a board of
review which may be vested with each of the following powers:
1. Subject to appropriate principles, rules, stand-
ards, conditions, and safeguards, to grant special
exceptions to the code in harmony with its purpose
and intent.
2. To suggest amendments to the code.
3. To adopt substantive rules and regulations based
on the provisions of the building code.
The County, by virtue of its adoption of the UBC, has
appointed a Board of Appeals, also known as a Board of
Review. §204, UBC; Grand County Res. No. 1974-6-10. The
code authorizes the Board to determine the suitability of
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alternate materials and methods of construction and to
provide for reasonable interpretations of the code. §204,
UBC. Arguably, this authorization is broad enough to permit
the Board of Appeals to perform items No. 1 and 3 at the
minimum. (Section 30-28-206(2) appears to authorize counties
to grant all or any part of the above powers to the Board of
Review. Mere creation thereof does not appear to vest it
automatically with all powers listed in that section.)
Neither the UBC nor Resolution No. 1974-6-10 appears to
establish standards for the grant of special exceptions or
the adoption of substantive rules. In particular, no water
quality-related standards exist. If it is the intent of
Grand County that its building code Board of Review may
grant variances and make substantive rules, the following
additions to the building code are advisable:
1. Inclusion of submission requirements and review
standards to govern the grant of special excep-
tions to the code. These should include stand-
ards, conditions, rules, principles, and safe-
guards which assure that no special exception will
create any added water quality hazard to the
lakes.
2. Drafting of substantive rules and regulations
based upon the building code which will assure
that the code is interpreted, to the extent pos-
sible, consistent with the preservation of the
lakes’ water quality. For example, in addition to
any other grading regulations which might be
adopted by the County, the excavation requirements
of Chapter 70 could be supplemented by rules to
assure that no grading and excavation will create
point or nonpoint source water quality impacts.
Such additions to the code would appear to be authorized by
§30-28-201 et seq., C.R.S. 1973, itself, as well as by other
enabling 1e Tslation. §29-20-104, C.R.S. 1973. Such an
approach would also assure that grading, excavation, grants
of special exceptions, and other activities under the code
would be consistent with water quality goals while leaving
primary regulation of land-disturbing activities to regula-
tions more suitable to their control.
8. Potential New Regulations for
Regulation of Development Activities
Creating Water Quality Impacts .
The preceding sections regarding the various Grand
County “land use’ regulations have attempted to define
potential water quality-related weaknesses in the existing
County ordinances and to offer suggestions for their improve-
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ment. Certain Water quality impacts of land development
might better be regulated through the adoption of new regu-
lations or the substantial amendment of existing ones. It
is the purpose of this section to identify new regulations
which should be considered for adoption by the County.
Since these regulations may apply equally to other entities
under study herein, particularly the Town of Grand Lake,
they will be described in detail in a subsequent segment o .
this report. See §111., infra . Perceived authority for
such regulation will also be identified therein. Finally,
conceptual model regulations will be proposed for certain of
the identified regulations in that section.
By proposing the numerous regulations described in this
section, it is not intended to imply that the County must
adopt each one in order to protect the water quality of the
lakes. Rather, these are suggested as examples of potential
regulatory devices, certain of which may accomplish similar
goals.
Finally, each of the suggested regulations is iden-
tified as an independent regulatory mechanism. As noted
above, certain of them might more appropriately be included
as amendments to existing regulations. The County should
read the proposed regulations in that context. By combining
regulations to the greatest extent possible, the burden of
permit review upon the County and applicant is reduced.
a. Regulations Suggested for Adoption .
(1) Regulation on the Basis of Water Quality Impact.
(a) Impact Analysis Regulations.
(b) Impact Zoning.
(2) Floating Zone.
(3) Erosion Control Regulations.
(4) Grading Regulations.
(5) Drainage Regulations.
(6) 11.8. 1041 Regulations pertaining to:
(a) Site selection and construction of major new
domestic water and sewage treatment systems
and major extensions of existing domestic
water and sewage treatment systems;
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(b) Site selection and development of solid waste
disposal sites;
(c) Site selection and development of new com-
munities;
(d) Mineral resource areas;
(e) Natural hazard areas;
(f) Historical, natural, and archaeological
resource areas of statewide importance.
Shoreline Protection Regulations.
Campground and Recreation Area Regulations.
Litter Control Regulations.
Regulation of Existing Development ( see §c.,
infra) :
(a) Building Permit Regulations.
(b) Nonconforming Use Regulation.
(c) Nuisance Regulation.
(d) H.B. 1041 Regulation.
(e) H.B. 1034 Regulation.
b. Regulations Which Might Be
Considered for Further Study .
(1) Development Timing Regulations.
(2) Utility Extension Regulations.
(3) Acquisition of Land or Land Uses to Preserve Open
Spaces.
(4) Transferable Development Rights.
B. Town of Grand Lake .
Because of its location on the shoreline of Grand Lake,
development in the Town of Grand Lake could pose a signifi-
cant hazard to the water quality of the lakes, and particu-
larly Grand Lake. Since the Town is within the boundaries
of the District, implementation of the planned collection
and treatment system could result in increased growth rates
(7)
(8)
(9)
(10)
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within the Town or within areas currently part of Grand
County which the Town might annex in the future. A review
of the land use regulations of the Town must therefore be
included in this study. In addition, because existing urban
development in the Town already contributes nonpoint sources
of water pollution, methods of controlling such sources take
on an added importance.
The Town of Grand Lake has not adopted as comprehensive
a regulatory scheme as has Grand County. Its only land use-
related ordinances are the following:
1. Zoning Ordinance (includes PUD’s).
2. Building Code.
3. Nuisance Ordinance.
We have been informed by the office of the Town Clerk
that the Town has not adopted the following common types of
plans and ordinances:
1. Master Plan.
2. Subdivision Ordinance.
3. Individual Sewage Disposal System Ordinance.
The results of the review of the existing ordinances
are outlined below.
1. Conclusion .
Certain existing local regulations need improvement in
varying degrees to protect water quality from potential
nonpoint sources. Also, there is a serious need for certain
new regulations which do not currently exist.
2. Zoning Ordinance .
a. Purpose and Scope .
The zoning resolution recites as its purposes all those
matters enumerated in §31-23-303, C.R.S. 1973; §5, Grand
Lake Zoning Ordinance (GLZO). To accomplish those purposes,
the ordinance prohibits uses of buildings or land which are
inconsistent with its requirements. §7.B., GLZO.
Though the zoning ordinance adopts each of the purposes
expressly established by the zoning enabling legislation for
municipalities, the purpose section should be expanded to
include as a purpose the prevention of pollution of the
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lakes by point and nonpoint sources. Such a purpose is
within the contemplation of current enabling legislation.
§ 3l-23-30l, 302, 303; 29-20-401; 24-65.1-101 et seq.,
C.R.S. 1973. Inclusion of such as a purpose w lcFbe of
particular value in justifying zoning actions taken to
protect or enhance the water quality of the lakes.
b. Zoning Districts .
Section 7 of the zoning ordinance lists thirteen zoning
districts. Eight of these are of a residential nature, two
are commercial, two industrial, and one is open.
(1) Open District .
Certain agricultural (excluding feedlots or animal sale
barns), residential, and public and quasi-public facility
and building uses are permitted as of right in the 0 dis-
trict. §8.A., GLZO. By conditional use permit, hospitals,
sanitaria, certain public utilities and facilities, and
parking lots are allowed. §8.B. 1-6, GLZO. The ordinance
provides certain standards for review of those conditional
uses, the applicability of which is unclear. Those stand-
ards may apply either to parking lots only or to each con-
ditional use listed above. The confusion li s in the fact
that the standards are codified under the parking lot use
only , that being the last enumerated conditional use, as
§8.B.6.a., b., GLZO. That format would indicate that they
are meant to apply on1 7 to parking lots. Logic, however,
would dictate that their application is equally necessary
for the review of all the conditional uses listed. The
terms of the ordinance would also indicate such. For
example, water reservoirs and similar uses are conditional
in each zoning district. If the conditional use standards
of the ordinance were interpreted to apply only to the last
enumerated conditional use, as could be argued on the face
of the ordinance, reservoirs and similar uses would be
subject to those standards in eleven zones, but not in two,
simply because in those two, those uses are not the last
ones enumerated. See §S8.B., 20.B. There is no justifica-
tion for such inconsistent treatment of those uses. It
should be noted that the Town Attorney for Grand Lake has
informally opined that the standards are intended to apply
to all conditional uses.
Regardless of what may be the scope of their applic-
ability, the conditional use standards require the sub-
mission of certain information by the applicant. An appli-
cation for a conditional use must be accompanied by devel-
opment plans showing the proposed use of the property and
its relationship to adjacent properties. The plan must also
identify:
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1. Existing contours at two-foot intervals.
2. Location of improvements on the site.
3. Height and bulk of proposed structures.
4. Placement and description of screening and screen
planting.
5. Availability of utilities.
6. Time sequence of development.
7. Environmental impacts on properties in the immed-
iate vicinity.
The Planning Commission may require additional conditions
regarding use intensity, appearance, hours of operation,
setbacks, open spaces, or other conditions.
Airports are also allowed by conditional use. Review
of an application is subject only to the condition that the
facility does not endanger the immediate area and meets all
state, local, and federal regulations. §8.B.7.., GLZO.
The final activities allowed by conditional use are
rock crushing, concrete and asphalt manufacture, sand and
gravel and other excavation or surface mining. §8.B.8.,
GLZO. Detailed requirements relating to site planning, dust
control, and site restoration are provided.
Minimum lot size is one acre for dwellings, one-half
acre for other permitted uses, and one acre for conditional
uses. Setbacks are provided.
(2) Residential Districts .
There are seven residential districts included in the
zoning ordinance permitting various single- and multiple-
family uses. §9-15, GLZO. Lot sizes in those districts
range from one acre to approximately one-sixth of an acre
(7,000 sq. ft.). Home occupations, keeping of domestic
animals (although kennels are disallowed) and farm animals
(on a parcel of land of at least one acre), fences, and
accessory buildings are also permitted uses. By conditional
use, certain public utilities and public buildings, reser-
voirs, water storage tanks and pumping stations, and sewer
lift stations are allowed, subject to the same review
requirements as those uses listed in §8.B. 1-6, GLZO. A
similar question arises with relation to each residential
district, namely, whether these review standards apply to
all or only the last of the enumerated conditional uses,
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these being reservoirs and similar uses. Lot sizes for
conditional uses are the same as for permitted uses unless
the Planning Commission specifies otherwise. Setback
requirements are provided.
Upon approval of a development plan, minimum lot size,
yard, and width requirements may be waived to accommodate a
PUD approach incorporating a variety of housing types, but
not a variety of uses. In no case may density exceed one
unit per acre, however, on a minimum developed area of five
acres. The density approach must be approved by the Plan-
ning Commission and Board of Trustees.
(3) obile Home District .
Mobile homes designed for single-family occupancy, home
occupations, and the keeping of domestic animals, but not
kennels, fences, and accessory buildings, are allowed as of
right in the mobile home district. §16.A. , GLZO. The same
conditional uses are allowed as those authorized in the
residential districts, subject to the same scope of review
(again with the question of whether the review standards are
applicable to all or only the last enumerated conditional
uses, see §16.B. 1-3, GLZO). Minimum lot area is 5,000
square et for all uses. Setback requirements are estab-
lished.
The mobile home zone is a floating zone, created by an
application for rezoning. §16.E., GLZO. Such an applica-
tion for rezoning must be accompanied by a detailed site
desIgn which includes drainage and sewage disposal informa-
tion. No mobile home zone of under five acres may be
approved. §16.D.2.c., GLZO.
(4) Commercial Districts .
There are two commercial districts - - the commercial
transitional and commercial district. The commercial tran-
sitional district permits certain “light” commercial uses,
such as offices, medical clinics, pharmacies, barber shops,
nonprofit clubs, day-care centers, community service agen-
cies, and parking lots. §17.A., GLZO. Similar businesses
no more. offensive or detrimental to welfare than those
listed as permitted uses, certain public facilities and
buildings, reservoirs, water storage tanks and pumping
stations, and sewer lift stations are permitted by condi-
tional use permits. §17.13., GLZO. The commercial district
permits all uses enumerated in the commercial transitional
district, all retail and service businesses, wholesaling if
storage space does not exceed 1,500 square feet, fabrication
incidental to retail sales, mortuaries, and accessory build-
ings. The provisions for conditional uses are identical to
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the commercial transitional district and the question of the
scope of the applicability of the review standards arises in
relation to both districts. See §17.B. 1-3, 18.B. 1-3,
GLZO. No setback or lot size requirements, with the excep-
tion of a minimum front yard requirement of 25 feet for uses
having fuel pumps, exist in either zone, though each limits
building height to 28 feet.
(5) Industrial Districts .
A light industrial and general industrial zone are
included in the Grand Lake Zoning Ordinance. The IL dis
trict permits all uses allowed in the C district, with the
exception of residential uses, as well as manufacturing
operations, builder supply yards, storage of oil, gasoline,
or petroleum, and accessory buildings. §19.A., GLZO. The
manufacturing uses must be operated within a structure which
is at least partially enclosed, and all dust, fumes, odors,
refuse matter, smoke, vapor, noise, light, and vibration
must be confined to the IL district. §l9.A.2., GLZO.
Parking and travel areas must also be dust free. Id. In
the general or IC district, certain research and manufac-
turing uses, industrial or manufacturing uses, and accessory
buildings are allowed by right. §20.A., GLZO. The indus—
trial and manufacturing uses may be carried on within or
without a building enclosure so long as unusual amounts of
dust, fumes, odors, smoke, vapor, noise, lights, and vibra-
tion are confined to the IG district and outdoor storage
areas are concealed from view. §20 .A. 2. a., b., GLZO.
Conditional use provisions identical to the residential and
commercial districts are included, with the addition of
enclosed junkyards in the IC district. §19.B., 20.B., GLZO.
Again, the applicability of the review standards is uncer-
tain. No minimum lot size or setback requirements except
those which the Planning Commission may set are established.
Building height may not exceed 28 feet. §l9.C., 20.0.,
GLZO.
All permitted and conditional uses in both the IC and
IL districts are sub]ect to comprehensive performance stand-
ards. These standards prohibit any industrial uses causing
“water pollution or offensive noise, vibration, dust, odors,
heat, glare, or other objectionable influences beyond the
property in which the use is located.” §19.E., 20.E., GLZO.
No use may create a public nuisance or hazard. Id. With
regard to water pollution effects, potential hazards must be
minimized by the installation of safeguards acceptable to
the building inspector, the Colorado Health Department, the
local health department, and in compliance with federal
laws. §19.E.7., 20.E.7., GLZO. Percolation and groundwater
tests may be required prior to operation of facilities. Id.
Outdoor storage must be carried out in a manner which will
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prevent stored materials from carriage by natural forces and
in a manner complying with state and federal laws. §19.E.6.,
20.E.6., GLZO. Landscaping, buffer, and setback require-
ments may be designated by the Planning Commission. §19.F.,
20.F., GLZO.
c. General Considerations
Re: Zoning Districts .
(1) Potential for Sprawlin g
Land Use .
A minimum lot size of at least one acre is established
in the open, residential, and mobile home zones -- nine of
the thirteen existing zones. This is reduced from 2,000 to
5,000 square feet in certain residential zones and the
mobile home zone, respectively. No minimum lot sizes are
established in the commercial or industrial sections.
Within those zones, uses ranging from single- to multiple-
family housing are permitted as of right, including mobile
home housing. As a general rule, regulations of the sort
which are described above lead to an intensive lot and block
pattern of development since the regulations define the
intended characteristics of a development by lot rather than
by establishing density requirements for the development as
a whole. This kind of land use, which is readily facili-
tated by construction of a centralized sewage system,
creates an intense, urbanized environment which, in the
absence of other controls, will contribute urban- and con-
struction-related sources to a more significant degree than
other less intense forms of land use.
It is possible, under the existing ordinance, to avoid
intense lot and block development to some degree. Each of
the residential districts contains a “density” provision
which preserves the one-dwelling-unit-per-acre standard
while allowing for a waiver of the lot size and setback
requirements of the district. This permits clustering of
development and the provision of open areas as opposed to
intense lot and block development. Open areas and careful
design to reduce the amount of roads or other paved areas
could serve to minimize nonpoint impacts in particular. In
addition, open areas might be selectively placed to provide
open space buffer zones. There are, however, problems with
this approach.
1. The ordinance in no way encourages developers to
operate under the density requirements. Since
approval of a design under the density provision
is not automatic, while establishment of lot and
block development is a use by right, this may
discourage developers from using the former
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method. Alternatively, the potential market
advantages of an innovative design may encourage
its use despite the added review requirements.
2. The density provision may be unlawful. The pro-
vision states that it is “. . . specifically
designed to accommodate a Planned Unit Development
approach . . .“ PUD’s are authorized by §24-67-
104, C.R.S. 1973. That section and other sections
of the “Planned Unit Development Act of 1972,”
§24-67-101 et seq . , C.R.S. 1973, establish spe-
cific standards for PUD ordinances, most of which
are not met by the “density” provision. The
provision may therefore be unlawful. Since the
zoning ordinance was adopted in February, 1974,
the provision fails to benefit from the grand-
father clause of that act. §24-67-107(2), C.R.S.
1973. Adoption of an actual PUD resolution may be
necessary.
3. Even if lawful, the section might require certain
additions. Approval of any PIJD should be preceded
by submission of all information necessary to show
that no point or nonpoint sources of water pollu-
tion will result from the development. Review
standards for the PUD application should require
such a finding. Neither of those requirements is
specifically spelled out in the section, and these
additions should be made.
(2) Lack of Water Quality-Related
Siting Standards .
Only in the mobile home and industrial districts are
the permitted uses subject to any review to determine water
quality impacts of the permitted uses. §16.E., 19.E.,
20.E., GLZO. This is an omission which should be corrected
by the institution of one or more changes in the ordinance.
Reference should be made to §II.A.3.c.(2), supra , for the
kinds of additions which might prove useful to regulation of
water quality impacts of development. A review of municipal
enabling legislation indicates that the kinds of regulations
suggested therein for county adoption would be permissible
fur municipalities as well. Sections 31-23-.301(1), 31-23-
302, 31-23-303, 29-20-104, and 24-65.1-101 et seq . , C.R.S.
1973, all appear to provide authority thereT r. The value
of any particular suggestion must be measured by the spe-
cific characteristics of the Town of Grand Lake.
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(3) Conditional Use Standards .
(a) Submission and
Review Standards .
Specific conditional use standards are found in rela-
tion to the conditional uses in each zone. Generally
applicable conditional use standards, found in §22.B.,
are discussed in §II.B.2.d.(2), infra .
Submission requirements and standards for the review of
conditional uses are necessary for implementation of a
conditional use scheme. The applicability of the specific
conditional use standards of the zoning ordinance is uncer-
tain. This uncertainty should be eliminated by clearly
expanding the review requirements to include all conditional
uses enumerated in each district.
In addition to expanding the review standards to
include all uses, the standards themselves should be strength-
ened to assure closer review of water quality impacts.
Submission requirements covering the following should be
cons idered:
1. A requirement that all point and nonpoint sources
be eliminated or minimized.
2. A requirement that an erosion control plan be
submitted.
3. A requirement that a drainage plan be submitted.
4. A requirement that a sedimentation control plan be
submitted.
5. A requirement that a landscape or vegetation plan
be submitted.
6. A requirement that evidence of compliance with all
state and federal water pollution laws be pro-
vided.
In addition to submission requirements, specific review
standards for the decision on a conditional use application
which requires a finding that the proposed use will create
no point or nonpoint sources of water pollution should be
added to the ordinance.
The consultant is aware that the specific conditional
use requirement in theabove-discussed sections currently
requires that an applicant submit a statement of environ-
mental impact on properties in the immediate vicinity of the
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proposed use. Because the impact of nonpoint water pollu-
tion sources has traditionally been ignored in land use
decisions, and because the requirement is limited to prop-
erties in the immediate area and may not include impacts
upon the lake, it would appear that the specific standards
proposed above would be more effective.
The foregoing discussion related to the conditional use
review requirements found in each of the zoning district
sections. In §8.B.8, GLZO, rock crushers, concrete and
asphalt plants, sand and gravel pits, and other excavations
and surface mining are allowed by conditional use permit.
Unique review standards are provided for these uses. While
these standards are generally good, requiring, for example,
site reclamation, they too should include specific pro-
visions to ameliorate point and nonpoint sources from such
operations. Examples would include requirements for pro-
tecting vegetation, containing sediment, containing water
produced in the operations, erosion control plans, and
similar provisions. The same should apply to the condi-
tional review requirements applicable to airports, which are
now extremely sparce. §8.B.7., GLZO.
(b) Expansion of Scope
of Conditional Use .
In certain instances expansion of the conditional use
provisions to include certain potentially hazardous uses
might be considered. Parking areas, for example, are per-
mitted as of right as expressly enumerated or as accessory
uses in the commercial and multi-family residential dis-
tricts. Gasoline stations or marinas are likewise permitted
as of right within the C district. Storage areas for cer-
tain C or CT uses may also be permitted as of right. Each
of these uses possesses significant nonpoint water pollution
potential. As a result, these uses and any which may have
similar pollution potential should be considered for in-
clusion as conditional uses within zones in which they are
necessary. See §8.B.6., GLZO, for example, which already
includes parking areas as conditional uses. Expansion of
the conditional use concept will afford Grand Lake a better
mechanism for preventing water quality impacts of certain
hazardous uses.
(c) Uses Hazardous Per Se .
Certain uses, even if established under strengthened
special review requirements, might still present a hazard to
water quality. A review of tT e zoning regulations indicates
that certain uses permitted by special review in the 0 dis-
trict, such as commercial parking lots, airports, sand and
gravel operations, and surface mining, particularly might
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create water quality hazards if located near a lake or a
tributary stream. If data is available to confirm this
suspicion, the County might be advised to severely restrict
or prohibit such uses in certain areas. This might be
accomplished through:
1. Zoning;
2. Floodplain regulations, whether part of zoning or
otherwise;
3. Shoreline regulations, whether part of zoning or
otherwise.
With respect to floodplain and shoreline regulations, H.B.
1041 might be of some assistance. See §24-65.1-101 et seq.,
C.R.S. 1973. Regulations under this statute will be dis-
cussed more fully in §111. , infra .
(d) Authority .
Conditional use regulation based upon water quality
impacts would appear to be permitted by several sections of
the municipal enabling legislation, which recognizes the
validity of controlling land use based upon the environ-
mental impacts thereof. § 31-23-301, 302, 303; 29-20-104;
24-65.1-101 et seq . , C.R.S. 1973.
(4) Mobile Home Floating Zone .
The mobile home district is not delineated on the
zoning map and may be created by petition for amendment.
§16.E., GLZO. An applicant must submit certain information
to obtain the zone change. The floating zone is an excellent
concept for location of the mobile home zone, which should
be retained. Certain additions can be suggested:
1. Addition of specific submission requirements which
would request detailed information regarding land-
scaping, erosion control, sedimentation control,
and waste disposal information. In addition, the
drainage information already requested by §16.E.6.,
GLZO, should be made more specific. Sewage dis-
posal information is also included in §16.E.l0.,
15. , GLZO. Evidence that all state and federal
water pollution control permits have been obtained
should be added.
2. Addition of review standards which would prohibit
approval of the zoning change if point or nonpoint
sources are not ameliorated.
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(5) Industrial District
Performance Standards .
Both the light and general industrial district regula-.
tions contain performance standards which are applicable to
permitted and conditional uses within the districts. The
requirements are quite comprehensive generally and require
information regarding matters specifically related to water
quality as well. Only a few recommendations need be offered:
(a) Water Pollution
References .
The performance standards prohibit the emission of
water pollution from any manufacturing or other processing
in the IL or IC districts and require proper safeguards
where hazards may exist. §19.E.7., 20.E.7., GLZO. Revision
of this section to include the following should be con-
sidered:
1. The term “water pollution” should be clarified to
expressly include point and nonpoint sources.
2. In connection with No. i, specific requirements
relating to water quality hazards pertaining to
erosion, sedimentation, runoff from storage or
work areas, waste disposal, and sewage disposal
should be included.
3. Sections 19.E.7. and 20.E.7., GLZO, should be
expanded to prohibit pollution from all uses in
the IG and IL zones rather than from manufacturing
and other forms of processing only, as is now the
case. Even such “light” uses as lumber yards or
gasoline storage, §19.A., GLZO, can create serious
hazards to water quality. Such expansion would
also conform §S19.E.7. and 20.E.7., GLZO, to the
general provisions of l9.E. and 20.E., GLZO, which
prohibit water pollution from all industrial or
commercial uses.
(b) General Standard .
As mentioned in (i), supra , a general provision pro-
hibits all water pollution which might be caused by any use
in the IL or IG districts. § l9.E., 20.E., GLZO. This also
prohibits all such uses from creating offensive noise,
vibration, heat, smoke, dust, glare, or other objectionable
uses beyond the boundaries of the property in which the uses
are located in a manner which will create a public nuisance
or hazard. Presumably, such offensive influences which do
not extend beyond the property in a way which creates a
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public nuisance would be permitted if all other requirements
were met. This section should be clarified to prevent all
such objectionable influences whether creating a public
nuisance or not. That term is imprecise, generally requires
judicial definition, and may not encompass harmful water
quality impacts which may not constitute “nuisances” as a
matter of law.
(c) Outdoor Storage and
Waste Disposal .
Sections 19.E.6. and 20.E.6. provide standards for
outdoor storage and waste disposal. These are generally
good, containing such requirements, for example, as a pro-
hibition against storing materials in a fashion which would
permit carriage by floodwaters. Minor additions, including
the following, may be recommended:
1. Specific standards regarding the water quality
impacts of waste disposal should be included.
These might include requirements that storage be
accomplished in a fashion which will not create
nonpoint sources in particular. For example, care
to assure that leakage of stored oil or gas does
not occur might be important. As currently
drafted, the storage regulations seek to avoid
hazards such as explosion only, rather than to
prevent the degradation of water quality.
2. Specific standards regarding regulation of on-site
waste disposal a IL or IC uses should be included.
(d) Uses by Ri t
[ n IG District .
An industrial or manufacturing use in the IG district
is subject to a prohibition against emission of unusual
amounts of dust, fumes, odors, smoke, vapor, noise, 1ig hts,
and vibration beyond the boundaries of the IG district.
This prohibition is in addition to the general standard
discussed in §(ii), supra , which prohibits any such emana-
tions To control water quality better and to conform to the
general standard, that section should be amended to delete
the term “unusual amounts” and the qualifying statement
“shall be confined within the IG district.” Certain per-
mitted uses in the IL district are subject to a similar
standard and similar changes should be made.
(e) Application to Com-
mercial and Other 1Jses .
The performance standards in the IL and IC districts
apply to each use enumerated therein. In the IL district,
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this means that those standards apply to the C district
uses, which are swept into the IL district, see §19.A.l.,
GLZO, when implemented in the IL district. Interestingly,
those same standards do not apply to those commercial uses
when locatea in a C district itself. Because many C district
uses (such as gasoline stations) could create storage, waste
disposal, sedimentation, and other nonpoint-related sources,
it would seem logical to expand the standards to certain
permitted and conditional C district uses at least. Indeed,
development of performance standards suited to each district
is an alternative for controlling water quality impacts of
development. See also the Mobile Home Floating Zone Dis-
trict, §16, GLZO. Such would be no more than a form of
impact zoning, expressly authorized under §29-20-104, C.R.S.
1973, and implied within other statutes as well. At a
minimum, the standards should be imposed on C district uses.
Their applicability thereto has already been recognized.
(6) Authority .
It would appear that the comprehensive suggestions made
with regard to the industrial performance standards are
justified and authorized by § 3l-23-30l, 302, 303; 29-20-
104, and 24 -65.1-101 et seq., C.R.S. 1973.
d. Supplementary Regulations .
The zoning ordinance contains a number of so-called
“Supplementary Regulations” at §22. Certain of these may be
used to reduce water quality impacts of development.
(1) Off-Street Parking
and Unloading Regulations .
Requirements for off-street parking and unloading in
each district are specified in §22.A., GLZO. Parking areas
can create serious runoff and sedimentation-related sources
of pollution. Despite this, no standards for regulation of
such are provided in §22.A. Inclusion of drainage require-
ments in that section, or perhaps by independent section or
ordinance, should be made. Section 29-20-104, C.R.S. 1973,
as well as other sections of the enabling legislation, would
seem to authorize such requirements.
(2) Conditional Use Regulations .
Section 22.B., GLZO, contains general standards applic-
able to all conditional uses in each district. Such uses
may be allowed only if, in addition to meeting the specific
requirements enumerated for each zone, they meet the follow-
ing:
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1. The use does not create any water pollution and
does not create offensive noise, dust, vibration,
smoke, odors, heat, glare, snow storage problems,
environmental problems, or other objectionable
uses beyond the boundaries of the property on
which the use is located.
2. The use conforms to other considerations deemed
necessary by the Planning Commission to protect
the health, safety, welfare, and morals of the
area in which the use is located.
The Planning Commission may request information demon-
strating methods to be used to minimize smoke, odors, dust,
heat, and similar environmental and snow storage problems.
Except for the specific requirements of §8.B.8., GLZO,
dealing with rock crushers and similar conditional uses in
the open district, these requirements are more detailed than
the generally applicable requirements. See , for example,
§8.B.6. , GLZO. Inclusion of these standards in both sec-
tions may be redundant. The following is recommended:
1. Strengthening the conditional review requirements
as detailed in §II .B.2.c.3., supra , in order to
increase control over water quality impacts of
conditional uses.
2. Including those requirements either as parts of
the applicable District requirements or the sup-
plementary regulations, but not both.
e. Variances .
Variances to the terms of the zoning ordinance are
permitted under §24.C.2., GLZO. Standards for the grant
thereof appear in §24.C.4., GLZO. Neither the ordinance nor
the municipal enabling legislation contains any proscrip-
tions against the grant of a variance which might diminish
water quality in the lakes. See §31-23-307(4), C.R.S. 1973.
Such a proscription does seem authorized by that section,
however, which generally requires that variances conform to
the spirit of the ordinance, a purpose of which should be to
enhance water quality, see §II.B.2.a., supra , and secure
public safety and welfare. Id. Other sections of the
enabling legislation add support to this conclusion. See
§ 3l-23-301, 302, 303; 29-20-104, C.R.S. 1973. The follow-
ing should therefore be considered for inclusion in the
variance section of the ordinance:
1. Include in the variance section review and sub-
mission standards demonstrating to the Board of
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Adjustment that no point or nonpoint source
impacts will result from the grant of a variance
and requiring a finding of such by the Planning
Commission or Trustees as a condition of the
variance.
2. Revise the Zoning Resolution to include a state-
ment of purposes which establishes as one of the
purposes of the ordinance the protection of the
quality of the three lakes and all other water
bodies or courses in the County. This would
trigger the aforementioned requirement of §31-23-
307(4), C.R.S. 1973, that no variance substan-
tially impair the intent and purpose of the
resolution, it would also establish a clear and
explicit basis for the resolution which would aid
in its enforcement, and add support to exercise of
the numerous other powers described and suggested
in this section.
It might be noted that the Grand Lake Zoning Ordinance
permits only area , not use , variances. Despite this, the
consultant has concludea that such variances, if inadvisedly
granted, can create water quality impacts. See §II.A.3.h ,
supra . The above considerations are therefore recommended.
f. Amendments .
Amendments to the zoning regulations and map may be had
under §26, GLZO. That section establishes review require-
ments, submission requirements, and review procedures for
the amendment of the zoning map and regulations. While
generally quite good, these sections should be strengthened
in certain respects.
At present, a rezoning may be permitted under the
zoning ordinance if the original zoning was erroneous, area
conditions have changed, and/or the rezoning is necessary to
provide land for a community—related use riot originally
anticipated. §26.A., GLZO. The ordinance contains no
specific provision which would prohibit a rezoning when such
might allow a use which would degrade the water quality of
the lakes. Since neither the municipal enabling legislation,
§31-23-305, C.R.S. 1973, nor cases discussing rezonings,
see , for example, Holly Development, Inc . v. Board , 140
Cob. 95, 342 P.2d 1032 (1959); Garrett v. Littleton , 177
Cob. 167, 493 P.2d 370 (1970); Clark v. Boulder , 146 Cob.
526, 362 P.2d 106 (1961), expressly requires sii ih a finding,
it becomes all the more important to include such a pro-
vision. Naturally, any such requirement should clearly
apply to both point and rionpoint sources. It would appear
that such a requirement would be authorized under § 3l-23-
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301, 302, 303; 29-20-104; and 24-65.1-101 et seq., C.R.S.
1973, and the above-cited cases. — ___
In order to permit the Town to determine the impacts of
a rezoning, an applicant therefor must submit certain
information under §26.D., GLZO. This includes site plans,
proposed method of water supply and sewage disposal, a
survey, and snow storage and removal plans. In addition, in
the RN, RNH, HN, CP, C, IL, and IG districts, other more
detailed site and sewage information is required. There are
two problems with the submission requirements:
1. The requirements appear to apply only when a
change in the zoning map , as opposed to the zoning
regulations, is sought. §26.D., GLZO; see also
§26.B., GLZO. If this is so, the regulations
should be amended so that the requirements apply
with respect to both kinds of amendments. Amend-
ments to the regulations can have serious water
quality impacts, as can amendments to the maps.
2. The requirements ask for no data or plans relating
to nonpoint source impacts of a proposed amend-
ment. The same sort of requirements as suggested
in §II.B.2.c.(3), supra , regarding conditional
uses should be adopted.
These requirements are also authorized by the enabling
legislation.
2. Building Codes .
The Town of Grand Lake has adopted the Uniform Building
Code (UBC), 1970, Uniform Electric Code, and the Colorado
Technical Plumbing Code. Only the building code pertains to
this study.
a. Authority .
Unlike counties, which have the benefit of fairly
comprehensive building code enabling legislation, munici-
palities must exercise their building code authority in
accordance with rather dated and unspecific building pro-
visions. §31-15-601 et seq., C.R.S. 1973. Indeed, in 1975,
the legislature eliminated the specific provision auth-
orizing the hiring of building inspectors. See former §31-
15-301.(l)(a), C.R.S. 1973. That office can now be filled
only in accordance with the general municipal authority to
hire necessary officials. §31-15-20l(l)(b), C.R.S. 1973.
Despite this, it would appear that the older legislation, as
bolstered by more recent municipal land use enabling legis-
lation, permits the adoption of the UBC and the inclusion of
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necessary water quality-related standards within its code.
See §S31-15-601; 31-15-.401(l)(a), (b); 29-20-104; and 2 -
65.1-101 et seq., C.R.S. 1973. We will assume, therefore,
that use T the UBC and water quality-related standards
within the building code is authorized.
b. Specific Provisions: Chapters 29
and 70, UB 1970 .
Chapter 29 of the UBC, 1970, specifies certain excava-
tion and foundation requirements. Chapter 70 contain
excavation and grading requirements. These requirements are
the same as those in Chapters 29 and 70 of the UBC, 1973,
discussed in §II.A.6., supra , in relation to Grand County.
Reference to that section is advised at this time.
c. Sp ecific Provisions:
Board of Appeals .
Section 204, UBC, 1970, provides for a Board of Appeals
to:
1. Determine the suitability of alternate materials
and methods of construction, and
2. Provide for reasonable interpretations of the
Code.
Suggestions for strengthening these provisions are provided
in §II.A.6., supra . The above-described enabling legis-
lation should authorize any such additions.
3, Nuisance Regulations .
Municipalities are authorized to declare and abate
nuisances. §31-15-401(1)(c), C.R.S. 1973. The Town of
Grand Lake has adopted a nuisance regulation which regulates
a number of acts which may result in point or nonpoint
sources of water pollution, and indeed has specifically
declared the pollution of water a public nuisance. §10-3-6,
Grand Lake Nuisance Ordinance (GLNO).
Nuisance regulation differs in one very fundamental
respect from the land use regulations described in the fore-
going sections. The latter regulations seek to plan for and
prevent water quality impacts before they occur. Nuisance
regulations, on the other hand, would be useful to regulate
water quality impacts of land use after tl ey occur. Nuisance
regulations may, therefore, prove to be an effective tool
for controlling and eliminating point and nonpoint sources
of water pollution from existing development or from ongoing
development. Neither Grand Lake nor any other entity under
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study herein has adopted such regulations. Since a section
on nuisance regulation is included in §111., infra , the
Grand Lake ordinance will be discussed there rather than in
this section. The emphasis in that section will be to view
nuisance as a method of controlling water quality impacts
from existing development and land uses.
4 Potential New Regulations for
Control of Development Activities
Creating Water Quality Impacts .
The preceding sections regarding the various Grand Lake
“land use’ regulations have attempted to define potential
water quality-related weaknesses in the Town’s existing
ordinances and to offer suggestions for their improvement.
Certain water quality impacts of land development might
better be regulated through the adoption of new ordinances
or the substantial amendment of existing ones. It is the
purpose of this section to identify new regulations which
should be considered for adoption by the Town. Since these
same regulations may apply equally to other entities under
study herein, particularly Grand County, they will be
described in a subsequent segment of this report. See
§111., infra . Perceived authority for such regulations will
also be identified therein. Finally, conceptual model
regulations will be proposed for certain of the identified
regulations in that section.
By proposing the numerous ordinances described in this
section, it is not intended to imply that the Town must
adopt each one in order to protect the water quality of the
lakes. Rather, these are suggested as examples of potential
regulatory devices, certain of which may accomplish similar
goals. If it desires to adopt any of these suggested regu-
lations, the Town, in conjunction with state and federal
water quality and land use planning agencies, would be the
proper body to determine which one or ones are the best
suited to accomplish its water quality goals.
Finally, each of the suggested regulations is iden-
tified as an independent regulatory mechanism. As noted
above, certain of them might more appropriately be included
as amendments to existing regulations. The County should
read the proposed regulations in that context. By combining
regulations to the greatest extent possible, the burden of
permit review upon the Town and applicant is reduced.
a. Ordinances Suggested for Adoption .
(1) Master Plan.
(2) Regulation on the Basis of Water Quality Impact.
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(a) Impact Analysis Regulation.
(b) Impact Zoning.
(3) Floating Zones.
(4) Subdivision Regulations.
(5) PUD Regulations.
(6) Individual Sewage Disposal Regulations.
(7) Erosion Control Regulations.
(8) Grading Regulations.
(9) Drainage Regulations.
(10) H.B. 1041 Regulations pertaining to:
(a) Site selection and construction of major new
domestic water and sewage treatment systems
and major extensions of existing domestic
water and sewage treatment systems.
(b) Site selection and development of solid waste
disposal sites.
(c) Site selection and development of new com-
munities.
(d) Mineral resource areas.
(e) Natural hazard areas.
(f) Historical, natural, and archaeological
resource areas of statewide importance.
(11) Shoreline Protection Regulations.
(12) Campground and Recreational Area Regulations.
(13) Litter Control Regulations.
(14) Regulation of Existing Development:
(a) Building Permit Regulation.
(b) Nonconforming Use Regulation.
(c) Nuisance Regulation.
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(d) H.B. 1041 Regulation.
(e) H.B. 1034 Regulation.
b. Regulations Which Might Be
Considered for Further Study .
(1) Development Timing Regulations.
(2) Utility Extension Regulations.
(3) Acquisition of Land or Land Uses to Preserve Open
Spaces.
(4) Transferable Development Rights.
C. Three Lakes Planning Commission .
The Three Lakes Planning Commission was formed by the
Grand County Commissioners on March 4, 1974. Grand County
Res. No. 1974-3-6. A district planning commission, it is
authorized to exercise those powers specified by §30-28-119,
C.R.S. 1973, within its jurisdiction. The resolution
granted the Commission jurisdiction over the drainage of the
three lakes and required the Commission to certify a copy of
zoning plans, including a resolution and maps, to the County
Commissioners by March 1, 1975. Unfortunately, as of the
date of this study, the Commission has not prepared any such
plans or any other materials which might be reviewed by the
consultant. As in the case of each of the entities having
no regulations at this time, however, authority of the
Commission to adopt regulations for the control of develop-
ment-induced point and nonpoint sources will be discussed
and regulations suggested for possible adoption.
I. Authority of Commission .
The Three Lakes Planning Commission is authorized to
exercise all authority granted to district planning com-
missions by the enabling legislation. Res. No. 1974-3-6.
Section 30-28-119, C.R.S. 1973, contains those powers and
authorizes district planning commissions to exercise all
powers and to be subject to all duties imposed upon county
planning commissions insofar as such relate to zonin ,
including the creating of zoning plans. §30-28-119(3)(b),
C.R.S. 1973. The commissions may also act as boards of
adjustment until a board of county-wide jurisdiction is
formed. §30-28-119(4), C.R.S. 1973. The exercise of such
powers is, of course, limited to the geographical juris-
diction of the commission.
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It is quite clear from the enabling legislation and
Resolution No. 1974-3-6 that the Three Lakes Planning Com-
mission has only certain limited zoning powers, i.e., the
power to create zoning plans and the authority to act as an
interim board of adjustment. Despite this, the Three Lakes
Planning Commission could perform a useful function by
developing a zoning resolution and map suitable to control
the somewhat unique land use and water quality problems
within the three lakes region. These regulations, if
adopted and enforced by the County Commissioners, would
supersede less stringent County standards which would other-
wise be applicable in the District. §30-28-119(4), C.R.S.
1973. Such regulations would also permit the County to
regulate the unique problems of the area without amending
the generally applicable zoning regulations in ways perhaps
inappropriate in other areas of the County. The Three Lakes
Planning Commission, in fulfilling its role as a surrogate
county planning commission, could also perform the prelimi-
nary review and recommendation functions often delegated to
planning commissions. The County Commissioners could well
benefit from the specialized expertise of the Three Lakes
Commission in making its zoning decisions on special use
permits, rezonings, or similar matters.
2. Suggested New Regulations .
New regulations of the District are limited by the
enabling legislation to zoning plans, including a resolution
and zoning map. These would be required to be approved and
adopted by the County Commissioners. §30-28-1l9(2)(c),
C.R.S. 1973. Such regulations should include regulatory
provisions described and recommended in § lI.A.3. and
II.B.2., s pra .
D Water and Sanitation Districts .
In addition to the Three Lakes Water and Sanitation
District, to be discussed in a separate section of this
study, there are four organized and existing water and
sanitation districts in the three lakes area. Each of these
is located within the boundaries of the Three Lakes Water
and Sanitation District. They include:
1. Grand Lake Water and Sanitation District.
2. Shadow Mountain Water and SaThitation District.
3. Columbine Lake Water and Sanitation District.
4. North Shore Water and Sanitation District.
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Officials from each of these districts were contacted and
asked to submit all plans, regulations, rules, or other
materials adopted by the districts which would be within the
scope of the contract for this study. The consultant was
informed that only the Grand Lake Water and Sanitation Dis-
trict had such regulations. These were submitted and are
reviewed below.
1. Authority of Water and
Sanitation Districts .
Before discussing the Grand Lake Water and Sanitation
District, it would be helpful to outline the powers of water
and sanitation districts generally. These powers, applic-
able to all four districts, are found at §32-4-101 et seq.,
CR.S. 1973. They include the following powers:
1. To enter into contracts. §32-4-113, C.R.S. 1973.
2. To acquire, dispose of, and encumber real prop-
erty. Id.
3. To supervise the affairs of the district and
oversee all construction and operation of facil-
ities. Id.
4. To exercise eminent domain and take any property
necessary to exercise powers granted. Id.
5. To charge fees for services provided to the dis-
trict. Id.
6. To compel for health and sanitary purposes connec-
tion to a service line if such line is within
400 feet of an inhabited dwelling. Id.
7. To adopt bylaws for carrying on district business.
8. To have and exercise all rights and powers neces-
sary or incidental to or implied from the specific
powers described above. Id.
9. To levy and collect ad valorem taxes. §32-4-114,
C.R.S. 1973.
Such powers are to be liberally construed to protect the
public health, safety, convenience, and welfare. §32-4-130,
C.R.S. 1973.
The above-described powers appear to be rather broad,
though they must be read in light of existing case law.
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Municipal corporations, of which water and sanitation dis-
tricts are a limited kind, are generally considered to have
only those powers expressly granted or necessarily implied
from granted powers. City of Central v. Axton , 150 Cob.
414, 373 P.2d 300 (1962); ctE of Golden v. Ford , 141 Cob.
472, 348 P.2d 951 (1960). This rule, which appears to be
applicable to all kinds of municipal corporations, may be
additionally limited with respect to limited—purpose, quasi-
municipal corporations such as water and sanitation dis-
tricts. In City of Aurora v. Aurora Sanitation District ,
112 Cob. 406, 14TP.2d 662 (1944), it was said that a
quasi-municipal corporation was not a true municipal cor-
poration, but merely a public agency endowed with such
attributes of a municipal corporation as may be necessary in
performance of its limited objectives. See also People ex
rel. Rogers v. Letford , 102 Cob. 284, 79 P.2d 274 <1938YT
A Texas decision has gone so far as to say that a quasi-
municipal corporation can exercise only those powers clearly
granted. Tri-Ci y Water District v. Mann , 142 S.W.2d 945
(Tex. 1940). While that restrictive interpretation is
inconsistent with §32-4-113, C.R.S. 1973, permitting the
exercise of powers implied from the expressly enumerated
authority, it does further illustrate the concept that
special districts are normally permitted to act only to
achieve their limited objectives.
As a result of the foregoing, it would seem proper to
conclude that water and sanitation districts, while having
substantial authority over the construction, operation, and
maintenance of sewer and water facilities, would not be
authorized to exercise any form of land use regulatory
powers such as zoning, subdivision control, control of
critical areas and activities, or other such measures
described in preceding sections. It is possible, however,
that the above enabling legislation might permit water and
sanitation districts to adopt the following kinds of regula-
tions to improve the quality of discharges from their own
facilities as well as to assist in regulating certain non-
point sources:
1. Regulations compelling connection with sewers,
expressly authorized by §32-4-113(1)(m), C.R.S.
1973.
2. Regulations conditioning the provision of services
and requiring a permit as a condition therefor.
Such regulations would seek to improve the quality
of effluent introduced into district facilities in
order to allow proper treatment. An example would
be a requirement for proper pretreatment standards.
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3. Plans and regulations governing the location and
timing of the provision of facilities. Such could
help reduce growth induced by the unplanned pro-
vision of sewer service and thus slow the intro-
duction of development-related nonpoint sources.
Direct control of such sources is not contem-
plated, and the legality of any particular ordi-
nance of this type would need to be closely
reviewed.
4. Regulations establishing standards for the actual
work of constructing or connecting with district
facilities. These would attempt to regulate
erosion and sedimentation-related nonpoint sources
which would be created by such construction.
5. Regulations requiring timely maintenance of all
district facilities.
In addition, the following measures might be found lawful if
reasonably exercised:
1. A water and sanitation district may exercise its
eminent domain power to acquire property necessary
to exercise those powers granted. It is one of
the functions of a water and sanitation district
to provide safe and healthful water and sanitation
services. §32-4-102, C.R.S. 1973. Traditionally,
water and sanitation districts have exercised the
eminent domain power only to acquire land needed
for installation of district facilities. It can
be argued, however, that the statute permits
takings of any land needed to enable a district to
provide safe and healthful services. A liberal
interpretation of that concept could conceivably
allow a district to take lands which its facil-
ities have opened to development if they will
create nonpoint sources of water pollution. This
might be particularly so if such uses injured a
district’s water supply. While the consultant
realizes that this option may be unattractive foi
certain political reasons, it does provide an
option which might be used in certain critical
situations.
2. To fix service charges at a lower rate for those
users employing measures which improve the quality
of their discharges into the facilities.. See §32-
4-113(1) (1), C.R.S. 1973. Since fees may be
charged onli for paying principal and interest on
indebtedness of the district, and since the pur-
pose here would be the improvement of water
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quality, such a measure may be improper. See §32-
4—113(l)(1)(III), C.R.S. 1973.
It should be noted that the above suggestions have been made
independently of EPA or state requirements, which may require
one or more of those measures. See , for example, FWPCA
§307.
2. Grand Lake Water and Sanitation District .
The Grand Lake Water and Sanitation District is the
oflly one of the four independent districts within the
boundaries of the Three Lakes District to have rules and
regulations pertinent to this study. The rules are brief,
though they cover each of the following topics:
1. The rules require that connections be made by
licensed contractors and provide certain standards
for the issuance and revocation thereof. The only
requirement for the licensing of contractors is
that they have at least two years of experience in
laying sewer lines. Other standards to aid in the
determination of an applicant’s qualifications
should be included.
2. The rules establish connection standards, in-
cluding a requirement for compulsory connection
where a nuisance exists in the absence thereof.
In order to make administration of the compulsory
connection regulation more simple and more effec-
tive, it would seem appropriate to compel connec-
tion any time a water quality or other health
hazard is presented. The determination of what is
or is not a “nuisance” can be inexact and time-
consuming. Authority for so amending the regula—
tion is found in §32-4-113(l)(m), C.R.S. 1973.
3. The rules prohibit certain uses of sewer systems
by regulating the discharge of oils, acids, and
other industrial wastes, drainage of waters, and
discharge of grease into the system. The rules
require sand traps on lines containing dirt or
sand and prohibit wash racks in the absence of
sand traps. While these rules provide a good
beginning, they should be supplemented in accord-
ance with the regulations of the EPA, at 40
C.F.R. Part 128, which state that the following
sorts of wastes should not be introduced into
treatment works:
a. Wastes creating a fire or explosion hazard.
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b. Wastes which will cause structural damage to
facilities.
c. Wastes causing obstruction of flow in sewers.
d. Wastes which may create an excessive flow
rate.
In addition to these, 40 C.F.R. Subchapter N
specifies detailed pretreatment requirements for
certain identified industrial contributors to
publicly-owned sewage treatment works. Procedures
for enforcing these standards, and the general
pretreatment standards of 40 C.F.R. Part 128,
should be included in the District’s regulations.
4. Certain general provisions concerning inspection
of property and cleaning of lines are included.
It would seem advisable to adopt a full main-
tenance section to insure the proper continued
functioning of sewage systems. Requirements for
cleaning, repairing, and improving existing sys-
tems could be included.
In addition to the foregoing specific suggestions, the
Grand Lake District should consider adoption of the kinds of
proposed measures outlined in §2., supra . These would
supplement existing regulations within existing enabling
legislation. Adoption of the measures, whose validity was
described in §2., supra , as uncertain, should only be made
after close legal analysis of a particular proposed regula-
tion.
E. Three Lakes Water and Sanitation District .
The existence of the Three Lakes Water and Sanitation
District is the reason for this study. Ironically, though
the District does have a Master Plan, it has adopted no
rules and regulations pursuant thereto which might be the
subject of this study. In all fairness to the District, it
must be noted that its status has been unsettled for some
time and it has hesitated to move toward the adoption of
policies or rules until that status is clarified. This
discussion will, therefore, concentrate on the District’s
enabling legislation and present a brief review of its
Master Plan.
1. Three Lakes Water and Sanitation
District Enabling Legislation .
Prior to discussing the District’s enabling legisla-
tion, it should be noted that such nust be interpreted in
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light of the case law described in §II.E.l., supra . Refer-
ence to that section should be made at this time.
The Three Lakes Water and Sanitation District was
created by the Colorado legislature in 1971. See §32-10-101
et seq., C.R.S. 1973. In doing so, the legislature noted
t at the necessity for the District resulted from popula-
tion, growth and development, and resultant water pollution
in the three lakes region, §34-10-101(7), C.R.S. 1973, and
that the unique problems of the area required passage of a
special law. §32-10 -101(8), C..R.S. 1973. To assure that
the District’s purposes were achieved, the legislature
instructed that its powers were to be broadly construed.
§32-10-101(10), C.R.S. 1973. It then went on to provide
that the District could exercise, inter alia , the following
powers:
1. To enter into contracts. §32-10-115, C.R.S. 1973.
2. To acquire, dispose of, and encumber real and
personal property necessary to accomplish the
District’s purposes. Id.
3. To control its affairs. Id.
4. To exercise the power of eminent domain and take
public or private property. Id.
5. To construct and maintain works. Id.
6. To provide for revenues and levy ad valorem taxes.
Id.
7. To adopt rules and regulations to accomplish the
District’s purposes and to enforce the same. Id.
8. To have and exercise all rights and powers neces-
sary or incidental to or implied from the powers
granted in this article. Id.
9. To fix fees and charges for its services, except
for property zoned and used for agricultural
purposes. §32-10-117, C.R.S. 1973.
10. To compel connection of inhabited premises, the
nearest property line of which is within 400 feet
of service lines. §32-10-117, C.R.S. 1973.
11. To develop a master plan. §32-10-179, C.R.S.
1973.
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12. To enter into contracts under reasonable terms and
conditions with owners of property seeking inclusion
in the District. §32-10-125(4), C.R.S. 1973.
A review of these powers indicates that the Three Lakes
District is able to exercise all of those powers which
ordinary water and sanitation districts can exercise. See
§II.B.1., 2., supra . It may also be able to exercise those
powers described in that section as questionable, as well as
other powers. These include:
1. The authority to exercise eminent domain to pre-
vent water pollution of the lakes or streams
tributary thereto. Section 32-10-115(11), C.R.S.
1973, authorizes the use of eminent domain as is
necessary to achieve the purposes of the district.
Those purposes e çpressly include the prevention of
water pollution. §32-10-101(2), (7), and (10),
C.R.S. 1973. Logically then, the District should
be able to condemn land or land uses to prevent
water pollution. If this is so, the District
might be authorized to condemn areas of land which
its facilities might open to development, if
development would create water pollution hazards
not susceptible to regulation, i.e. , shoreline
areas and the lake. This is, of course, assuming
that a court would recognize such as a valid
public purpose. See Cob. Const . Art. II, §15.
It also assumes that such condemnation is, as §32-
10-115(1) requires, necessary , and not merely
helpful or convenient. 1f merely the latter, the
attempt to exercise eminent domain for such a pur-
pose would be barred. See Beth Medrosh Ha odol v.
City of Aurora , 126 Cob. 267, 248 P.2d 732 (195 ).
2. The authority to charge lower user fees of con-
tributors who take steps to provide safely-treat-
able sewage to the system. Section 32-10-117(1),
C.R.S. 1973, does not appear to prohibit such, as
may §32-4-113, C.R.S. 1973, see §II.D.l., su ra ,
since it does not limit the purpose of such tees,
but only their use. The ackno led ed water
quality purposes of the District bolster this
conclusion.
3. The authority to demand that persons seeking to be
included within the District not use or develop
their property in a way which will contribute to
the pollution of the lakes. Section 32-10-125(4),
C.R.S. 1973, permits the District to contract
under reasonable and equitable terms and condi-
tions with those seeking to be included in the
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District. Since the express urpose of the Dis-
trict is to improve the lakes water quality, a
term or condition requiring the foregoing might
well be considered reasonable, though restraints
on the use of property are generally strictly
construed. Alternatively, §32-10-125(4) may
provide only the authority to prohibit the con-
tribution of harmful wastes to the system. The
latter interpretation, however, seems unduly
restrictive in view of the express purposes of the
District.
The consultant once again cautions that the above sug-
gestions, as well as those in §1I.D.l., 2., supra , are
somewhat speculative. Water and sanitation districts have
traditionally exercised only limited powers over the pro-
vision of their services. That such districts, including
the Three Lakes District, have only those powers is probably
the prevailing view of the courts as well as the general
population. Thus, while enabling legislation may be broad
enough to provide such powers, actual implementation thereof
may be opposed. Review of specific proposals or regulations
which might take the approaches suggested above would be
necessary prior to their adoption.
2. District Master Plan .
The only document of the District available for our
review is the Regional Water Quality and Sewerage Master
Plan for the Three Lakes Water and Sanitation District.
This document has been closely reviewed by the EPA, which
voiced serious concerns about the nonpoint water quality
impacts which might result from implementation of the plan.
See Letter of Administrator Green, August 4, 1975. Spe-
cifically, the EPA was concerned that the system would
induce rapid growth and development in the area, which
plans, laws, and regulations in force would be unable to
control in order to prevent nonpoint source water pollution.
As stated in §i.C., supra , the consultant has assumed that
implementation of any system would create such growth and
development. A review of the Three Lakes Master Plan
reveals that no controls or measures for the alleviation of
such impacts were proposed for adoption by the District or
by any other entity. Neither is it clear whether the
alternative systems were evaluated in such terms. See
Master Plan, p. 50. This is somewhat surprising, since
certain nonpoint sources were identified by the Plan as
significant sources of water pollution to the lakes. Id.
pp. 17, 23-24. Thus, while the Plan m y have consider
nonpoint impacts of plan implementation, no measures to
control these were proposed nor were existing plans and
regulations evaluated. The District should closely review
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the above—recoumiended rules, regulations, and programs,
considering for adoption those which, in coordination with
County and ocher plans, best reduce nonpoint sources.
F. Grand Lake Metr2politan Recreation District .
The final local governmental entity under review in
this study is the Grand Lake Metropolitan Recreation Dis-
trict. The Recreation District is a sizable entity, encom-
passing a large part of the drainage of the lakes. It
currently administers a golf course in the vicinity of Grand
Lake and has proposed and partially completed tennis courts.
The District has no overall development plan. Letter of
Richard Doucette, Grand County Attorney, November 19, 1976.
Neither has it any other plans, rules, regulations, or
ordinances pertinent to this study. Enabling legislation
will therefore be reviewed briefly and proposed regulations
suggested.
1. Metro olitan Recreation
District Enabling legislation .
Like the water and sanitation districts’ powers de-
scribed above, the following description of metropolitan
recreation district authority must be read in conjunction
with the case law reviewed in §II.D., supra . The enabling
legislation grants metropolitan recreation districts auth-
ority, inter alia :
1. Tc enter into contracts. §32-2-114, C.R.S. 1973.
2. To borrow and issue bonds. Id.
3. To acquire, dispose of, and encumber real and
personal property, and any interest therein, for
the establishment of recreational facilities,
including leases and easements for the preserva-
tion or conservation of sites, scenes, open spaces
and vistas of recreational, scientific, historic,
aesthetic, or other public interest. Id.
4. To have the management, control, and supervision
of all the business and affairs of the district,
and the construction, installation, operations,
and maintenance of recreational facilities there-
in. Id.
S. To have and exercise the power of eminent domain
and dominant eminent domain in the manner provided
by law for the condemnation of private property
for public use to take any property within the
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District necessary to the exercise of the powers
granted by statute. Id.
6. To adopt and amend bylaws for carrying on the
business, objects, and affairs of the board and of
the district.
7. To have and exercise all rights and powers neces-
sary or incidental to or implied from the specific
powers granted by statute.
8. To levy and collect ad valorem property taxes,
subject to an annual limit of four mills. §32-2-
115, C.R.S. 1973.
Since the specific powers enumerated above are not to be
considered as a limitation upon any power necessary or
appropriate to achieving district purposes, the powers of
such districts should be broadly construed. See §32-2-
l14(1)(m), C.R.S. 1973.
2. Recommended Rules and Regulations .
Though the authority of the Grand Lake Recreation Dis-
trict should be broadly construed, the consultant would not
recommend, for legal and practical reasons, that the District
attempt to adopt any broad regulatory scheme which would
transcend its limited purposes. Thus, adoption of detailed
land use regulations is not recommended. The consultant would
envision that the District should exercise its traditional
authority in ways which would aid in eliminating point and
nonpoint sources resulting from its activities within the
District. The following rules and regulations are proposed:
1. The District should adopt regulations and stand-
ards governing the construction, operation, main-
tenance, and use of its facilities and land which
would reduce nonpoint sources emanating thereform.
These might include:
a. Erosion control, drainage, and sedimentation
regulations and design standards governing
construction and operation of its facilities.
If possible, measures to reduce existing
problems should be taken.
b. Regulations governing the fertilization of
land under its control, particularly the golf
course areas, and the irrigating of the same
to preventexcessive nutrient runoff.
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c. Regulations controlling the use of any trails
or camping areas designed to reduce erosion
and sedimentation. These would, of course,
gain importance as the District grows to
include lands which may be used as such.
d. A program of acquisition of open spaces, to
provide park and open areas abutting the
lakes or tributary streams. Under §32-2-
114(l)(g), C.R.S. 1973, the District is
expressly authorized to acquire real and
personal property for the preservation of
vistas and open spaces. It may do so through
the exercise of eminent domain. §32-2-
114(l)(k), C.R.S. 1973. So long as such
acquisitions were for District purposes and
served the public health, safety, and wel-
fare, acquisition of open space with the
additional purpose of reducing nonpoint
sources would likely be valid. See §32-2-
101, C.R.S. 1973. Acquisition for that
reason alone would, however, likely be deter-
mined to be invalid. §32-2-113(l)(g), C.R.S.
1973.
It is once again cautioned that the types of regula-
tions and programs proposed are not the sort of regulations
recreation districts have traditionally adopted. Before any
specific measures were adopted, they would need to bç care-
fully reviewed to determine their legal validity.
G. Federal Lands .
The majority of all land within the drainage of the
three lakes is public land in the ownership of the federal
government. Those lands are administered primarily by the
United States Forest Service, which administers the Arapaho
National Forest, and the Park Service, which administers
Rocky Mountain National Park and the Shadow Mountain National
Recreation Area, with small amounts under the jurisdiction
of the Bureau of Land Management. The very extent of the
federal land holdings in the region indicates that certain
nonpoint and point sources are and will be contributed
therefrom. The engineering consultant has identified
certain ones:
1. Road construction, especially for silvicultural
and recreational activities.
2. Silviculture.
3. Mining.
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4. Erosion of motor bike, hiking, and riding trails.
5. Campgrounds.
Each of these nonpoint sources arises from the use of fed-
eral lands within the basin.
While nonpoint sources are contributed from federal
lands, it is not likely, with one possible exception, that
development of a collection and treatment system on fee land
would heavily increase such sources. It is anticipated that
federal lands would not be available for development as home
sites, lodges, businesses, or other uses whose development
might be directly spurred by construction of the system.
While hiking, biking, or riding trails, and perhaps camp-
ground or picnic areas, might suffer some increased use from
the increased population of the region, the water quality
impacts would probably not be greatly accentuated as a
result of the development of the District’s system.
There may be a significant exception to the foregoing.
The Grand County Master Plan clearly envisions development
of a ski area in the Kawunechee Valley. Grand County Master
Plan, p. 11. The Forest Service Management Plan, at §325.1,
indicates that the Service also envisions ski areas when
County planning and zoning is ready to ontro1 the impacts
thereof. §3 2 5.3.e., f., USFS Management Plan. As the EPA
has recognized, construction of the District’s system could
result in increased pressure for the development of a ski
area in the Valley. See EPA Staff Memorandum on the Three
Lakes Water and Sanitation District’s Proposed Wastewater
Treatment System, §4. Development of the ski area would in
turn stimulate additional growth and development, possibly
in the sensitive Kawunechee Valley.
The foregoing indicates that certain limited nonpoint
and point source water quality hazards exist on federal
lands within the region, and that these may be enhanced by
construction of the District’s system. The Forest Service,
Park Service, and to a lesser degree, the BLM, must recog-
nize their responsibilities in controlling impacts resulting
from activities on the lands they administer. The following
measures should be a part of land use decisions of those
agencies:
1. The above-mentioned federal agencies should adopt
appropriate rules and regulations adequate to con-
trol all nonpoint and point sources generating
activities occurring on the lands under their
jurisdiction. Five specific sources have been
identified above. Any others must also be con-
trolled. Such rules and regulations should govern
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activities which create nonpoint sources and
provide standards and criteria limiting and
directing land uses as necessary to eliminate such
sources. Thus, restrictions on time and place of
use, intensity or type of use, requirements for
specific control devices, and other measures
should be considered. There appears to be little
doubt that the federal government, with its
extensive authority over the management of federal
lands, could lawfully adopt such regulations to
achieve water quality goals.
2. If any ski area is constructed in the three lakes
drainage, the Forest Service (the Park Service has
no plans for any such area, see Rocky Mountain
National Park Final Master Plan, January, 1976)
should insure throughout its planning, construc-
tion, and operation that design and use of the
area are done in such a way as to minimize all
sources of water pollution. Again, this is well
within the regulatory and management authority of
the Forest Service.
3. No ski area should be approved or constructed
unless all Grand County and other local plans,
rules, regulations, and laws are adequate to con-
trol the water quality impacts of the intense land
development which will result from construction of
the ski area.
4. Any special use permits granted by any of the
federal agencies with jurisdiction in the three
lakes for use of lands administered thereby should
be conditioned by specific requirements that all
activities be carried on in a way which will
prevent point or nonpoint sources of water pollu-
tion. Where applicable, for example in the case
of point source silvicultural activities, 40
C.F.R. Part 125, EPA standards should be invoked.
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III. PROPOSED ORDINANCES .
Throughout §11., supra , the consultants suggested
numerous new and revised regulations and ordinances which
the various entities with jurisdiction over land within the
Three Lakes District might consider for adoption. Partic-
ularly in the case of new regulations, no models were pro-
posed for adoption. Those will be presented in this sec-
tion.
The format which will be utilized herein will he to
describe numerous conceptual regulations and ordinances,
rather than to propose detailed documents ready for adop-
tion. These conceptual models will consist of brief descrip-
tions of proposed ordinances, highlighting the types of
procedures and review requirements which should be included
therein. The consultant does not feel that it would be
proper to attempt to draft detailed local regulations for
adoption. These should be drafted by local authorities
having available full and specific information on the nature
of local problems.
In a number of instances, more than one model con-
ceptual regulation or ordinance directed at the same problem
has been proposed. This is not to imply that adoption of
redundant regulations is necessary, but is merely an attempt
to supply alternative forms of regulation.
Perceived authority for each of the proposed regula-
tions and ordinances will be included in conjunction there-
with.
Finally, the consultant has suggested regulations and
ordinances which it believes would be necessary or helpful
to control nonpoint and point source impacts of development
within the three lakes region and which appear to be auth-
orized by enabling legislation. The feasibility of these
regulations from a local political or fiscal standpoint must
be determined by the various entities in the region them-
selves.
A. Master Plan .
Though authorized under §31-23-101 et seq., C.R.S.
1973, the Town of Grand Lake does not have a master plan to
control its future growth and development. Since develop-
ment of any new or upgraded collection or treatment facil-
ities and construction of any new ski area could dramatically
affect growth, a competent planner should be retained to
develop such a plan. The scope of the plan will necessarily
depend upon the Town’s resources, but it should consider
adoption of a statement of policies and a map similar at the
minimum to those rec ’ntly adopted by Rio Blanco County.
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These can be an important tool in regulating growth and
development, since no street, square, park, or other public
way, ground, or space, public building or structure, or
public or private utility may be located in a planned area
until approved by the planning commission. §31-23-109,
C.R.S. 1973. In addition, adoption of the major street plan
portion of a master plan permits a municipality to adopt
subdivision regulations, a critical tool in minimizing water
quality impacts of development. §31-23-113, C.R.S. 1973.
Without attempting to draft a master plan, the con-
sultant would recommend that any such plan establish as a
municipal policy that water quality impacts of future growth
and development be considered in all local decisions. Such
appears clearly authorized by §29-20-104, C.R.S. 1973, and
§31-23-107, C.R.S. 1973. The following specific policies
should be included within the plan:
1. The zoning plan, including text of regulations and
a map, required by §31-23-106(l)(d), C.R.S. 1973,
should accomplish the following:
a. Future growth and development should be
located in a manner minimizing water quality
impacts thereof.
b. All zoning decisions should require informa-
tion necessary to assure that development
will be located and carried out in a manner
consistent with enhancement of the lakes’
water quality.
2. The character, location, and extent of streets,
bridges, and other ways and spaces should conform
to the following:
a. Streets and other ways should be developed
and constructed in a fashion which minimizes
nonpoint sources of water pollution.
b. Streets and other ways should be located
where:
(1) Their placement will reduce water
quality impacts.
(2) Any related development induced thereby
will create no water quality hazards to
the lakes.
See §31-23-106(l)(a), C.R.S. 1973.
3. The general location, extent, and character of
public open spaces, parks, and grounds shall be
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designed to aid in the amelioration of all water
quality impacts of development surrounding the
spaces. Id.
4. The location of public utilities should be made in
areas best able to handle impacts thereof. §31-
23-106(1)(b), C.R.S. 1973. More importantly
perhaps, the extent of public utilities should be
consistent with local needs and not encourage
development having deleterious impacts upon water
quality. Id.
5. A factor coequal with others in local decision-
making and regulation should be whether the result
of any decision or regulation will enhance and
protect the water quality of the lakes. § 29-2O-
104, 31-23-107, C.R.S. 1973.
Inclusion of the above policies, as expanded to meet
specific local conditions, is a necessity in the local
master plan. To effectively control all point and nonpoint
sources of water pollution, the Town must es€iiblish as a
policy that local decision-making and regulation will be
carried out to reduce those sources.
B. Re u1ation of Development on the Basis
of Water Quality Impacts .
Perhaps the most direct way to control development-
related water quality hazards is to regulate that develop-
ment on the basis of its potential impact on water quality.
It seems safe to sa” that counties, see §ç29-20-l04; 30-28-
111, 113, 115, 133; 24-65.1-101 et seq . , C.R.S. 1973, and
municipalities, § 3l-23-30l, 3027303; 29-20-104; 24-65.1-
101 et seq., C.R.S. 1973, may regulate development on this
basis. Regulations are proposed below.
1. Impact Analysis Regulation .
One method of impact regulation is to provide local
review of the kind required by NEPA. Rio Blanco County is
currently considering such an approach. See proposed RBCO
§1001 et seq .
• a. Scope .
Impact analysis regulation adopted for use by county or
municipal governments should require review of all ?roposed
county actions and require that all “county actions’ do not
cause significant adverse effects on the county or its
incorporated municipalities. A “county action” is defined
to include all proposed rezonings, conditional uses, var-
iances, building permits, subdivision plats, individual
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sewage disposal permits, and H.B. 1041 permits. Before any
“county action” may be taken, its impact must be reviewed.
b. Nature of the Review .
The proposed Rio Blanco County regulation requires that
an impact statement must be prepared prior to the approval
of any “county action.” The impact statement must detail
the impact of the proposed “county action” upon specified
services and utilities such as sewerage and sanitation,
water supply, solid waste disposal, and storm drainage. The
impact statement must also outline the impact of the pro-
posed “county action” upon certain “matters” such as water
quality, soil arid geology, and vegetation.
c. Exemptions .
The proposed Rio Blanco regulation would not apply to
proposed ‘county actions” regarding single-family dwellings
used as residences.
d. Performance Standards
and Review Criteria .
The regulation requires submission of the impact state-
ment to various state and local officials and requires those
officials to determine the effect of the proposed action
upon the cost of providing and maintaining services and
activities. The regulation also requires that the planning
commission and the county commissioners find that the pro-
posed county action will not reduce the quality nor signifi-
cantly increase the costs of providing the services, activ-
ities, and matters specified in the regulation.
This type of impact analysis regulation could also
include specific standards which relate to the protection
and maintenance of water quality. This type of regulation
provides a technique for evaluating impacts which might
result from the approval of virtually any county land use
a:’tivity. The regulation acts as an early-warning system
which alerts the county and other officials of potential
adverse impacts associated with proposed developments. It
also allows the substantive review of the specific details
of the proposal to occur within the subsequent zoning,
subdivision, or building permit procedures.
e. Enforcement .
The proposed Rio Blanco County regulation prohibits the
taking of any county action which it has been found will
negatively impact the county’s environment or ability to
provide services.
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2. Impact Zoning .
The term “impact zoning” is a generic term which can
include a host of zoning approaches. Thus, special use
review can perhaps be considered a form of impact zoning in
that it requires review of a proposed use prior to its
location. In this section, however, the approach proposed
for the City of Cincinnati will be discussed. See , Manley,
“Cincinnati Strategy for Environmental Quality Overlay
Zones,” 7 Urban Lawyer 96 (1975). Such an approach, as
modified to meet the needs of the County, the Town of Grand
Lake, and perhaps Three Lakes Planning Commission, appears
authorized by the same statutes enumerated in §III.B.l.,
supra .
a. Scope .
The proposed regulation or ordinance is designed to
regulate new development by providing certain county or
town-wide or certain special areawide overlay standards to
measure and control development-related impacts.
b. Regulatory Approach .
Initially, certain review and performance standards for
the control of water quality impacts would need to be devel-
oped. These standards would then be “overlayed” or applied,
in addition to all other standards in the zoning ordinance,
II those areas or existing zones where potential water
quality impacts of development have been determined to be
most severe. If certain hazards are found to exist through-
out the region, these standards would be applied region wide
to reflect this finding. For example, in areas where soil
disturbance may create a particular nonpoint pollution
concern, standards relating directly to that concern would
be imposed or “overlayed” in addition to the generally
applicable standards in a zone. Similar approaches could be
taken, for example, in shoreline areas, areas along or near
streams, areas of hilly or mountainous terrain which are
subject to erosion, and other such areas. Similarly, over-
lay of certain standards to regulate potentially hazardous
activities in any area could be imposed. Thus, surface
mining standards might be adopted to regulate that activity.
This approach, of course, has the advantage of making cer-
tain restrictive standards applicable only in those areas
where conditions necessitate their use or only in relation
to activities which have been determined to be hazardous.
c. Review and Performance Standards .
The kinds of special overlay provisions which might be
considered for adoption are as follows:
1. Erosion Control.
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2. Sedimentation Prevention.
3. Drainage Control.
4. Grading Requirements.
5. Road and Other Paved Area Location Restrictions.
6. Density Requirements.
7. Standards Regulating Development of Sloping Ter-
rain.
8. Landscaping and Vegetation Protection Require-
ments.
These examples would, of course, need to be supplemented in
accordance with local experience.
d. Enforcement .
The overlay impact system is enforced through the
building code. No building permit may be obtained until all
overlay and other requirements applicable within the zone
are shown by the applicant to be met. In the proposed Cin-
cinnati ordinance, the burden of meeting all such require-
ments is on the developer, who must show in an environmental
impact statement that the proposed development will create
no environmental hazards relating to the criteria and stand-
ards set forth in the zone.
C. Floating Zone .
Floating zones can be extremely useful in regulating
certain uses which may be hazardous to water quality within
the three lakes region. Floating zones function essentially
like any other in that they specify certain uses which may
be permitted therein. The crucial difference, however, is
that floating zones do not appear on the zoning map but are
located, generally by amendment to the map, after applica-
tion therefor. Each application is studied by the local
planning and permit authorities and will be granted only if
the requested location is compatible with all review stand-
ards established for a particular zone. The review standards
will reflect the nature of the uses permitted in the zone.
Though a somewhat unique approach, floating zones appear to
be authorized for counties, § 3O-28-lll, 112; 29-20-104; 24-
65.1-101 et seq., C.R.S. 1973, and municipalities, 3l-23-
301, 3O2, O3; 29-20-104; 24-65.1-101 et seq., C.R.S. 1973.
Interestingly, the Town of Grand Lake s adopted a floating
zone for certain mobile home uses. §16.1, GLZO. Rio Blanco
County has done the same, see 1974 RBCO, and has studied
such for certain industrial uses.
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1. Scope .
The floating-zone approach could be used as a means of
permitting many kinds of uses which could impact water
quality. These could include all of the following uses
permitted in the Grand County and Grand Lake zoning regula-
tions:
1. Mobile hot es.
2. Certain hazardous industrial uses, such as feed-
lots, rendering plants, and uses requiring chemical
processing.
3. Certain hazardous commercial uses, such as gaso-
line stations.
4. Surface mines or quarries.
5. Cement plants or stone crushers.
6. Certain large residential developments.
7. Sewage disposal facilities.
8. Solid waste sites.
2. Regulatory Approach .
Prior to permitting the location of any “floating
zone,” an application therefor should be reviewed to deter-
mine the following:
1. Erosion due to establishment of any use shall be
controlled to prevent water pollution.
2. Sedimentation shall be controlled.
3. Drainage adequate to prevent nonpoint source water
pollution shall be provided.
4. All grading shall be carried on to minimize water
quality impacts.
5. Natural vegetation shall be retained and land-
scaping adequate to aid in reducing nonpoint
sources shall be provided.
6. Density shall be regulated and open spaces pro-
vided to help regulate nonpoint sources.
See §II.B.2.c.4., supra .
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The burden of submitting such information is on the
applicant. It is to be reviewed by the appropriate auth-
orities subject to the mandatory standard that no floating
zone shall be located which will, for any reason, degrade
the ambient water quality of the lakes.
3. Enforcement .
The floating zone concept is generally enforced by
requiring that the zone be located by amendment to the
zoning map. Thus, to locate the zone, a person must apply
for an amendment to the map, which amendment is then subject
to review in accordance with the requireuients of the fore-
going section. No amendment would be allowed unless water
quality impacts could be effectively and properly elimi-
nated.
D. Subdivision Regulations .
Of all the entities studied herein, only Grand County
and Grand Lake would be competent to adopt subdivision
regulations. Grand County has done so. Its regulations
were described and discussed in §II.A.3., su ra . The Town
of Grand Lake has not done so. Because subdivision regula-
tions are an important tool in regulating water quality
impacts of development, the Town should move toward adoption
of these regulations.
There is a preliminary problem which the Town must meet
before adopting subdivision regulations. Municipal enabling
legislation does not permit the adoption of subdivision
regulations until a major street plan has been adopted.
§31-23-213, C.R.S. 1973. While such a plan is not defined,
it must be assumed that it is the street plan portion of a
municipal master plan. See §31-23-206(l)(a), (c), C.R.S.
1973. Unfortunately, the Town has adopted no master plan
nor any portion thereof. Thus, before it can adopt sub-
division regulations, a necessary component for regulation
of water quality, the Town must adopt at least a major
Street plan. See §III.A., supra .
The style and substance of subdivision regulations have
been described in relation to the Grand County Subdivision
Regulations in §II.A.3., supra . It would serve little
purpose to reiterate those here. Reference should be made
to that discussion which will serve as a conceptual model
for local regulations as well. Particular attention should
be given to the perceived weaknesses in those regulations as
discussed by the consultants and an effort made to avoid
similar deficiencies in the Grand Lake version.
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E. Planned Unit Development Regulations .
Grand County and Grand Lake are the only entities with
authority to adopt a PUD regulation pursuant to §24-67-101
et seq., C.R.S. 1973. Grand County has adopted such a
regulation, which is discussed at §II.A.5., supra . The Town
of Grand Lake has adopted no full PUD ordinance but has only
provided certain “density” standards in its zoning ordinance.
See §II.B.l.c.(l), supra . These may be invalid. In order
to resolve the question of their validity and to provide a
better control mechanism for the establishment of PUD’s
within Grand Lake, the Town should adopt a PUD regulation
which complies with §24-67-101 et seq., C.R.S. 1973.
As in the case of the subdivision regulations, it would
be unnecessarily repetitive to propose a model ordinance
herein when one was discussed in §II.A.5., supra . Reference
to that discussion is particularly appropriate since counties
and municipalities operate under identical PUD enabling
legislation. Particular attention should be directed toward
the weaknesses perceived in the Grand County regulation by
the consultant.
It should be noted that the enabling legislation does
set certain requirements for PUD ordinances. Section 24-67-
104 states that municipalities may adopt a PUD ordinance
which:
“(a) Refers to [ 24—67--1O1 C.R.S. 1973];
“(b) Includes a statement of objectives of develop-
ment;
“(c) Designates the board, which may be a conmiission,
board, or the governing body of the county or
municipality, authorized to review planned unit
development applications as set forth in this
article;
“(d) Sets forth standards of development consistent
with the provisions of section 24—67—105;
“(e) Sets forth the procedures pertaining to the
application for, hearing on, and tentative and
final approval of a planned unit development
which shall afford procedural due process to
interested parties. The resolution or ordinance
shall establish maximum time periods within
which any application shall be reviewed and
approved, disapproved, or conditionally ap-
proved. At least one public hearing shall be
held by the board designated pursuant to para—
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graph (c) of this subsection (1) prior to
approval, disapproval, or conditional approval
of a planned unit development. Public notice
of the public hearing shall be given in the
manner prescribed by sections 30—28—116 or
31—23—304, C.R.S. 1973, whichever is applicable,
for the amendment of zoning resolutions and
ordinances. Written notice of the public hear-
ing shall be delivered or mailed, first—class
postage prepaid, at least fifteen days prior
to the public hearing to adjoining land-
owners.
“(f) Requires a finding by the county or munici-
pality that such plan is in general conformity
with any master plan or comprehensive plan for
the county or municipality.”
In addition, the act establishes the following standards and
conditions for PUD’s, which are to be included within munici-
pal ordinances:
“(1) Every resolution or ordinance adopted pursuant
to the provisions of this article shall set
forth the standards and conditions by which a
proposed planned unit development shall be
evaluated which shall be consistent with the
provisions of this section. No planned unit
development y be approved by a county or
municipality without the written consent of the
landowner whose properties are Included within
the planned unit development.
“(2) Such resolution or ordinance shall set forth
the uses permitted in a planned unit development
and the minimum number of units or acres which
may constitute a planned unit development.
“(3) Such resolution or ordinance establish the
sequence of development among the various types
of uses.
“(4) Such resolution or ordinance shall establish
standards governing the density or intensity of
land use, or methods for determining such density
or Intensity, in a planned unit development.
“(5) Such resolution or ordinance shall specify infor-
mation which shall be submitted with the planned
unit development application to ensure full evalua-
tion of the application, and the board designated
pursuant to section 24—67—l04(l)(c) require
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such additional relevant information as it may
deem lecessary.
“(6) (a) Such resolution or ordinance . i provide
standards for inclusion of common open space.”
(emphasis supplied)
The Grand County regulation appears to include require-
ments and provisions rel iting to each of the foregoing and
to expand upon them. The discussion of the regulation
should be reviewed at this time.
F. Individual Sewage Disposal Regulations .
Pursuant to S25-lO-10l et s q., C.R.S. 1973, Grand
County has adopted IndividuatSewage Disposal Regulations
which closely follow the state model regulations. §II.A.4.,
supra . The Town of Grand Lake has not done so. Despite its
apparent jurisdiction to enforce its regulations within the
Town of Grand Lake, see §25-1-504, C.R.S. 1973, the County
has not done so. If towns are authorized to adopt indi-
vidual sewage disposal regulations, Grand Lake should do so
to protect against degradation of the lakes’ water quality
due to this source.
The question of the authority of Grand Lake to adopt
such regulations arises upon a review of the enabling legis-
lation. Section 25-10-109, C.R.S. 1973, vests “primary
responsibility” for enforcement of individual sewage dis-
posal regulations with local health departments and boards
of health. Local health boards are defined by the Indi-
vidual Sewage Disposal Act to include local , county, dis-
trict, or regional health boards. §25-10-103(9), C.R.S.
1973. “Local health department” is defined to mean any
city, county, city and county, district, or regional health
department, and may include a local board of health. §25-
10-103(10), C.R.S. 1973. Whether “local board of health”
means a town health board is defined to mean any city,
county, city and county, district, or regional health
department, and may include a local board of health. §25-
10-103(10), C.R.S. 1973. Whether “local board of health”
means a town health board is uncertain under these sections.
indeed, towns are not included in the enumeration in sub-
section (10). See also §25-10-ill, CR.S. 1973, similarly
omitting any reference to “towns.” Consequentl 7 , it is
possible that towns are not authorized to have ‘primary
responsibility” for enforcing individual sewage disposal
regulations. Such an interpretation would, however, be
inconsistent with §25-1-609, C.R.S. 1973, which permits
every incorporated city or town to appoint a board of
health. See also 3l-l5.-20l(I)(c), C.R.S. 1973, and §31-15-
40l(1)(a), 501(1)(b), 50l(1)(a), and 709(l)(a), each of
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which appears to provide authority to regulate certain
individual disposal systems. To prohibit towns from exer-
cising such authority is also inconsistent with the state
policy of controlling the pollutants from such systems to
the greatest extent possible. §25-10-102, C.R.S. 1973. It
would appear reasonable to conclude that towns do possess
the authority, therefore, to act under the individual
disposal systems act. Because detailed analysis of the
County’s regulations was not made in §II.A.4.,, supra , the
consultant offers the following ordinance, drawn from the
state’s model.
1. Scope .
Any individual sewage disposal ordinance should regu-
late the installation, operation, and maintenance of the
various types of individual systems. These may include:
1. Absorption Systems.
2. Aerobic Systems.
3. Dispersal Systems.
4. Evapotranspiration Systems.
5. Privies.
6. Vaults.
7. Mini-Systems (those regulating small amounts of
effluent from sinks, tubs, showers, and the like).
8. Septic Tanks.
The regulations should also permit and regulate new systems,
which may require the use of technology not mentioned in
existing regulations.
2. Regulatory Approach .
Like subdivision regulations, individual sewage dis-
posal regulations should, and must by state statute, §25-10-
104, 105, C.R.S. 1973, provide standards for location,
construction, performance, installation, alteration, and use
of such systems, as well as procedures for the review of
applications to construct and use such systems. The latter
must, under §25-10-106, C.R.S. 1973, govern all aspects of
permit applications, testing, inspection, issuance and cease
and desist orders, maintenance, cleaning, and waste disposal
relating to such systems. The regulations should also
include regulations providing for the licensing of qualified
systems contractors and cleaners, §25-10-108, C.R.S. 1973,
to assure that construction and maintenance are carried out
by proper personnel.
3. Enforcement .
The regulatory scheme is enforced by requiring any
person desiring to install an individual system to obtain a
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permit therefor. The permit is issued upon compliance with
local regulations. As noted above, the regulatory scheme is
enforced by local boards or departments of health. §25-10-
109, C.R.S. 1973. Enforcement must be consistent with §25—
10-111, C.R.S. 1973, which provides:
“(1) No city, county, or city and county shall issue
to any person a permit to construct or remodel
a building or structure which is not serviced
by a sewage treatment works, until a permit for
an individual sewage disposal system has been
issued by the local health department.
“(2) No city, county, or city and county occupancy
permit shall be issued to any person for the
use of a building which is not serviced by a
sewage treatment works until a final inspection
of the individual sewage disposal system has
been made by the local health department,
as provided for in section 25—lO--106(l)(h), and
the installation has received the approval of
the local health department.
“(3) No individual sewage disposal system presently
in use which does not comply with the provisions
of section 25—lO --lOS(l)(e) regarding minimum
separation between the maximum seasonal level
of the groundwater table and the bottom of an
absorption system shall be permitted to remain
in use without compliance with this article and
the rules and regulations adopted under this
article, later than October 1, 1975.
“(4) Construction of cesspools, defined as covered
underground receptacles which receive untreated
sewage from a building and permit the untreated
sewage to seep into surrounding soil, is pro-
hibited.
“(5) Not more than one dwelling commercial, business,
institutional, or industrial unit shall be con-
nected to the same individual sewage disposal
system unless such multiple connection was
specified In the application submitted and in
the permit issued for the system.
“(6) No person shall construct or maintain any dwelling
or other occupied structure which is not equipped
with adequate facilities for the sanitary dis-
posal of sewage without endangering the public
health.”
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In addition, local boards of health may prohibit individual
systems in certain hazardous areas. §25-10-110, C.R.S.
1973.
G. Erosion Control Regulations .
Throughout the preceding sections of this report, the
necessity for erosion control regulations and ordinances was
emphasized. It was suggested that erosion control standards
might be included within an existing regulation, such as a
subdivision regulation, or adopted as an independent regula-
tion. It would appear that a county is authorized to adopt
such a regulation under its zoning authority, §30-28-111,
113, 115, C.R.S. 1973, its subdivision regulations, §30-28-
133(4)(b), (5), (6)(c), C.R.S. 1973, or as an independent
regulation. §29-20-104, C.R.S. 1973. Such might even be
proper within a building code. See §30-28-201 et seq.,
C.R.S. 1973. Municipalities may adopt such regi:iTations
under zoning, §31-23-301, 302, 303, and subdivision enabling
legislation. §31-23-206, 207, 214, C.R.S. 1973. Section 29-
20-104, C.R.S. 1973, appears to add authority for indepen-
dent regulations and H.B. 1041 also enhances municipal
authority. Erosion control provisions within a PUD also
appear to be lawful. §24-67-105, §31-23-313, §29-20-104,
C.R.S. 1973. The following sample regulation, drawn largely
from the EPA-Performance Controls volume and the proposed
Pitkin County Regulations, is proposed.
1. Scope .
Erosion control ordinances or regulations seek to con-
trol soil erosion and sedimentation by requiring adequate
provisions for surface water retention and drainage. A
typical erosion control ordinance provides that no land may
be disturbed unless a soil erosion and sedimentation control
plan is approved by a local zoning or building administrator.
2. Nature of the Review .
A separate soil erosion and sedimentation control plan
must be submitted and must include information on existing
natural features, proposed changes, control measures, and a
schedule of installation of control measures.
3. Exemptions .
One- and two - family dwellings, home gardening, and farm
operations pursuant to an approved farm conservation plan
are normally exempted from the erosion control plan require-
ment. Each exemption request should be reviewed to assure
that the grant of such will create no water quality-related
problems.
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4. Performance Standards .
General principles and standards are included in the
ordinance requiring that the land-disturbing activity
minimize disturbance of soil, preserve vegetation, and
accommodate increased runoff. Specific standards are
frequently included by reference to state and local soil
conservation standards. Erosion control regulation could be
coordinated with grading permit regulation and/or drainage
control regulation. While erosion control standards may be
particularly suited for a subdivision regulation, an inde-
pendent regulation or ordinance has the advantage of applying
to developments not classified as subdivisions and may be
able to be applied to construction in approved subdivisions.
H. Grading and Excavation Regulations .
Both the County and Grand Lake have adopted grading and
excavation regulations as part of their building codes.
These have been reviewed and analyzed in §SII.A. and II.B.,
supra . Though none of the special districts with jurisdic-
tion in the three lakes region has adopted such regulations,
the consultant has suggested that it may be possible for
them to do so. See §32-4-113, C.R.S. 1973, for authority of
water and sanita ion districts generally; §32-10-115, C.R.S.
1973, for authority of the Three Lakes Water and Sanitation
District; and §32-2-114, C.R.S. 1973, for authority of the
Grand Lake Metropolitan Recreation District. The following
suggested regulation, drawn from the EPA-Performance Controls
volume, would be equally applicable to each district and
would serve as a model to the County and Grand Lake, each of
whose grading regulations need strengthening to provide
water quality-related requirements as part of their regula-
tioris. It should be noted that regulation of grading and
excavation under building codes - - the approach of Grand
Lake and Grand County - - would appear to limit the applica-
tion of the regulations to grading involving the construc-
tion of buildings or structures. See §30-28-201, §31-15-601
et se ., C.R.S. 1973; §102, UBC (1970), adopted by Grand
t ke; §102, UBC (1974), adopted by Grand County. As a
result, such regulations might more wisely be placed in a
generally applicable zoning regulation or an independent
regulation. Authority therefor would seem to exist. See
§30-28-ill, 113, 115, C.R.S. 1973, for county zoning; §30-
23-1J3(5), 6(c), C.R.S. 1973, for county subdivision regula-
tion; and §29-20-104, C.R.S. 1973, which appears to permit
counties and municipalities to adopt independent regulations.
Municipal zoning authority is found at §31-23-301, 302, 303,
C.R.S. 1973, and subdivision authority at §31-23-206, 207,
214, C.R.S. 1973.
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A local grading and excavation permit system requires
that permits be obtained from the county or city engineer or
building official prior to the commencement of any grading
or excavation activity. A grading or excavation permit
application would normally accompany a development request
or building permit application.
1. Nature of the Review .
The permit application normally requires the submission
of a vicinity map, subsurface geology reports, application
fee and/or bond, a grading plan, including drainage and
erosion control plans, and schedules and specifications for
construction.
2. Exemptions .
Exemptions from the permit requirements are normally
made according to cubic yards to be removed. For example,
an excavation or grading involving less than 20 cubic yards
may be exempted. To insure that no water quality impacts
result, exemptions which would create such impacts should be
denied. Mining and sand and gravel operations are regulated
separately.
3. Performance Standards .
a. General .
General standards relating to preservation of natural
topography and vegetation, geological hazards, soils and
erosion, and sedimentation control are included. Separate
erosion and sedimentation control ordinances may be required
in order to prohibit or specifically limit grading in cer-
tain areas. This may be especially true where there are
steep slopes, easily erodible soils, or identified water
pollution problems. A separate grading regulation allows
for the review and regulation of construction activities
within approved subdivisions and previously plotted lots.
b. Specific .
Specific standards relating to the following are
normally included:
1. Standard cover cuts and steepness of finished
slope;
2. Standards for fill-type of material used in
compaction, steepness of finished slope;
3. Setbacks;
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4. Drainage.
c. Permit Conditions .
Grading and excavation permits frequently include con-
ditions relating to the following:
1. Time limits on construction;
2. Public safety;
3. Protection of utilities;
4. Protection of adjacent property;
5. Prohibition of water quality degradation.
d. Inspection Requirements .
Regulations can require supervision of grading by a
registered professional engineer. Regulations can also
require the submission of final reports after completion of
grading.
I. Drainage Re&ulations .
Effective drainage facilities can aid in preventing
erosion of developed areas, promote proper collection of all
storm waters and wastes carried thereby, and promote dis-
charge of collected storm waters in a manner which will not
be injurious to water quality. Of the entitites studied
herein, only Grand County, by its subdivision regulations,
and Grand Lake, in certain instances within its zoning
ordinance, regulate the installation of storm water drainage
facilities. Those have been described and suggestions for
their improvement offered. None of the special districts
has any drainage regulations, despite the fact that the
Metropolitan Recreation District might be able to benefit
directly from such. For example, proper drainage from the
District’s golf course could promote the water quality goals
EPA seeks to achieve in the lakes. Therefore, the consultant
has described a drainage regulation below.
1. Scope .
Drainage control plans normally establish a master plan
for storm drainage which includes the provision of facilities
for the collection and temporary detention of storm runoff
waters resulting from rain or melting snow. Typically, a
storm drainage plan must be submitted and approved by the
local government prior to the issuance of any building
permit.
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2. Nature of the Review .
The local government examines the proposed storm drain-
age master plan to determine whether the proposed system
will be adequate to control and treat storm water runoff and
construction and whether said construction is in conformance
with the storm drainage master plan. The local government
may also require the construction of facilities necessary to
meet the requirements of the master plan. The local govern-
merit may require on-site detention storage facilities and
may assess a fee to allow the local government to construct
the necessary improvements. Where feasible, full treatment
of runoff waters is required.
3. Exemptions .
Some ordinances exempt single-family residences but
assess those residences a special, predetermined fee. If
there is an intent to subject lots in approved subdivisions
to drainage requirements, it may be unwise for the entities
herein to take this approach. In any case, no use which
will create a water pollution hazard in the lakes should be
exempt.
4. Specific Requirements .
Specific review and submission requirements such as
the following, adapted from the Pitkin County Land Use Code,
may be considered:
1. Complete drainage systems for the entire sub—
division shall be designed by an engineer and
submitted to the Planning Commission prior to the
issuance of any improvement permits. These
systems shall be shown graphically. All existing
drainage features which are to be incorporated in
the design shall be so identified. If the Final
Plat is to be presented in sections, an approved
general drainage plan for the entire area shall be
presented with the first section and appropriate
development stages for the drainage system for
each section shall be identified.
2. The drainage system shall be designed to:
a. Permit the unimpeded flow of natural water-
courses;
b. Insure adequate drainage of all low points;
c. Consider the drainage basin as a whole,
accommodate not only runoff from the proposed
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subdivision but also, where applicable,
accommodate the runoff from areas adjacent to
and “upstream” from the subdivision itself.
d. Permit collection and retention of storm
water runoff in a fashion which will protect
and enhance the water quality of all lakes
and streams within the drainage basin.
3. All proposed surface-drainage structures shall be
indicated.
4. All appropriate designs, details, cross-sections
and dimensions necessary to clearly explain pro-
posed construction materials and elevations shall
be included in the drainage system plan.
5. Any contemplated floodplain encroachment or
channeling shall be thoroughly analyzed and its
effect on stream flow determined before it is
undertaken. Any construction, dumping and filling
operations in a designated floodway shall con-
stitute an encroachment.
5. Statutory Authority .
The following statutes provide authority to local
governmental entities to enact regulations controlling
drainage and surface runoff:
Counties: §30-28-133(3)(a)(VII), 4(6) and 6(c),
C.R.S. 1973.
Municipalities: §30-28-111, 113, and 115, C.R.S.
1973.
General authority for such regulations is also provided
by §29-20—104, C.R.S. 1973.
.3. Regulation of Critical or Hazardous
Areas and Activities .
With the passage of House Bill 1041, as codified at
§24-65.1-101 et seq., C.R.S. 1973, and House Bill 1034, as
codified at §2 -20-10l et seq., C.R.S. 1973, regulation of
development in and regarding certain hazardous areas and
activities was expressly approved by the state legislature.
H.B. 1041, which enumerates 21 separate areas and activ-
ities, provides a comprehensive list of matters which may be
made subject to such regulation in order to minimize point
and nonpoint source impacts. The consultant has proposed
adoption of regulations pertaining to eight such areas and
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activities and has de ’cribed the Land Use Commission’s Model
Regulations for each. These eight are:
1. Site selection and construction of major new
domestic water and sewage treatment systems and
major extensions of existing domestic water and
sewage treatment systems.
2. Site selection and development of solid waste
disposal sites.
3. Site selection and development of new communities.
4. Mineral resource areas.
5. Natural hazard areas (includes regulations per-
taining to floodplains and geological hazards).
6. Historical, natural, and archaeological resource
areas of statewide importance (includes regula-
tions pertaining to shorelands of major publicly-
owned reservoirs and wildlife habitat areas).
In certain instances, the consultant has included additional
water quality considerations in its description of the LUC
regulations. This was done to provide suggested means for
control of water pollutant sources indigenous to the three
lakes area.
While it may be that certain of the regulations are
particularly appropriate for adoption by Grand County rather
than the Town of Grand Lake (the only entities under study
which may adopt such regulations), the Town could benefit
from adoption of certain regulations as well. Shoreline
regulation and regulation of new sewage and water facilities
are examples.
It should be noted that, though H.B. 1041 model regula-
tions are described, that act does not provide the sole
source of enabling legislation for the adoption of regula-
tions dealing with hazardous areas and activities. As is
stated in the LUC’s Guidelines for Identification and Desig-
nation Regulations at §106, regulation of hazardous areas
may be accomplished under zoning enabling legislation or
HB. 1034, though the LUC intends to insure that the intent
of H.B. 1041 is carried out by any such alternative regula-
tion. As a result, Grand County, under §30-28-101 et selL.,
C.R.S. 1973, and Grand Lake, under §31-23-301 et seq.,
C.R.S. 1973, might adopt the following regulations under
their zoning authority, though certain variations in the
regulations might be required to conform to the requirements
thereof. Similarly, both might utilize H.B. 1041 as auth-
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ority. See §29-20-104, C.R.S. 1973. The models described
here would generally be applicable regardless of the source
of authority.
1. Site Selection of Major New Domestic
Water and Sewage Treatment Facilities .
a. Scope .
The Land Use Commission’s Model Regulations define a
new domestic sewage treatment facility as one capable of
treating the wastewater generated by 20 or more people.
§14-102(2). A new domestic water treatment system is
defined as a system for the provision of a public water
supply which is proposed to serve a population equivalent to
25 single-family dwellings. §14-102(1).
b. Nature of the Review .
After designation by the local government, a permit
must be obtained prior to the construction of any major new
domestic water and/or major new sewage treatment facilitity.
§14-302(1) and §14-302(2). The application for such permit
is required to include detailed plans and specifications for
construction, a demonstration of need, and an environmental
impact analysis. §14-304. The environmental impact analysis
must include evidence of conformity with local land use
plans and an assessment of impact on surface and groundwater
quality and other environmentally-sensitive resources. §14-
304(4)(a), (b), and (d).
c. Exemptions .
The regulations dealing with major new water and sewer
systems do not apply to major extensions of existing domes-
tic water and sewage treatment facilities. But see §III.J.
2., supra .
d. Criteria for Approval .
The Model Regulations require that the local government
make the following findings before approving a new water or
sewage treatment system:
1. That the proposed facility does not conflict with
adopted local land use plans or with state or
federal water plans. §14-306(l)(a).
2. That the proposed facility is needed because
existing systems’ operational efficiency, state of
repair, or level of treatment is such that replace-
ment is warranted.
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3. That existing facilities cannot be upgraded or
expanded to meet waste discharge permit conditions
of the Colorado Water Quality Control Division.
§14-306(j).
4. That the proposed facility will not encourage
strip development or leapfrog development. §14-
306(1).
5. That the proposed facility will not decrease the
quality of downstream surface or subsurface water
resources below that designated by the Colorado
Water Quality Contol Commission. §14-306(1).
It should be remembered that these regulations are in
addition to any applicable state or federal water quality
requirements.
2. Major Extensions of Existing Domestic Water
and Sewage Treatment Facilities .
a. Scope .
Once identified and designated as an activity of state
interest, a permit from the local government must be ob-
tained for all proposed major extensions of existing domestic
water and sewage treatment systems. §15-104(2). A major
extension of an existing sewage treatment system is defined
to mean any modification of existing sewage treatment plants
to increase hydraulic capacity or upgrade capability, any
extension of existing main collector sewer lines, or any
extensions to service a population of 20 or more people or
the equivalent thereof in other uses. §15-102(3).
b. Nature of the Review .
A permit application must include the results of the
preliminary review and comments by the Colorado Department
of Natural Resources and the Colorado Department of Health.
§l5-303(3)(b). Each application is required to include
detailed construction p1a is and specifications, as well as a
demonstration of need. §15-304(2) and (4). Permit applica-
tions must include an environmental impact analysis which
assesses the impact of the proposed facility on water qual-
ity. § l5-304(5)(b)(i); 15-304(5)(a) and (x). The applica-
tion must also include a financial impact analysis, stating
whether the major extension capacity exceeds the proposed
ten-year population growth needs as detailed by the appro-
priate region 208 planning demographic projections. If so,
the application must detail the excess capacity and the cost
of that excess capacity to the community. §l5-303(6)(d).
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c. Exemptions .
The Model Regulations do not apply to new major domes-
tic water and sewage treatment facilities. B ut see §III.J.l.,
supra .
d. Criteria for Approval .
A local government may approve a permit application for
a major extension of existing domestic water or sewage
treatment facilities which meets, inter alia , the following
criteria:
1. Major extensions of domestic water and sweage
treatment systems shall be permitted in those
areas in which the anticipated growth and devel-
opment that may occur as a result of such exten-
sion can be accommodated within the financial and
environmental capacity of the area to sustain such
growth and development. §15-304(a).
2. The proposed development does not conflict with an
approved local master plan or other applicable
regional, state, or federal land use or water
plan. §15-304(b).
3. The proposed development does not adversely affect
either surface or subsurface water rights of
upstream or downstream users. §15-304(c).
4. Adequate water supplies, as determined by the
Colorado Department of Health, are available for
efficient operational needs. §15-304(d).
5. Existing facilities cannot be upgraded or expanded
to meet waste discharge permit conditions of the
Colorado Water Quality Control Division. §15-
304(j).
6. Such development will not encourage strip devel-
opment or leapfrog dev.elopment. §15-304(1).
7. The proposed development will not decrease the
quality of peripheral or downstream surface or
subsurface water resources below that designated
by the Colorado Water Quality Control Division.
§15-304(n).
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3. Site Selection and Development of
Solid Waste Disposal Sites .
a. Scope .
Once solid waste disposal is designated as an activity
of state interest, development of a proposed solid waste
disposal site must be preceded by a permit therefor obtained
from the appropriate local government. §16-302(1) and (2).
A solid waste disposal site is defined as a place at which
disposal or recycling of solid wastes takes place. §16-
102(11).
b. Nature of the Review .
The Model Regulations require the submission of a
detailed permit application which must include the follow-
ing:
1. Construction plans arid specifications. §16-
305(2) (d).
2. Engineering data. §16-305(2)(k).
3. Geologic data. §16-305(2)(1).
4. Groundwater and hydrological data. §16—305(2)(m).
5. Operational plans. §16-305(2)(q).
/ c. Exemptions .
The Model Regulations do not apply to dumping of an
individual’s solid waste on his own property provided such
does not constitute a public nuisance and provided such is
done in accordance with applicable State Health Department
rules and regulations. §16-102(11); see §30-20-106, C.R.S.
1973.
d. Criteria for Approval .
Prior to approval of a permit application, a local
government must find that the proposed location or develop-
ment meets, inter alia , the following criteria:
1. Site selection and development of a solid waste
disposal site shall be consistent with public
health and welfare and air and water quality
standards and adaptable to appropriate land use
plans. §16-306(1) (d).
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2. Sound conservation practices shall be followed
during the location and development of solid waste
disposal sites. §16-306(l)(e).
3. The location and development of a solid waste
disposal site be in an area not otherwise provided
with a solid waste disposal site, adequate in
terms of capability, capacity, environmental
protection, conservation practices, cost effic-
iency, and access. §16-306(l)(f).
4. The site selection, development, and final use of
the site shall be in accordance with the adopted
master plan in this jurisdiction and any applic-
able regional and state plans. §16-306(l)(k).
5. The final use of the site shall be compatible with
present and planned surrounding land uses. §16-
306(1) (1).
6. The final use of the site shall be determined
within the physiographic limitations of the site.
§ 16-306(l)(m)
4. Site Selection and Development of
New Communities .
a. Scope .
Once “site selection and development of new cominun-
ities” is designated by the local government as an activity
of state interest, all proposed “new communities” must
receive a permit from the local government prior to ap-
proval. The Model Regulations define three types of new
communities, including “new community,” “the major revita-
lization of existing municipalities,” and the “establishment
of urbanized growth centers in unincorporated areas.” §21-
102(4)(a) and (b). The Land Use Commission’s guidelines
suggest that the definition of “new community” may vary
widely from jurisdiction to jurisdiction and provides other
model definitions as well. See Appendix A to Model Regula-
tions, Chapter 21, p. 21-13. A definition proposed by the
Pueblo COG would include the expansion and/or extension of
existing sewer service districts which serve a given popu-
lation or land area as one of the threshold definitional
requirements of “new communities.” Appendix A, p. 21-14.
Boulder County’s definition of “new community” includes the
formation and expansion of any special district. Appen-
dix A, p. 21-16. A H.B. 1041 “new community” review process
would most likely be integrated with existing land use
procedures. See Proposed Pueblo Approach, Appendix A,
p. 21-18.
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b. Nature of the Review .
A permit application must meet detailed submission
requirements, including an assessment of impacts upon water
quality. §21-304(2) (e) (1).
c. Exemptions .
Those developmental activities which might be exempted
from the “new community” permit requirements will vary
depending upon the definition of “new community” which is
adopted by the local government. In the three lakes area,
exemptions should be reviewed to assure that any grant of
such will create no water quality hazards in the lakes.
d. Criteria for Approval .
A local government may approve an application for a
permit for site location and construction of a “new com-
munity” only if the proposed development meets a number of
criteria, including the requirement that existing water
quality of “affected” waters will not be adversely impacted,
unless permitted by law. §2l-3O6(l)(p).
5. Natural Resource Area of Statewide
Importance -- Shorelands of Major
Publicly-Owned Reservoirs.
See also §III.K., infra .
a. Scope .
Once shorelands are designated as an area of state
interest, a permit must be obtained from the local govern-
ment in order to develop within the designated shorelands of
a major publicly-owned reservoir. §9-402(1). The regula-
tions are intended to protect shorelands from floodwaters
and to protect publicly-owned reservoirs from destructive
shoreline uses and significant degradation of their water
quality. §9-101(1) and (2). Shorelands are defined to
include all lands extending a minimum of two hundred feet
shoreward of the flood protection level and all associated
wetlands. §9-102(4). The reservoir floodplain is defined
as that area inundated when a one-hundred-year flood is
routed through the reservoir. §9-l02(5)(a) and (b).
b. Nature of the Review .
The Model Regulations require that any person seeking
to develop any area within the shorelands of a major pub-
licly-owned reservoir obtain a H.B. 1041 permit prior to
obtaining any other necessary permit, any rezoning, or
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instituting any other local governmental action. §9-104(2).
The regulations specify certain allowable uses within the
reservoir floodplain, §9-301(1) and (2), and prohibit the
development of any wetlands of any major publicly-owned
reservoir. §9-301(3) and §9-402(3).
A permit application must include data concerning the
scope and nature of the proposed development, §9-401(c), and
an environmental impact analysis which must assess the
potential impact on water quality and environmentally-
sensitive factors. §9-404(3)(b)(I) and §9-404(3)(d).
c. Exemptions .
The regulations do not apply to “non-major” reservoirs
or to privately-owned reservoirs. See §9-102(3).
d. Criteria for Approval .
A permit application for development of areas within
shorelands of a major publicly-owned reservoir may be
approved only if a number of criteria, including the follow-
ing, are met:
1. The proposed development does not conflict with an
approved local master plan or other applicable
regional, state, or federal land use or water
plan.
2. The proposed development will not decrease the
quality of peripheral or downstream surface or
subsurface water resources below that designated
by the Colorado Health Department. §9-406(1)(a)
and (d).
6. Mineral Resource Areas .
a. Scope .
Once a mineral resource area is designated as an area
of state interest, any person who desires to engage in any
development within a mineral resource area must obtain a
permit from the local government. §3-201. Mineral resource
areas are classified as follows:
1. Mineral resource areas containing only sand,
gravel, quarry aggregate, or limestone used for
construction purposes. §3-203.
2. Mineral resource areas containing oil and gas or
geothermal resources. §3-204.
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3. Mineral resource areas containing minerals other
than sand, gravel, quarry aggregate, limestone
used for construction purposes, oil, gas, or geo-
thermal resources. §3-205.
Within each classification of mineral resource areas, cer-
tain permitted, conditionally permitted, and prohibited land
uses are delineated. Where insufficient data concerning the
type of area involved exist, the local government may desig-
nate an area as a natural resource “initial control area.”
§3-202(2). Such an area is generally larger than an actual
FI.B. 1041 mineral resource area, sirLce sufficiently accurate
data to delineate the mineral resource area precisely do not
exist. When an application for development within such an
initial control area is received, further studies are con-
ducted, and the area is either classified as one of the
natural resource areas defined above or is determined not to
be a H.B. 1041 natural resource area. §3-202(3) and (5).
b. Nature of the Review .
Permit applications are required to include detailed
mineral development plans as well as a statement of intended
compliance with all federal, state, and local requirements.
§3-404(1) and §3-404(l)(m).
c. Exemptions .
The regulations do not apply to the extraction of
minerals covered by the Colorado Mined Reclamation Act.
§34-32-101 et seq., C.R.S. 1973, as amended by H.B. 1065
(1976) . — ____
d. Criteria for Approval .
The local government may approve an application for a
permit to engage in development of a mineral resource area
only if a number of criteria, including the following, are
met:
1. The use is an allowable or conditional use within
the appropriate mineral resource area classifica-
tion.
2. Potential health and safety hazards are reasonably
mitigated. Express water quality-related stand-
ards could also be included, particularly if
regulation were accomplished under H.B. 1034. §3-
405(1)(c) and (i).
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7. Natural Hazard Areas _ -- Floo4plains .
a. Scope .
Once a floodplain is designated by the local govern-
ment, any person who desires to develop therein must obtain
a permit prior to the commencement of any development or
building. §6-201(3). Under the LUC’s Model Regulations, a
floodplain consists of two separate parts, the floodway
zone, which is that part of the floodplain subject to deep
flooding during a 100-year flood, and the low-hazard zone,
in which the water level, during such a flood, will exceed
no more than 1-1/2 feet. §6-202 and §6-203. The regula-
tions specify that only certain kinds of development or
building may occur in each of those zones. When technical
data are unavailable o delineate precisely the boundaries
of the floodplain, th local government may designate a
flood hazard initial control area. §6-201. A permit
applicant may then be required to perform or finance further
studies to determine whether his proposed development lies
within a floodway, low-hazard zone, or is without the flood-
way entirely. §6-201(6).
b. Nature of the Review .
Permit applications must include engineering maps,
drawings, data, and plans. §6-403(2), (3), and (4). The
permit applications must include an assessment of the impact
on and coordination with other communities on the same river
system. §6-403(5).
c. Exemptions .
The regulations do not apply to flood control devices
or structures. §6-105(2). Limitation of exemptions creating
water quality hazards should be considered.
d. Criteria for Approval .
The regulations impose different standards, depending
upon whether a proposed development is located within the
floodway or the low-hazard zone. §6-202 and §6-203. In
general, all development of buildings and structures is dis-
couraged within the floodway zone. Within the low-hazard
zone, the regulations seek to assure that the floodplain
area will not be increased by construction within that zone
and that downstream persons and property will not be injured
by the effect of such construction on flood conditions.
Water quality safeguards are not included per Se, but should
be, particularly in regulations adopted pursuant to zoning
enabling legislation or H.B. 1034.
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8. Natural Hazard Areas -- Geological Hazards .
a. Scope .
Once a geological hazard area is designated by the
local government, any person who desires to develop therein
must obtain a permit before seeking any other permit,
rezoning, or other action by the local government. §4-
104(2). Under the LUC’s Model Regulations, certain land
uses are specified as allowable within designated geological
hazard areas. §4-203. Other land uses are prohibited
unless techniques to mitigate their impact are employed.
§4-204. Specific mitigation techniques are specified for
the various kinds of geological hazards, such as landslides,
mud flows, and ground subsidence areas. §4-205(1)(b)(d) and
(h). If the mitigation techniques are employed, land uses
otherwise prohibited may be allowed as conditional uses.
§4-205(1). When technical data are unavailable to delineate
precisely the boundaries of a geological hazard area, the
local government may designate a geological hazard “initial
control area.” §4-202(2). A permit applicant may then be
required to perform or finance further studies to determine
whether his proposed development lies within a geological
hazard area, or is without a geological hazard area entirely.
§4-202(4) and (5).
b. Nature of the Review .
Permit applications must include maps and geological
reports describing the geological condition of the area.
§4-403(l)(e) and (f). The LUC’s Model Regulations also
specify additional submission requirements for the various
kinds of geological hazards. §4-403(2).
c. Exemptions .
The Regulations do not apply to nonconforming uses in
existence on the date the area is designated, but noncon-
forming uses which are discontinued or destroyed are subject
to the Regulations. §4-105(2). Nonconforming uses which
are nuisances or which increase the severity of geological
hazards are not allowed to continue as nonconforming uses.
§4-105(3).
d. Criteria for Approval .
A permit application for development of areas within
designated geological hazard areas may be approved only if a
number of criteria, including the following, are met:
1. Permitted land uses, including public facilities,
which serve such uses must avoid or mitigate
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geological hazards at the time of initial con-
struction, using the techniques set forth in the
LUC’s Model Regulations.
2. Nonconflicting open space uses, such as agricul-
ture, grazing, greenbelt, and recreation, are
incorporated into the development plan to the
greatest practicable extent.
3. Provision is made for the protection of the long-
term health, welfare, and safety of the public
from geological hazards to life, property, and
associated investments. Express water quality-
related standards could also be included, par-
ticularly if regulation were accomplished under
H.B. 1034. §4-404(b), (e), and (1).
9. Significant Wildlife Habitat .
a. Scope .
Once a significant wildlife habitat has been designated
by the local government, any person who desires to develop
therein must obtain a permit prior to the commencement of
any development activity and prior to any application for
rezoning or building permit. §8-301. The term “wildlife”
is defined to include fish as well as wild vertebrates. §8-
102(5). Significant wildlife habitat means those areas
containing or having a significant impact upon those wild-
life habitats in which the wildlife species, identified by
the Colorado Division of Wildlife, could be endangered by
development. §8-102(4). Wildlife habitat is, in turn,
defined to mean a geographical area containing those elements
of food, water, cover, space, and general welfare in a com-
bination and in quantities adequate to support a species for
at least a portion of the year. §8-102(6).
b. Nature of the Review .
Permit applications must be accompanied by copies of
maps, reports, and data, including a description of the
nature, density, and intensity of the proposed development.
§8-304(5). The application must also include a plan of
operation which must contain the applicant’s analysis of the
effects of the proposed development upon wildlife species
(identified by the Colorado Division of Wildlife) within the
designated wildlife habitat. §8-304(6). The operation plan
must demonstrate how the applicant will meet applicable
habitat needs and will avoid conflicts with habitat needs.
Where conflicts with habitat needs are unavoidable, the
applicant must present proposals to minimize the conflicts,
including compensation through replacement or enhancement of
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habitat or an alternative site. §8-304(6) . Habitat needs
are set forth in detail in the LUD Model Regulations, and
include the following:
1. Production areas (including spawning beds and
permanent shallow water for amphibians);
2. Principal feeding areas;
3. Summer range;
4. Winter range;
5. Concentration areas;
6. Shelter areas;
7. Water and minerals (including high quality water
for fish, continuous stream flows, and conserva-
tion poois in reservoirs, and stable water levels
in lakes and reservoirs);
8. Movement corridors;
9. Buffer zones; and
10. Shoreline vegetation.
c. Criteria for Approval .
The local government may approve an application ft a
permit to develop within a significant wildlife habitat if
all the following criteria are met:
1. The development is compatible with the significant
wildlife habitat as designated;
2. The development is designed and will be admin-
istered, controlled, and regulated to allow man to
function in harmony with, rather than be destruc-
tive to, the significant wildlife habitat as
designated;
3. The applicant has presented and is capable of
administering a program to meet the specific
habitat needs of species identified by the Division
of Wildlife of the Department of Natural Resourc’ s
within the significant wildlife habitat as desig-
nated.
4. The development has been approved by the Division
of Wildlife of the Department of Natural Resources.
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K. Shoreline Protection Regulations .
Protection of shorelines has been described in §III.B.
and §III.J., as well as in §II.A.3.c.(2), supra . The
following model regulations, taken from the PA volume on
Performance Controls for Sensitive Lands are included as
alternatives for this important topic. Authority therefor
can be found at §30-28-101 et seq.; §31-23-301 et seq . ; §29-
20-104; and §24-65.1-101 et seq., C.R.S. 1973. fhe model
regulations proposed in t i EPA volume are of two types:
1. Stream and shoreline setbacks and buffer zones.
2. Shoreline management plans.
1. Stream and Shoreline Setbacks
and Buffer Zones .
a. Scope and Nature of Review .
The setback and buffer zone regulations provided in the
EPA volume establish a buffer zone or setback which may be
established as a fixed boundary at a specified distance from
the shoreline or as a floating buffer zone in which the
width of the zone may vary in accordance with soils, vegeta-
tion, slope, and erosion potential of the shoreline areas.
b. Performance Standards
and Review Criteria .
Once the boundaries of a shoreline zone are delineated,
the allowed, prohibited, and special or conditional uses
within the buffer zone are specified. Some regulations
provide that the number of allowed or permitted uses may
increase as the distance from the shoreline increases. This
should be the case only if water quality is not injured
thereby. Additional restrictions on land development
activities within the zone, such as prohibitions or restric-
tions on dredging, filling, or dumping, might also apply.
Indeed, a local government might consider coordinating its
dredge and fill requirements and standards with those of the
Corps of Engineers. See 40 F.R. 31320, July 25, 1975.
Special setbacks could be incorporated to deal with special
activities or developments, such as septic systems, parking
lots, and other activities involving significant construc-
tion-related land and soil disturbances.
2. Shoreline Management Plans .
a. Scope and Method of Review .
The EPA volume discusses certain state-mandated water
resource management systems at pages 15-16 and 118-121.
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Such programs exist in the states of Wisconsin, under the
Wisconsin State Water Resources Act of 1965, and Washington,
under the Washington Shoreline Management Act of 1971. Both
states’ laws require local agencies to develop and adopt
regulatory programs for the protection of shorelines,
streams, and other water resource areas. In Colorado,
i-LB. 1041 allows for the special regulation of “shorelands
of major publicly-owned reservoirs.” See §III.J., supra .
Local governments in Colorado could employ techniques
used in state-mandated local management plans under tra-
ditional zoning authority, under H.B. 1041, and under
H.B. 1034. Local management plans typically include erosion
control and water quality considerations, as well as flood-
plain regulations. Those local plans frequently employ
buffer zones, setbacks, and restrictions on the removal of
natural vegetation in order to protect shoreline and stream
resources. For example, the Wisconsin act requires a one-
hundred-foot setback for septic systems and prohibits cer-
tain uses on steep slopes and wet soils. The zoning regula-
tions should also include submission requirements and specify
standards for each zone. Requirements and standards may
vary from zone to zone.
L. Campground and Recreational
Area Regulations .
The engineering consultant has identified campgrounds
as a significant source of nonpoint source water pollution
in the three lakes region. See §I.B., supra . A suggested
ordinance for the regulation of new camping areas is pro-
posed herein. Because of the nature of campgrounds, tLe
authority for the regulation thereof is probably more
limited than for other types of development. Such can be
found, however, at §30-28-111, 113; §31-23-301, 302, 303,
304; and §29-20-lOu., C.R.S. 1973. In addition, it may be
possible to regulate campgrounds as subdivisions in counties,
see §30-28-101(10), C.R.S. 1973, and in municipalities.
§31-23-212, 213, 214, C.R.S. 1973. Generally applicable
erosion, drainage, and sedimentation control regulations
would also apply to campgrounds. Similar regulations should
be considered by federal agencies within the region, which
sponsor such recreational uses.
1. Scop e .
Campground and recreational area regulations establish
standards governing the provision of utilities and other
facilities within such areas. They should also regulate the
use of such areas in order to insure that they are safe,
sanitary, and fit for human use. In general, such regula-
tions are normally applied in camping areas, recreational
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areas, such as picnic grounds, and in transient mobile home
parks. The latter are defined as parcels of land designed
to accommodate two or more mobile homes and/or camping units
for short-term dwelling purposes (e.g., ninety days or
less), whether or not any charge for services is made.
2. Nature of the Review .
A permit must be obtained prior to construction or
operation of any transient mobile home park or campground.
Permit applications must be accompanied by detailed site
plans, including plans and specifications for water supply,
sewage disposal, construction of buildings and improvements,
landscaping, screening, roads and sidewalks, grading,
drainage, and erosion control plans.
3. Exemptions .
The regulations would not apply to mobile home parks or
to individual mobile homes located on individual lots, which
would be covered by separate regulations.
4. Performance Standards .
a. State Health Department Re _ gulations .
The Colorado Department of Health adopted Standards and
Regulations for Campgrounds and Recreation Areas on Febru-
ary 19, 1975. The state health regulations set minimum
standards for various types of recreational sites relating
to the following matters:
1. Roads, parking, walks;
2. Camp sites, densities, and spacing;
3. Water supply;
4. Sewage collection and plumbing;
5. Refuse disposal;
6. Fire, cooking, and eating facilities;
7. Sanitary facilities;
8. Service buildings;
9. Privies;
10. Safety;
11. Operational responsibility.
Minimum standards for drainage, erosion control, sedimenta-
tion, and other nonpoint water pollution sources should also
be included.
b. General Zoning Requirements .
The Town of Fleming, Colorado, has adopted specific
zoning requirements regarding transient mobile home parks
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and campgrounds. The regulations set specific standards
concerning the following matters:
1. Site selection;
2. Density;
3. Setbacks;
4. Access and roadways;
5. Lighting;
6. Open space and recreational areas;
7. Service buildings;
8. Fire protection;
9. Maximum term of residency;
10. Utilities:
a. Water;
b. Sewage;
c. Electricity;
d. Refuse disposal;
11. Registration of occupants;
12. Licensing of operators.
Once again, standards relating to nonpoint water pollution
sources should be added.
c. Review Standards .
Review standards prohibiting the construction or
development of any campground which will create point or
nonpoint sources of water pollution should be adopted.
M. Litter Control Regulations .
The engineering consultant has identified “urbaniza-
tion” as a source of rtonpoint water pollutants and suggested
improved urban cleanliness as a technique by which to
ameliorate that source. See §I.B., supra . One technique by
which urban cleanliness rnayThe improved [ s through a string-
ent litter regulation prohibiting the depositing of litter
or other solid waste except at designated disposal sites.
It would appear that counties and municipalities may adopt
litter control regulations. Counties may prohibit the
dumping of solid waste, as defined at §30-20-101(6), C.R.S.
1973, at any but designated sites. §30-20-101 et seq .
C.R.S. 1973; see §30-20-106, C.R.S. 1973. County health
departments and boards of health have additional powers
which appear to permit the adoption of litter control regu-
lations. §25-1-506, 507, C.R.S. 1973. Municipalities are
generally authorized to adopt necessary health-related
ordinances. §3l-15-40l(l)(a), (b), (c), C.R.S. 1973. Home
rule may also provide additional power therefor. Munici-
palities may be able to benefit from the provisions of §31-
15-710, C.R.S. 1973, which provide certain limited authority
to prevent water pollution. Finally, it may also be arguable
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that H.B. 1034, at §29-20-104, C.R.S. 1973, provides auth-
ority for both counties and municipalities to adopt litter
control regulations. The State of South Dakota has adopted
a litter control statute which provides a helpful model for
this proposed regulation. See §34-16C-10l et seq., S.D.C.L.
1967.
1. Scope .
The first step in controlling litter is to define that
term. Such should be defined broadly to include all forms
of refuse, garbage, and waste materials derived from any
source. Municipalities, and possibly counties, may be able
to use existing enabling legislation to regulate the depos-
iting of nonsolid waste, as well as solid waste, and to
include such within the definition of litter. Such could
prove helpful in controlling oil and grease from boats and
other nonsolid waste.
2. General Regulatory Approach .
Using the South Dakota statute as a basis, the follow-
ing restrictions on the depositing of litter are suggested
1. A requirement that public or quasi-public facil-
ities provide waste receptacles.
2. A prohibition against the dumping of litter from
any car, boat, or other vehicle.
3. A prohibition against the dumping of litter except
at designated sites.
4. A prohibition against the accurimulation of litter
in such a way that it may be carried by any
natural forces from the place of deposit.
Penalties for the unlawful depositing of litter must be
provided. Both civil and crimir a1 sanctions should be
considered.
3. Exemptions .
The Colorado Solid Waste Disposal Act, which is cited
above as authority for county litter control, exempts the
dumping of one’s own solid waste on one’s own property, so
long as such constitutes no public nuisance and complies
with Colorado Health Department regulations. §30-28-106,
C.R.S. 1973.
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N. Regulation of Sources from
Marinas and Boats .
The engineering consultant has identified washing of
boats, docks, and marina areas, as well as operation cf
boats, as potential contributors of oil, grease, untreated
sewage, and other pollutants to the lakes. §I.B., supra .
While some control over runoff from washing of docks and
other marina areas at least can be obtained through local
drainage regulations, it would seem that the above-named
sources would be better subject to control by state agen-
cies.
Pollutant sources contributed from the operation of
boats are point sources subject to regulation by the Water
Pollution Control Division of the State Health Department.
Section 25-8-103(10), C.R.S. 1973, defines “point source”
as:
any discernible, confined and discrete con-
veyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other
floating craft , from which pollutants are or may
be discharged.” (emphasis supplied)
The discharge of any “point source” must be made in
accordance with a discharge permit obtained from the Divis-
ion. Discharges of pollutants in the absence of a permit
are unlawful and may be prevented by the Division. That the
Division intends to control sources of pollutants from boats
is indicated by the fact that it has adopted the above
definition in its Combined Regulations for Agricultural and
Non-Agricultural Activit is . It might also be noted That
the Colorado Departmenc of Game, Fish and Parks also has
adopted Land and ‘Water Use Regulations which prohibit the
operation of boats having unsealed sewage systems or the
discharge of wastes and garbage into state waters. These
regulations, effective on January 1, 1977, are probably of
little use to the instant problem, however, since they are
applied only on waters within the Department’s jurisdiction.
None of the three lakes is included within the Department’s
control.
Sources emanating from the washing of docks or boats
are also probably best subject to control by the Division.
The definition of “point source” stated above is broad
enough to include pollutant sources arising from those
activities. Minor regulation, as noted above, might also be
accomplished under County or Grand Lake drainage regula-
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tions. Federal agencies might also perform certain similar
functions at boat launching areas within their jurisdiction.
0. Regulation of Existing Development .
While recognizing the need for zoning, subdivision, and
other land use regulations to control the point and nonpoint
water quality impacts of proposed development, Grand County
officials have expressed concern about their ability to
control water quality impacts of existing development and of
approved and undeveloped or partially developed subdivisions.
This concern was expressed by the County Commissioners and
by the County Attorney at the consultant’s meeting with them
on November 1, 1976, and was also expressed by County Manager
Stan Broome in a letter of November 24, 1976. Specifically,
while the County officials feel that they are empowered to
regulate new construction, urbanization, mining, or other
sources of water pollution, they are uncertain whether they
can regulate those same sources where they already exist as
a result of prior development or where they may result from
development of lots in subdivisions approved under prior,
less restrictive County regulations which were not designed
to assure that development would not create sources of water
pollution. The consultant has investigated this problem and
has concluded that certain control over such sources can be
obtained through use of the following techniques:
1. Building permit regulation.
2. Regulation of nonconforming uses.
3. Nuisance regulation.
4. Adoption of certain H.B. 1041 regulations.
5. Adoption of H.B. 1034 regulations.
Each of these techniques will be discussed below, and poten-
tial problems associated with their use will be identified.
Prior to discussing the use of the above techniques, a
few comments should be made. The regulation of water
quality impacts created by existing development or develop-
merit approved under prior versions of the subdivision regula-
tions or County platting regulations is largely untested in
Colorado. While the consultant has offered as suggested
techniques only those which it has concluded are lawful
under existing Colorado statutes and case law, the novelty
of the suggested techniques mandates that any specific
proposed regulation based upon these su gestions be care-
fully reviewed to assure that it is in fact valid. To
assure that a particular regulation is valid, the County
must devise regulations which:
1. Have es their purpose the regulation of an iden-
tifiable water quality hazard to the public
health, safety, or welfare, and which
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2. Serve as a reasonable means of regulating a land
use in order to aid in controlling that problem.
If the County can show that the purpose of its regulation of
existing or approved development does attempt to control
such a hazard and that the hazard can be ameliorated by
reasonable regulation, its regulation, subject to certain
limits, should be upheld despite the novelty of a particular
approach.
It should also be noted that implicit in the suggestion
of techniques for regulating development approved under
prior subdivision regulations or platting regulations is the
assumption that such proposed developments cannot now be
subjected to existing subdivision regulations. While this
appears to be an accurate assumption, there may be at least
one method for obtaining subdivision review at this date.
See §P.5., infra .
Finally, it should be noted that, since the question
under discussion was asked only by officials of Grand
County, the consultant has limited its review of the issue
to determine what authority Grand County may have to control
the above-described problems. Enabling legislation for the
other entities involved, except as it may overlap that for
counties, is not discussed.
1. Regulation Throu h Use
of Building Permits .
It appears that reasonable regulation of development in
an approved but undeveloped or partially developed sub-
division could be accomplished through the use of a building
permit regulatory system. Under such a system, no building
permit to construct in an approved subdivision would be
granted unless an applicant therefor could demonstrate that
such construction would not degrade the water quality of the
lakes or tributaries thereto. The regulations could require
the applicant to submit certain materials, including plans
and other information, sufficient to show that all drainage,
erosion control, grading, sedimentation control, landscap-
ing, and sewage disposal problems would be successfully con-
trolled. No building permit would be issued if the proposed
c- nstruction would contribute point or nonpoint sources of
water pollution to the lakes. Standards for the submission
of such information and the review thereof would be included
in the regulation. It would appear that such a regulatory
scheme is lawful under both the zoning and building code
enabling legislation.
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a. Regulation Through Zoning .
(1) Enabling Legislation .
Under §30-28-114, C.R.S. 1973:
“The board of county commissioners may provide for
the enforcement of the zoning regulations by means
of the withholding of building permits
After the establishment of such position and the
filing of the same, it shall be unlawful to erect,
construct, reconstruct, alter, or change the use
of any building or other structure within the
unincorporated territory covered by such zoning
regulations without obtaining a building permit
from such county building inspector. [ The] building
inspector shall not issue any permit unless the
plans for the proposed erection, construction,
reconstruction, alteration, or use fully conform
to all zoning regulations then in effect. ” (emphasis
supplied)
This section permits the enforcement of currently effective
zoning regulations by means of a permit system. Permits for
the erection, construction, alteration, or change of use of
any building or structure within the County must be obtained
before any such activity is undertaken. On this authority,
a county could include in its zoning regulations certain
water quality-related criteria which would be required to be
met prior to the issuance of any building permit. These
criteria could be included in the zoning regulation itself,
or the zoning regulation could require that standards and
restrictions in other existing regulations be met prior to
issuance of a building permit. (For example, the zoning
regulation might require that a grading permit be obtained
under an existing grading regulation prior to issuance of
any building permit.) The building inspector, as the official
in charge of the building permit system, §30-28-114, would
grant or deny such permits after taking steps to insure that
all zoning requirements were met. The regulations would, of
course, be applied on a lot-by-lot basis, since they would
be designed to control lot development in existing sub-
divisions.
(2) Potential Difficulties .
(a) Definition of Terms
“ Buildings” and “Structures” .
There do exist certain difficulties with the foregoing
approach. First, §30-28-114 permits regulation of “build-
ings or structures.” The zoning enabling legislation fails
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to define these terms. If they are intended to include only
such construction as has four walls and a roof, regulation
of numerous land-disturbing activities, such as construction
of parking areas, driveways, fences, and similar improve-
ments might be excluded from regulation. This would inter-
fere with the effectiveness of such regulations. It is
probably likely, however, that those terms should not be so
narrowly defined. As stated in §30-28-111, C.R.S. 1973,
zoning regulations may regulate “. . . the location of
buildings and structures for trade, industry, residence,
recreation, public activities, or other purposes , and the
uses of land for trade, industry, recreation or other
purposes. ” (emphasis supplied) This broad a iEhority to
control construction and land use provides a wide scope of
regulatory power to counties which arguably would be improp-
erly limited by adopting a narrow definition of the terms
“buildings or structures.” Indeed, our Supreme Court,
interpreting a different statute, has approved, in dictum ,
the holding of a Texas court stating that “. . . the term
‘building’ [ embraces) all useful structures erected by man
on land. Based on its approval of the Texas case, the
court went on to find that a fence was a building. Parrish
v. Hainlen , 124 Cob. 229, 236 P.2d 115 (1951). This broad
interpretation is also consistent with the broad authority
to regulate land use found in H.B. 1034, §29-20-104, C.R.S.
1973.
Alternatively, it can be argued that the terms “build-
ing” and “structure” should be narrowly interpreted. The
building code enabling legislation for counties, at §30-28-
201, C.R.S. 1973, defines the term “structure” to mean a
combination of roof and supporting walls. If that narrow
approach is to be applied equally to zoning regulations,
then their regulatory scope would be correspondingly limited.
Since this definition does not appear in the zoning legis-
lation, however, it would seem improper to extend it thereto.
In any case, neither the zoning nor building code enabling
legislation so limits the term “building” This may be an
indication that it may be broadly defined by counties acting
under that legislation.
Even if the terms “buildings” and “structures” are
taken to be limited, it can still be argued that the permit
for erection thereof may include regulations pertaining to
accessory construction related to the erection of a building
or structure, such as a parking area. Even under a narrow
definition, the County could regulate erection of such areas
or other construction under this interpretation. This
would, however, exclude regulation of independent “buildings”
or “structures” not associated with home or other construc-
tion.
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It would seem that counties in their zoning regulations
can adopt broad definitions of the terms “buildings or
structures,” permitting them to engage in regulation of all
land-disturbing activities in approved subdivisions in which
buildings or structures are erected, It should be noted
that Grand County has not defined either of these terms in
its current zoning regulations.
(b) Impact of Prior Subdivision
or Plat Approval .
A more significant difficulty revolves around the
interrelationship of prior subdivision approval and future
amendments of zoning regulations to control construction in
those approved developments. One Colorado decision, relying
upon a fact situation extremely unfavorable to the regulating
authority, has held that a downzoning of land from a one-
half acre to a two-acre density subsequent to approval and
substantial development of a subdivision for one-half acre
home sites, was unlawful. City of Cherry Hills Village v.
Trans-Robles , ___ Cob. ___, 5O P.2d 797 (1973). The
court found that the rezoning left no reasonable use for the
land and thus that it constituted an unlawful taking. Id.
If the County were to amend its zoning resolution and con-
dition the grant of a building permit upon a showing that
certain erosion control, sedimentation control, landscaping,
grading, and other measures to mitigate point and nonpoint
sources have been or will be taken by the permit authority,
it might be argued that such an amendment is unlawful under
the Trans-Robles rationale due to prior subdivision approval.
This argument, however, would likely fail.
It must be remembered that Trans-Robles was decided
upon facts very unfavorable to the City of Cherry Hills
Village. Indeed, the subdivision, absent housing construc-
tion, had been virtually completed prior to the amendment.
Sewers, water systems, roads, and utilities had been sub-
stantially, if not fully, installed. In addition, the
amendment did not seek to establish regulations on a lot-by-
lot basis, as would likely be done in any new county regu-
lation, but sought to change the entire nature of the sub-
division by amending lot size requirements in a way such
that they could not reasonably be met. On such facts, the
rezoning was struck down. Similar cases on less extreme
facts support the concept of rezoning subsequent to sub-
division approval. In State ex rel. Mar-Well, Inc . v.
Dodg , 177 N.E.2d 515 (Ohio CE App. 1960), a builder sought
a permit to construct a house on a platted 100-foot front
lot in a zone in which the zoning regulations were amended
subsequent to subdivision approval to require a front yard
of 150 feet. The reason for the rezoning, interestingly,
was to require larger lot sizes due to the discovery that
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the lot was in an area with poor leaching qualities for
individual sewage disposal sysLems. The permit was refused
and a lawsuit ensued. The court upheld the denial f the
permit stating:
“The legislation changing the zoning requirements
of Twinsburg It wnship was in no sense retroactive
legislation. There was no use to which the lands
were being at the time the zoning resolution
was changed. Mar—Well Estates was an allotment
on paper, without houses or other use. Of course,
the change of the zoning requirements prevented
the allotters from using the property in the manner
contemplated by them, but all zoning laws are based
upon the restrictive use of land.” (emphasis sup-
plied)
The decision in Grayson v. City of Birmingham , 173
So.2c1 67 (Ala. 1967), is also supportive. In that case a
plat showing residential and commercial uses, each of which
was permitted by existing zoning, was approved by the city
planning commission and recorded. Subsequently, the area
encompassed by the plat was rezoned to prohibit commercial
uses. Prior to the rezoning, over $3,500 worth of lot
improvements had been made by the developers. The rezoning
was upheld in the face of the developer’s challenge. The
court stated that, while rights due to subdivision approval
and subsequent expense might vest and thus prohibit the
rezoning, this was not the case in Grayson . The court said:
“ Here we are dealing with naked lots, which are
without structural initiation thereon , no building
permit granted , and the owners admittedly have
no intention of building on them. The improvements
were made only to facilitate their sale and use
for business purposes.” (emphasis supplied)
See also , Anderson, American Law of Zoning , §19.23; Virginia
Cö istruction Corp . v. Fairman , 18TA.2d 1 (N.J. l9623T State
v. Bayside oard of Trustees , 108 N.W.2d 288 (Wis. 1961).
ut see KryschnsklTh.T. Shenkin , 148 A.2d 58 (N.J. 1959);
Lengel v. Pirnie , 128 N.Y.ST d 490 (Sup.Ct. 1954).
The foregoing cases appear to indicate the rezoning of
an approved and partially developed subdivision is lawful
unless such rezoning renders the land upon which the sub-
division is located unusable for any reasonable purpose, as
was the case in Trans-Robles . While amending the zoning
regulations to include lot-by-lot requirements for the pro-
tection of water quality would undeniably stiffen the
zoning regulations, such an amendment would be very unlikely
to result in a taking of all reasonable uses of the lot,
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as might a change in minimum lot size - - though even that
change is upheld when reasonable. As a result, an amendment
of the county zoning reguldtions stiffening the requirements
for the grant of a building permit would seem valid, although
the validity of its application to a particular lot or a
particular approved subdivision or platted area would depend
upon the facts surrounding the application of the regula-
tions thereto.
This conclusion conforms to general Colorado law
regarding zoning amendments. While landowners and the
public have the right to rely upon existing zoning in Colo-
rado, Roosevelt v. City of Englewood , 170 Cob. 576, 492
P.2d 65 (1972), that rig E does not prohibit a zoning amend-
ment when circumstances in an area have changed and when
such is necessary to promote the health, safety, and welfare
of the public. Holly Development, Inc . v. Board , 140 Cob.
95, 342 P.2d 1032 (1959). That the improvement and pro-
tection of water quality are within the public interest is
illustrated by the numerous statutes in Colorado which seek
to achieve those goals, including the Three Lakes Water and
Sanitation District Act itself. Indeed, that a rezoning
based largely upon water quality considerations is in the
public interest has recently been confirmed by the highest
court of the State of Maryland. Norbeck Vii. Joint Venture
v. Montgomery County , 254 A.2d 700 (Nd. 1969). The con-
sultant would, therefore, conclude that amendment of the
zoning regulations to include reasonable water quality-
related conditions for building permit regulation is valid
and supported by existing decisions.
b. Regulation Under Building Code .
(1) Enabling Legislation .
The Colorado building code enabling legislation for
counties provides at §30-28-201, C.R.S. 1973:
After the adoption of such building code it
shall be unlawful to erect, construct, reconstruct,
alter, or remodel any structurc, dwelling, or
building in the designated area . . . without first
obtaining a building permit from such county
building Inspector. The county building inspector
shall not issue any permit unless the plans for
such proposed erection, construction, reconstruc-
tion, or remodeling fully conform to the regulations
and restrictions in the building code.”
The same section permits the charging of fees for such
permits.
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• Like the zoning enabling legislation discussed above,
this section would appear to authorize the inclusion of
certain water quality-related criteria in its building code,
which criteria would have to be met by applicants for
building permits under the code. Just as in the case of
zoning regulations, regulations establishing erosion and
sedimentation control requirements, landscaping standards,
grading standards, and other similar requirements could be
included in the code, or compliance with other existing
regulations pertaining to those subjects could be required
prior to issuance of any building permit required by the
code. Again, the building inspector would administer the
system.
(2) Potential Difficulties .
Also like the use of the zoning regulations, use of the
building code to accomplish this regulation may present
difficulties.
(a) Disadvantages of
Building Code Regulation .
It should be noted that in §II.B.6., suyra , the con-
sultant noted that regulations such as the kind suggested
here are perhaps more proper for inclusion in a subdivision
regulation. The consultant does not mean to retract that
statement by inclusion of this section. The difficulty is,
of course, that regulations seeking to control land use
impacts of development in already pproved subdivisions are
under discussion here. In §II.B.6., we were discussi
under discussion here. In §II.B.6., the consultant was
discussing regulations applicable to proposed subdivisions.
While erosion, grading, and other regulations may be more
appropriate in subdivision regulations, they have no use-
fulness as part of such when it is development in approved
subdivisions that is sought to be regulated. This section
attempts to find methods of regulation for areas beyond
subdivision control.
(b) Other Difficulties .
The initial difficulty surrounding use of the building
code to regulate construction in approved subdivisions is
definitional. The building code enabling legislation enables
counties to regulate the construction and alteration of
dwellings, buildings, and structures. §30-28-201, C.R.S.
1973. That section defines only the term “structure.” It
is defined to mean a combination of roof and supporting
walls and columns. The terms “dwelling” and “building’ are
not defined. Whether they, and particularly the term “build-
ing,” may be defined so broadly as to include the many types
of construction which do not consist of a roof and four
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walls or which are not inhabitable is therefore an important
question. Based upon the consultant’s analysis of this
concern with regard to the zoning enabling legislation, see
§1.a., supra , it would seem that there at least does exis€
authority to define the term “building’ so broadly as to
include improvements si ch as fences, parking areas, and
other noninhabitable structures.
It should he noted that the UBC, 1973, adopted by Grand
County as its building code, adopts the following, defini-
tions of the terms “building” and “structure”:
1. “Building” is any structure used or intended for
supporting or sheltering any use or occupancy.
2. “Structure” is that which is built or constructed,
an edifice or building of any kind, or any piece
of work artificially built up or composed of parts
joined together in some definite manner.
The definition of “structure” is clearly broad enough to
permit code regulation of all types of construction activity
involving creation of a thing “artificially built up.”
Broad regulation in approved subdivisions is therefore
possible. Whether that definition is within the bounds of
the enabling legislation is less certain, since §30-28-201
does define the term “structure” far more narrowly. Perhaps
that definition is subject to expansion under the terms of
H.B. 1034, §29-20-104, C.R.S. 1973. If not, broad regula-
tory scope can likely be achieved by expanding the defini-
tion of the term “building,” which, as noted, is not re-
stricted by §30-28-201.
A second problem with use of the building code as a
device to regulate development in approved subdivisions is
that building codes have traditionally been envisioned as a
means for regulating construction of structural improvements
only in order to insure their safety. That regulation of
other land-disturbing activities associated with such con-
struction, which activities may create water quality hazards
but not hazards to building safety, might be recognized as a
valid goal of a building code regulation may be question-
able. Because such activities are an inherent part of the
construction of homes, offices, parking areas, fences, or
any other form of improvement, it is certainly arguable that
a building code, by regulating construction or alteration of
dwellings, buildings, and structures may be used to regulate
those activities. The building code enabling legislation
for counties is sufficiently broad to encompass such regula-
tion. The broad language of H.B. 1034 also supports this
conclusion by enabling local governments to expand building
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code regulation beyond its “traditional” scope. §29-20-104,
C.R.S. 1973.
Finally, it was concluded in §l.a., supra , that amend-
ment of the zoning re .ulation to include or require com-
pliance with grading, drainage, erosion, and similar standards
was probably not prohibited by prior subdivision approval,
at least when prior subdivision approval was not based upon
such requirements. The same conclusion seems accurate with
respect to building code regulation. It must always be
remembered, however, that if such regulations deprive a
landowner of any reasonable use of his land, they will be
held to be unconstitutional. The kind of lot-by-lot require-
rnents envisioned herein would not seem to constitute that
degree of regulation.
2. Regulation of Nonconforming Uses .
Use of the County’s zoning regulations to control the
expansion or existence of nonconforming uses may provide a
technique by which to regulate existing sources of nonpoint
water pollution. Counties have fairly substantial authority
to adopt nonconforming use regulations.
a. County Authority Over
Nonconforming Uses .
Zoning enabling legislation for counties at §30-28-120,
C.R.S. 1973, contains an express authorization permitting
counties to regulate nonconforming uses:
“The lawful use of a building or structure or the
lawful use of any land, as existing and lawful at
the time of the adoption of a zoning resolution or,
in the case of an amendment of a resolution, at the
time of such amendment, may be continued, although
such use does not conform with the provisions of
such resolution or amendment, and such use may be
extended throughout the same building if no struc-
tural alteration of such building is proposed or
made for the purpose of such extension. The board
of county commissioners may provide in any zoning
resolution for the restoration, reconstruction,
extension, or substitution of nonconforming uses
upon such terms and conditions as may be set forth
in the zoning resolution. The board of county com-
missioners, in any zoning resolution, may provide
for the termination of nonconforming uses, either
by specifying the period in which nonconforming uses
shall be required to cease or by providing a formula
whereby the compulsory termination of a nonconforming
use may be so fixed as to allow for the recovery or
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amortization of the investment in the non cm forc —
ance.”
While this statute permits the regulation, and eventual
termination, of nonconforming uses, any such regulation must
protect the owner’s investment in the use as of the time
that a zoning resolution or amendment thereto is enacted.
Service Oil Ce. V. Rhodus , 179 Cob. 335, 500 P.2d 807
(1972). Beyond that fundamental protection, a county is
free to regulate a nonconforming use and to bring it into
conformity as speedily as is compatible with justice.
Wassinger v. Miller . 154 Cob. 61, 388 P.2d 250 (1964). To
do so, a county may, in accordance with the statute:
1. Provide for the restoration, reconstruction,
extension, or substitution of nonconforming uses
upon terms and conditions ‘et forth in the coning
regulations.
2. Terminate nonconforming uses. Termination follow-
ing abandonment of a use, Bezedes v. Board , 116
Cob. 123, 178 P.2d 950 (1947), de tructi n of a
use, Service Oil Co. v. Rhodus , supra, and dis-
continuance ora use, Fis hman v. Tupps , 127 Cob.
463, 257 P.2d 579 (1953), have each been upheld
in Colorado. Termination after a reasonable
amortization period or after a reasonable period
of time is, of course, expressly within the terms
of §30-28-120.
The foregoing may provide a means by which to regulate
existing uses which create water quality hazards to the
lakes.
b. Proposed Regulatory Scheme .
If the county is willing to perform a comprehensive
amendment of its zoning regulations, as suggested in §11.13.,
supra , to require that no use be permitted, either as of
right or by special use permit, unless it can be demon-
strated that such use will contribute or cause the con-
tribution of no point or nonpoint sources of water pollution
in the three lakes, then it can be stated that any use so
doing fails to conform to the existing zoning requirerients.
Such nonconforming uses could then be regulated pursuant to
§30-28-120 and applicable case law presented above. Non-
conforming uses could b’e terminated, within the restrictions
of that section and the constitution, where no other remedy
would prevent continued contribution of pollutant sources.
In addition, it appears that §30-28-120 permits the County
to adopt less harsh methods of regulating such uses when
termination may be undesirable or unnecessary. For example,
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authority of the County to provide for reconstruction of
nonconforming uses under terms and conditions would seem to
permit the County to require the modernization or restruc-
turing of a use so that it would be in conformity with
existing regulations. Under that authority, the owner of a
contributing parking area might be required to install
proper drainage facilities to alleviate sources of water
pollution. Once again, all such regulation would be re-
quired to protect an owner’s investment in his property as
existed on the date of the amendment.
While it appears that nonconforming use regulation as a
means of preventing degradation of the lakes’ water quality
is lawful, it should be noted that such a use of that tech-
nique would be novel. Traditionally, it has been the use
itself, for example a gasoline station in a residential zone
or an industrial use in an agricultural zone, rather than
the effect of the use, which has created nonconformity. The
regulations proposed herein define nonconformity on the
basis of the result of a use. Thus, while a gasoline sta-
tion might be lawful in a commercial zone if it creates no
water quality hazard, it becomes nonconfor Tng if and when
it does. Because this approach is a novel one, any proposed
County regulation of such a nonconforming use should be
carefully reviewed to assure that it is valid. It would
seem that such regulation is entirely lawful in concept as
a form of impact regulation. See §30-28-111, 113, 120,
C.R.S. 1973; and see especially §29-20-104, C.R.S. 1973.
3. Nuisance and Health Regulations .
If authority to adopt such regulations exists on behalf
of counties, nuisance regulation may provide an effective
means for controlling sources of water pollution from
existing development. To a lesser extent, it might also aid
in controlling sources from ongoing development or develop-
ment in approved areas. County health regulations may be
similarly useful.
a. County Authority .
It is questionable whether a county in Colorado may
exercise nuisance authority. Several lines of authority may
provide it.
(1) Case Law .
Generally a county, as a political subdivision of the
state, may exercise only those powers which have been
expressly delegated to it, which may be implied therefrom,
or which are reasonably necessary to the proper exercise of
its express authority. Farnik V. Board , 139 Cob. 481, 341
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P.2d 467 (1959). This general rule ai c would seem to
include the specific authority to regulate nuisances. See
Northwest Fertilizin Co. v. Village , 124 Sup.Ct.. l0’36 —
(1878); An .otation 6 702. 6 A.J.2d Municipal Corp.,
Counties. etc. , §443. A review of the general enabling
legislation for counties appears to indicate that Colorado
counties were not intended to have general police power
authority to abate nuisances. See §30-1-101 et seq . , C.R.S.
1973. Despite the apparent ahs nce of enabling legislation,
it has been held by the Colorado Supreme Court that counties
have the authority, throu7,h their sheriffs, summarily, and
without resort to legal proceedings, to act to abate nuis-
ances. Gaskins v. People , 84 Cob. 582, 272 P. 662 (1928).
It would seem €hat the Caskins decision permits nuisance
abatement by a county even in the absence of statutory
authority to do so, perhaps on the basis of some common-law
authority, though the theory of the case is uncertain. Al-
though this would make Colorado the exception rather than
the rule, there does exist recent authority in another
jurisdiction supporting this “exception.” See Cox v. New
Castle County , 265 A.2d 26 (Del. 1970), in which itwas held
that a county, as a legally-created public authority, may
sue for relief from a public nuisance.
Even if the Gaskins case creates an exception to the
general rule, it may be a limited one. Gaskins dealt with
summary abatement of a public nuisance. it has been held in
Ccloradc that only a nuisance per se, that is, a nuisance
which at all times’ and under all circumstances is a nuisance,
Echave V. City of Grand Junction , 118 Cob. 165, 193 P.2d
277 g9 8), mayTe sunlnlariiy abated. Denv r v. Mullen,
7 Cob. 345, 3 P. 693 (1864); Echave v. Oi f rand
Junction, supra . All other riuisances that is, those which
arise only due to their circumstances. r ust be abated by
judicial process. This distinction is more than academic,
since r.tost contributors of wdter pollutants which the County
might seek to regulate as nuisances will likely not be
nuisances per Se. It may be that Gaskins permits only
summary abatement of nuisances. per Se. All others would he
abated by judicial recourse through the district attorney.
It may, of course, be ar2ued, and the language of Gaskins
provides some support for this proposition, that the auth-
crity to summarily abate nuisances certainly includes the
authority to abate them by judicial recourse, as was per-
mitted in the Cox decision. An Oklahoma case has held,
however, that a grant of power to summarily abate nuisances
does not confer upon a municipality the authority to abate
them by judicial process. Billings hotel Co. v. City , 154
P. 557 (Okia. 1916). Whether that rule wo Td govern in
Colorado is uncertain. That case did, however, rely solely
upon statutorily-delegated authority, which Gaskins did not.
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If existing case law permits a county to abate a
nuisance, what may it abate? The cases define “public
nuisance t ’ ad’: “the doing of or failure to do something that
injuriously affects the safety, health, or morals of the
public, or works some substantial annoyance, inconvenience,
or injury to the public. 39 Am.Jur., 285; 46 C.J. 646;
I Wood on Nuisances, 3d Ed., 34;” Echave, supra . This
definition seems broad enough to regulate many discharges or
other sources, point or nonpoint, which degrade the water
quality of the lakes. Indeed, water pollution has been held
to be a nuisance. Illinois v. City of Milwaukee , 406 U.S.
91, 92 S.Ct. 1385 (1972). As a resuTE, if a county is
empowered to abate nuisances, summarily, judicially, or
both, it seems authorized to abate activities which create
sources of water pollution in the lakes. At the risk of
being redundant, it should be reiterated that the above rule
may be able to be invoked by counties only when a nuisance
is a nuisance per Se, as defined above.
While the foregoing may provide the County with auth-
ority to abate nuisances, it is probably unlikely that it
provides the County with authority to adopt a nuisance
regulation. To do such would almost certainly seem to
require clear enabling legislation. The foregoing does not
constitute such, and probably permits nuisance abatement on
a case-by-case basis when an activity falls within the above
definitions. Authority to adopt an actual nuisance regula-
tion must be found elsewhere.
(2) Enabling Legislation .
(a) County Health Statutes .
County health departments are authorized to abate
nuisances “when necessary for the purpose of eliminating
sources of epidemic and communicable diseases affecting the
public health.” §25-1-506(l)(e), C.R.S. 1973. This appears
to be the only general nuisance power provided for county
health departments. County health departments are also
enabled to carry out health programs necessary or desirable
for the public health, §25-1-506(1)(h), C.R.S. 1973, and to
initiate sanitary and health investigations. §25-l-506(1)(j),
C.R.S. 1973. Finally, health departments may administer and
enforce laws, rules, and regulations pertaining to water
quality control. §25-l-506(1)(a), C.R.S. 1973. Grand
County has no health departments only a board of health and
a health officer.
County boards of health possess extensive authority to
abate nuisances and to exercise other health-related auth-
ority. Section 25-1-611, C.R.S. 1973, states:
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“The board of health shall make such regulations
respecting nuisances, sources of filth, and causes
of sickness within its respective limits and’ on
board any car or train of cars as it shall judge
necessary for the public health and safety. Any
person who violates any such regulations, upon con-
viction thereof, shall be punished by a fine of
not more than one hundred dollars.”
Section 25-1-613 states:
“The board of health shall examine all nuisances,
sources of filth, and causes of sickness, which,
in its opinion, may be injurious to the health
of the inhabitants, within its town, city, or
county or in any car or train of cars within
said town, city, or county, and ft shall destroy,
remove, or prevent the same as the case may
require.”
The board may also regulate privies and water closets, §25-
1-614, C.R.S. 1973 ( see also §25-10-101 et seq., C.R.S.
1973, and County Individual Sewage Disposal Rigulations),
and unhealthy cellars, vaults, lots, sewers, drains, places,
or premises. §25-1-615, C.R.S. 1973. The board may order
nuisances on private property removed, §25-1-617, or, if the
order is ignored, remove the nuisance itself, §25-1-618, at
the expense of the person creating the nuisance. §25-1-616.
One who is convicted of maintaining a nuisance injurious to
the public health may be ordered by a court to abate or
remove the same. §25-1-619.
The foregoing permits local boards of health to adopt
regulations respecting nuisances, sources of filth, and
causes of sickness, and to remove them when they occur.
Clearly, summary abatement (limited to nuisances per Se, see
Denver v. Mullen, supra ) is contemplated, and it seems that
abatement by judicial process is also available to a county
board of health under §25-1-619, thereby permitting abate-
ment of nuisances which may not be nuisances per Se. This
authority is . uite broad. It would seem to permit the
adoption of regulations or a program of regulation to abate
sources of water pollution to the lakes by summary or
judicial action. Admittedly, adoption of such a program
night be a novel idea, hut it seems to be within the intent
of the enabling legislation.
In addition to its nuisance authority, a board of
health is empowered:
“1. To determine general policies to be followed
by the public health officer in administering and
enforcing the public health laws, the orders,
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rules, and regulations of the board, and the orders,
rules, regulations, and standards of the state
board of health;
“2. To issue such orders and to adopt such rules
and tegulatIons, not inconsistent with the public
health laws of this state nor with the orders,
rules, and regulations of the state board of health,
as the board may deem necessary for the proper
exercise of the powers and duties vested in or
imposed upon a department or board of health by
[ the health enabling legislation]. t ’
A county health officer may:
“1. Administer and enforce the public health laws
of the state of Colorado; the orders, rules, regula-
tions, and standards of the state board of health;
and the orders, rules, and regulations of the county
or district board of health;
“2. Exercise all powers and dutios conferred and
imposed upon departments not expressly delegated to
county or district boards of health by the pro-
visions of [ the county health enabling legislation].”
Two types of authority are discussed above. The first
is authority to adopt nuisance regulations. It appears that
health departments, to a limited extent, and health boards
are authorized to regulate and abate nuisances within a
county. It has been noted that water pollution has been
held to be a nuisance in the past. While county regulation
might comprehend more sophisticated regulation of novel
sources of water contamination than those found subject to
abatement in past cases, it seems that the enabling legis-
lation for boards of health, and to a lesser degree of
health departments, authorizes a regulatory program to
control water pollution as a nuisance so long as it can be
shown that water pollution injures the public health.
Local health departments are also authorized to adopt
policies, rules, and regulations necessary to protect the
public health. These statutes may also authorize the adop—
tion of regulatory programs designed to control the impacts
of water pollution on the public health. Because effective
land use regulation can also accomplish this objective, it
may be that such programs are not as necessary as one
designed to regulate nuisances.
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(b) Other Legislation .
(i) Solid Waste Disposal .
Counties are authorized to regulate the improper
dumping of solid waste. §30-20-101 et seq., C.R.S. 1973.
Solid waste is defined to mean garbage, refuse, sewage,
sludge, and other discarded materials, excluding agricul-
tural waste. All dumping of solid waste, except one’s own
waste on his own property, must be done at an authorized
solid waste disposal site. §30-20-106, C.R.S. 1973. Even
dumping of waste on one’s own property may be prohibited if
it is found to be a public nuisance under rules and regula-
tions of the local health department. Id. An improperly
maintained disposal site is also a nuisance. §30-20-113,
C.R.S. 1973.
The Solid Waste Dispos al Act provides an effective
means for dealing with the disposal of solid waste. The
broad definition of that term provides a broad regulatory
scope for control of that activity. Under rules and regula-
tions adopted by county health officials, dumping on one’s
own land rising to the status of a public nuisance may be
abated. If degradation of water quality is a public nuisance,
then improper dumping which causes such may be controlled
under this act. It should be noted, of course, that the act
applies to solid waste only and does not regulate the
dumping of liquid waste.
(ii) Individual Sewage
Disposal .
Regulation of individual sewage disposal is permitted
under §25-10-101 et seq., C.R.S. 1973. The County regula-
tions pertaining such are discussed in §II.B., supra .
(iii) State Criminal Code .
The state’s criminal code declares and provides for the
abatement of certain nuisances. §16-13-301 et seq., C.R.S.
1973. Section 16-13-302 provides:
“It Is the policy of the general assembly that
every public nuisance shall be restrained, pre-
vented, abated, and perpetually enjoined. It is
the duty of the district attorney in each judicial
district of this state to bring and maintain an
action, pursuant to the provisions of this part 3,
to restrain, prevent, abate, and perpetually
enjoin any such public nuisance.”
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The. statutes go on to define four classes of nuisances.
Included at §l 6 —l3-3O5(l)(e), C.R.S. 1973, as a class three
nuisance is the following:
“any unlawful pollution or contamination of any
surface or subsurtac:e wJters in this state, or of
the air, or any water, substance, or material
intended for human consumption, but no action
shall be brought under this paragraph if the state
department of health or any other agencies of
state or local government charged by and acting
pursuant to statute or duly adopted regulation
has assumed iurisdlction by the institution of
proceedings on that pollution or contamination.”
Although enforcement of this statute is the responsibility
of the District Attorney for Grand County, and not the
County acting through its Commissioners or County Attorney,
it can be of some assistance herein. The statute does
provide a clear and authoritative prohibition of water
pollution, based upon a nuisance theory. While the County
itself cannot enforce the prohibition, it can and should
urge the District Attorney for the County to do so. In
addition, the statute establishes that water pollution may
be a nuisance and lends credence to potential local nuisance
regulation thereof, as appears valid under the above-discussed
cases and statutes. The statute is not intended to supe-
rsede such alternative regulation. §16-13-305(l)(e), C.R.S.
1973.
b. Proposed Regulatory Scheme .
The type of regulations which a county might adopt
would depend upon which authority was used. In all cases,
however, it is envisioned that the emphasis of the regula-
tion would be on control of sources from existing develop-
ment and, to a lesser extent, control of sources from
ongoing development.
On the. basis of the above, it would seem that nuisance
regulations probably would be adopted by the local board of
health. Such would seek to control sources of water pollu-
tion from existing development. Land use regulations dis-
cussed in prior sections should be designed to control
sources which may arise from proposed development or devel-
opment in approved subdivisions. By proposing such a use of
the nuisance power, it is not intended to imply that non-
conforming use regulation, discussed above, should not also
be employed. Nuisance regulations would seek to control any
activity which was, at the time of application of the regu-
lations, contributing a nonpoint or point source of water
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pollution to the lakes or any tributary thereto. It might
prove helpful to adopt definitions of the terms “point” and
“nonpoint” sources of water pollution within the regulation
in order to define its scope. If desired, certain activi-
ties, when contributing pollutants, might be stated to be
nuisances. For example, runoff from a gas station parking
area might be contributing sources of grease or oil to the
lakes. Grease and oil could be defined as water pollutants,
and the operation of a gas station in a fashion which con-
tributes the same to the lakes could be regulated as a
nuisance. Abatement by any satisfactory technique could
then be required. Similar control of other activities could
be had.
Nuisance regulation should be a technique of last
resort. Whenever possible, the alleviation of nuisance
effects should be planned for and controlled in advance of
their occurrence.
Nuisance regulation might also serve as a means of
regulating pollutant sources arising from ongoing develop-
ment. This might be done more effectively through the use
of zoning, subdivision, grading, erosion control, and other
land use regulations.
Finally, regulation of the improper deposit of solid
waste should also be regulated when such constitutes a
public nuisance. Regulations may be adopted. The widest
possible regulation of pollutants emanating from existing or
future improper dumping is suggested. A broad regulatory
scheme based on the Solid Waste Disposal Act could succeed
in eliminating many sources of water pollution.
Nuisances might also be attacked through use of the
criminal statutes cited in (iii), supra . The County can
clearly do no more than urge the responsible District
Attorney to enforce those proscriptions.
4. Regulation Under H.B. 1041 .
H.B. 1041, codified as §24-65.1-101 et seq., C.R.S.
1973, authorizes local governments to desT nate and regulate
development in certain hazardous areas and with respect to
certain activities of state interest. In order to develop
in such an area or with respect to such an activity once
designated by a local government as a matter of state
interest, a person must obtain a permit to do so from the
responsible local government. §24-65.1-501. H.B. 1041
provides a form of regulation separate and distinct from
zoning, subdivision, or other local land use regulation. As
a result, this technique could be utilized to regulate
development in appro\-ed but undeveloped or partially-devel-
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oped subdivisions. In addition to all other forms of local
approval, a person 7ishing to erect a house on a platted lot
would need to obtain a 1i.B. 1041 permit. To do so, he would
be required to meet the st indards established by the local
regulations pertaining thereto. §24-65.1-501(3). C.R.S.
1973. By including water quality considerations in these
re ;ulat ions, the County could obtain a regulatory handle on
important matters which may have been missed by prior sub-
division approval.
PB. 1041 establishes twenty-one areas and activities
of state interest. Those which pertain particularly to
water quality and/or development of new subdivisions or
other new communities might be useful to regulate the water
quality impacts of approved subdivisions. The following
appear to be applicable:
1. Natural hazard areas, including floodplains and
geological hazards. §24-65.1-201(l)(b), C.R.S.
1973.
2. Areas containing or significantly impacting his-
torical, natural, or archaeological resources,
including shoreline areas and significant wildlife
habitats. § 24 - 6 5.l- 2 O1(l)(c), C.R.S. 1973.
3. Site selection and development of new connnunities.
§ 24 -65.l-203(l)(g), C.R.S. 1973.
4. Site selection and construction of new domestic
water and sew ge treatment facilities and major
extensions thereof. 24-65.1-203(l)(a), C.R.S.
1973.
The Model Regulations of the Land Use Commission for each of
these, along with other matters not appropriate to regula-
tion of approved subdivisions, were described in §III.J.,
supra . As was suggested therein, certain additions to those
models would be advisable to assure that drainage, erosion,
sedimentation, and other point or nonpoint source problems
were controlled.
The usefulness of any particular matter described above
is, of course, limited by the appropriativeness of its use
in any specified area. For example, while development in a
geological hazard area is regulable to control the water
quality impacts of such, such an area can be designated only
if real geological hazards exist. If no approved subdivision
lies on top of such, then the usefulness of that particular
area is lost. The same can be said for floodplains or other
areas. Similarly, unless a subdivision meets the H.B. 1041
definition of a anew community,” see §24-65.1-104(13),
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C.R.S. 1973, designation of that matter even for the entire
county will be of no use in regulating that particular
subdivision. Alternatively, it may be that the County is
aware of certain hazardous areas and activities within the
County which are not mentioned herein but which might prove
to present a useful regulatory basis under H.B. 1041. If so,
these should be designated.
H.B. 1041 does present one potential problem to using
designation of matters of state interest as a device to
regulate development in approved subdivisions. Section 24-
65.l-107(l)(c)(III) exempts from the definition of sub-
division land “with respect to which a development plan has
been conditionally or finally approved by the appropriate
local government. ‘ This section may exempt all approved
subdivisions or even areas merely platted prior to adoption
of subdivision regulations. The Land Use Commission’s Model
Regulations severely limit this section. At §1-105(5) of
the Model Regulations is found the Coimnission’s ir.terpre-
tation of the cited section of H.B. 1041. It exempts
approved development only if:
“The specific development or activity is on land
with respect to which a final plat for a subdivision
had been approved, with or without condition, pur-
suant to the provisions of sections 2—11 of chap-
ter 81, Session Laws of Colorado 1972, codified at
§ 3O—28—l0l, 110, 133, 136, and 137, C.R.S. 1973.”
This section, therefore, exempts only those subdivisions
approved under subdivisions adopted pursuant to S.B. 35 of
1972. Thus, no subdivision prior to 1972 would be exempt.
Whether the Land Use Commission’s interpretation would
withstand judicial challenge is uncertain. It does, how-
ever, permit the use of H.B. 1041 to regulate development in
any approved subdivision adopted prior to the County’s
adoption of subdivision regulations pursuant to S.B. 35.
This would constitute most approved subdivisions which now
concern the county.
5. Regulation Under H.B. 1034 .
H.B. 1034, the Colorado Local Government Land Use
Control Enabling Act of 1974, §29-20-101 et g., C.R.S.
1973, provides local governments with bro ff but inspecific
a thority to regulate land use within their jurisdictions.
That act appears to provide a county with certain authority
to regulate pollutants resulting from existing uses as well
as from development in approved subdivisions.
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H.B. 1034, at §29-20-104, C.R.S. 1973, enumerates eight
categories of regulatory authority which may be exercised by
local governments. These include authority to plan for and
regulate land use by:
1. “Regulating development and activities in haz-
ardous areas;
2. “Protecting lands from activities which would
cause immediate or foreseeable material danger to
significant wildlife habitat and would endanger a
wildlife species;
3. “Preserving areas of historical and archaeological
importance;
4. “Regulating, with respect to the establishment of,
roads on public lands administered by the federal
government; this authority includes authority to
prohibit, set conditions for, or require i permit
for the establishment of any road authorized under
the general right-of-way granted to the public by
43 U.s.c. 932 (R.S. 2477) but does not include
authority to prohibit, set conditions for, or
require a permit for the establishment of any road
authorized for mining claim purposes by 30 U.S.C.
21 et seq. or under any specific permit or lease
granted by the federal government;
5. “Regulating the location of activities and devel-
opments which may result in significant changes in
population density;
6. “Providing for phased development of services and
facilities;
7. “Regulating the use of land on the basis of the
impact thereof on the community or surrounding
areas; and
8. “Otherwise planning for and regulating the use of
land so as to provide planned and orderly use of
land and protection of the environment in a manner
consistent with constitutional rights.”
Each of these categories could probably be used by an
imaginative planner to control water quality impacts of
development in a host of ways. For example, on its face,
§29-20-104 is probably broad enough to permit a county to
adopt a program for the control of pollutant discharge and
nonpoint source contamination of water similar to that
established by state and federal law. A reading of the
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entire act appears to indicate that its apparently limitless
scope is an illusior 1 . The proper interpretation of H.B.
1034, at least as regards counties, seems to be that the act
was intended to supplement existing enabling legislation
rather than to provide an independent body of authority to
local governments. This interpretation seems consistent
with §29-20-102 of the act which states that the act’s
purpose is to “ clarify arid provide authority to local gov-
ernments.” (emphasis supplied) The same conclusion is
strongly reinforced by the complete absence of any pro-
cedures and, more importantly, enforcement authority within
the act. That the procedures and enforcement authority
provided by existing legislation were intended to apply to
H.B. 1034 is probably the reason for this omission. As a
result, the consultant has, throughout §11., supra , and in
this section, viewed H.B. 1034 as an act which supplements
existing legislation and which is therefore subject to
certain of the limitations thereof. Suggested regulations
offered here reflect that interpretation.
With the above limitations in mind, the following uses
ot H.B. 1034 may be proposed:
1. H.B. 1034 could be used, supplemented by County
zoning authority, to adopt regulations controlling
critical areas and activities. The utility of
this technique as a tool to regulate development
in existing subdivisions has been described here-
in. Because H.B. 1034 would be utilized in con-
junction with zoning, the possible restrictions on
the use of zoning described in §1., supra , should
be reviewed.
2. H.B. 1034 could be used to supplement the use of
building permit regulation as a means of con-
trolling development in approved subdivisions.
See §1., supra . Since H.B. 1034 permits regula-
tion of lard use on the basis of impact, the use
of those techniques is substantiated. The poten-
tial weaknesses in those techniques might be cured
by H.B. 1041 also. For example, it may be pos-
sible to argue that H.B. 1034 permits the expan-
sion of the definitions of the terms “building” or
“structure” beyond their traditional scope, thereby
permitting a broader regulatory scope for building
permit regulation. Indeed, H.B. 1034 may well
permit the use of those techniques to regulate any
form of land disturbance in an approved subdivision,
whether for construction of a ‘building” or “struc-
ture,” or for some other purpose.
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3. H.B. 1034 provides additional legitimacy to the
use of nonconforming use regulation as a means of
dealing with existing development.
4. H.B. 1034 could be aruged Lo enhance the nuisance
authority described in §3., supra , to the extent
now exercised by the County. While H.B. 1034 is
probably not suffiLient to permit nuisance regula-
tion absent other statutory authority, it can be
argued that, to the extent nuisance regulation
seeks to regulate land use, H.B. 1034 is a supple-
ment. Adoption of a broad scheme for the control
of activities contributing pollutants might then
be assured.
5. H.B. 1034, in conjunction with existing subdi-
vision regulations, might be used to control
development in approved subdivisions by employing
it as a basis for vacating existing plats. The
County could adopt regulations stating that all
undeveloped platted areas of a certain age would
be vacated and require reapproval under new
regulations prior to replatting. Whether H.B.
1034 is intended to provide this power may be
questionable in view of the defeat of a similar
proposal by last year’s legislature. Specific
authority therefor has been proposed once again in
this year’s legislature. Apart from whether
statutory authorization therefor exists is the
question of the constitutional protection of
rights in existing and approved areas and the
extent to which such might be injured by plat
vacation.
As can be seen, the foregoing reflect the consultant’s
interpretation that H.B. 1034 is intended to supplement
existing land use legislation -- and perhaps other enabling
legislation. If the act is, in fact, intended to be an
independent authorization to regulate, other techniques
could be considered.
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TV. MEMORANDW•i RE LEGAL (‘ UESTIONS .
Part h of the contract for this study requires that the
following t isk be performed by the consultant:
“Res€arch the legislative history of the Colorado
statute which created the Three Lakes Water and
Sanitation District . . . and prepare a legal
opinion on the following issues:
“1. Is the Three Lakes Water and Sanitation
District required to construct a waste—
ater treatment system which does not
discharge treated effluent into any of
the three lakes (Grand Lake, Shadow
Mountain Reservoir, Lake Cranby)?
2. Is the Three Lakes Water and Sanitation
District obligated to provide centralized
sewerage collection and treatment service
to all property owuers ..ithin the District?”
In order to complete this task, the consultant per-
formed the following:
1. Review of the “legislative history” of the sta-
tute;
2. Review of the statute itself;
3. Correspondence with various legislators and others
familiar with the bill.
4. Review of analogous law.
On the basis of the above, the consultant has concluded
that the Colorado legislature did not necessarily intend
that a “no discharge” system be constructed or that all
property owners within the District be served. Unfortunately,
this conclusion could not be based solely upon the “legis-
lative history” of the act.
A. Legislative History .
No reported or compiled legislative history is kept in
the State of Colorado. This is so not only with respect to
the Three Lakes District’s organic act but also with respect
to all legislation in the state. There are simply no
reports kept of committee actions, hearings, floor debates,
or any legislative action taken, in either the Colorado
House of Representatives or Senate. As a result, the con-
sultant was not able to study the actual legislative history
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of the statute in order o determine the above questions.
In substitution therefor, the consultant closely reviewed
the act itself and spoke with various persons involved with
the drafting and sponsorship of the Act.
B. Terms of the Act .
It is a well—established rule of statutory construction
that the intent of the legislature is to be divined first
from the words of a statute.
The Three Lakes Act is codified at §32-10-101 et seq.,
C.R.S. 1973. Several sections can be analyzed conc ning
the foregoing questions.
At §32-10-102 is found the legislative declaration of
the Act’s purposes. Subsection (l)(a) thereof declares that
the creation of the district promotes the health,
comfort, convenience, safety, and welfare of all the people
of the state and visitors to the state, and will be of
special benefit to the inhabitants of the district ai the
property thereinT emphasis supp1T d) This subsection
makes it clear that the District is established for the
special benefit of its inhabitants and property within the
District. This may be taken to imply that all property must
be benefited or served, especially when read in conjunction
with the general water and sanitation district enabling
legislation which declares that such are formed for the
benefit “of the inhabitants of said districts” only. §32-4-
101, C.R ..S. 1973. A reading of the remainder of subsec-
tion (1)(a) and other subsections of §32-10-102, however,
can be said to support the conclusion that the function of
the Act is to cure the lake’s pollution problem and not to
serve or benefit property owners in particular. See §32-
iO-102(1)(f), (g). Thus, the declaration can be read to
mean that only those areas creating the most serious pollu-
tion problems need be served. Indeed, property may be
“benefited” even if it is not “served” if the pollution
problem is reduced or cured by the District.
A review of the powers of the District is also incon-
clusive. Those powers, stated generally in §32-10-115,
C.R.S. 1973, are similar to the common, broadly-stated
powers associated with water and districts in general. Of
all of them, perhaps the power to tax can be read to require
service of all property owners, since it can be argued that
the power to tax implies a duty to serve. While this argu-
ment is compelling, case law regarding other water and
sanitation districts appears to negate it. See §D.1.a.,
infra . That law would likely apply to the Three Lakes
District as well.
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The Three Lakes District is also empowered to compel
connection of property within 400 feet of a District collec-
tion line. §32-10-117, C.R.S. 1973. It may be argued that
the power to compel connection implies a duty to make ser-
vice available when requested. This argument does not have
the force of the taxation argument, which has been rejected
by the courts and is probably not a basis for concluding
that the District must serve all property owners.
Section 30-10-117 also provides for service charges
against “lots” or “lot equivalents” as described therein.
The section states that such charges may be made when ser-
vice is installed and ready for connection within 100 feet
of the lot or lot equivalent. It can be argued that this
section reinforces the conclusion that the District is under
no compulsion to serve all property owners, since it tends
to imply that there is no duty on behalf of the District to
run lines within 100 feet of all lot lines. Unless it does,
the District may make no service charges, but the section
does leave the implication that it need not do so. Alter-
natively, it may be argued that the section is merely
intended to limit the District’s power to require user fees
without indicating anything about service requirements. In
either case, the implication is, again, insufficient upon
which to base a firm conclusion regarding the District’s
legal obligation to serve.
Similarly, the remainder of the Act provides little if
any legislative intent to require service of all property
owners. Subsequent provisions enumerate certain procedural
requirements for formation of the District, the District’s
boundaries, compulsory connection authority of the District,
procedures for inclusion or exclusion of land from the Dis-
trict as established by the legislature, financing powers,
election procedures, and master planning procedures and
requirements. The consultant has reviewed each of these and
found no indication of the legislature’s intent with respect
to the above questions.
One final section of the Act may be of some assistance.
Section 32-10-179(3) establishes the relationship of the
District with existing municipalities and special districts
within its boundaries. It provides:
“Nothing in this article shall be construed so as
to impair or prohibit tht right a existing
municipalities or special districts existing with-
in the district from either including or excluding
territory to or from their existing boundaries.”
On the basis of this subsection, it is possible to argue
that, since existing entities may expand within the outer
boundaries of the Three Lakes District, the District cannot
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therefore be required to serve all property owners since
some might be served by other entities at some future date.
Like the other sections of the Act, this section delivers no
clear answer to the scope of service question nor any answer
at all to the no discharge question.
It would appear that, at best, the Three Lakes Act is
unclear as to its intent respecting the questions under
discussion. Those few sections which appear to help at all
are subject to varying interpretations.
C. Correspondence with Legislators .
Because of the absence of actual legislative history
and because of the uncertainty of the intent of the Act
itself, the consultant was forced to attempt to find legis-
lative history elsewhere. Thus, various persons who were
involved with passage of the Act in the Colorado legislature
and others responsible and familiar with the Act were
contacted. Their responses are described below. It should
be noted that the opinions of legislators and others do not
constitute legislative history as such is defined by the
courts. This information, therefore, may be of little
value. It is included in the hope that the uncertainty left
by the above-discussed material will be clarified.
1. Is the Three Lakes Water and Sanitation District
reguired to construct a wastewater treatment
ystem which does riot discharge treated effluent
into any of the three lakes (Grand Lake, Shadow
Mountain Reservoir Lake Granbv) ?
Four legislators and one person familiar with the Act
were contacted with regard to the above question. The
legislators, each of whom was in the Colorado House or
Senate when the bill was passed and who were involved with
its passage, were Senators Theodore Strickland, Joseph
Schieffelin, and William Garnsey, and Representative Robert
Kirscht. Also contacted was Jon Mulford, an attorney
involved with the drafting of the Act. All appeared to
agree that the legislature did not intend to require that a
“no discharge” system be built. Each stated that the pri-
mary concern of the legislature was to create the means for
providing a system which would prevent pollution of the
lakes, though no particular system was envisioned.
Senator Schieffelin : Senator Schieffelin said that he.
does not recall any discussion about the kind of plant which
was to be built. He stated that it was the basic theory of
the Act to create a district with sufficient power, par-
ticularly taxing power, to do what was needed to alleviate
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the recognized pollution factor. There was no specific
solution in mind.
Senator Strickland : Senator Strickland commented that
ttie only matter contemplated by the legislature was that
there was a water quality crisis that needed solution.
Creation of the District was the response to the crisis. No
specific treatment system was conceived or intended. Rather,
the legislature’s general intent was to protect the property
owners in the three lakes area.
Senator Garnsey : Senator Garnsey stated that the gen-
eral intent behind the creation of the District was to
provide a means for dealing with the recognized pollution
problem. No particular system was contemplated. The inde-
pendent District was created because it was believed that
local communities would not deal with the problem on their
own, either because of a lack of sufficient tax base or
because the local benefit to be derived from such a system
was not great enough.
Representative Kirscht : It was Representative Kirscht ’s
opinion that the general intent of the legislature was
simply to stop the pollution of the lakes. There was no
intent to require one specific means of doing so. Any means
that worked would be within the intent of the statute.
John Mulford : Mr. Mulford held a slightly different
opinion regarding the “no discharge” question. While he
agreed that the primary concern of the legislature was to
create an entity which would have the power to abate the
pollution problem, he stated that he believed a system which
would discharge into the Colorado River at a point south of
the lakes near Grandy was at least contemplated at the time
the legislation was being created. He did, however, agree
that it was not intended by the Act to lock the District
into any particular solution.
Apart from the foregoing statements of persons involved
with the authorization of the District, the following infor-
mation was available to the consultant:
1. A 1971 engineering study prepared for the Three
Lakes Anti-Pollution Committee. Wright-McLaughlin
Engineers, Preliminary Conceptual Study Plan ,
Feb. 1971. That study did envision a system which
discharged treated effluent into the Colorado
River south of the three lakes.
2. Conclusions of representatives of the United
States Park Service, Bureau of Reclamation, and
Public Health Service, and the Colorado Health
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Department, reached at a meeting of February 21,
1968. Their recommendations did conceive of a
general plan under which discharge of treated
effluent would occur south of the three lakes.
While this information is clearly not legislative history,
even in a nonlegal sense, the conclusions of the govern-
mental panel, at least, were public information available to
the Colorado legislators. It may be argued that these
conclusions, and again those of the governmental panel
especially, influenced the legislature and indicate its
intent to create a “no discharge” system.
The conclusions which can be drawn from the foregoing
information are conflicting. Historical information avail-
able to the legislators tends to indicate that a system
discharging south of the lakes was contemplated by certain
persons who originally studied the water quality problem.
Despite this, a sampling of persons closely involved with
the Act’s passage deny any legislative intent to require
that solution. This may be interpreted as an expression of
the legislature’s rejection of the conclusions of the early
studies. It would appear safest to conclude that a system
discharging south of the lakes is not required by the Act,
though it is certainly permitted.
2. Is the Three Lakes Water and Sanitation District
obligated top vide centralized sewer g
collection and treatment service to all
perty owners within the District ?
There was agreement among all those persons contacted
that the legislature did not intend that the Water and
Sanitation District be obligated tO provide services to all
property owners in the District.
Senators Strickland and Schieffelin agreed that all new
property owners should be forced into whatever system was
eventually decided upon. With respect to existing property
owners, Senator Stickland believed that the intent was to
continue to provide services where they were already being
provided and to service additional property owners as
became necessary to prevent or stop pollution. Senator
Schieffelin recalled that the intent was to force existing
property owners into the system only when pollution could be
traced to them.
Senator Garnsey believed that, when the problem could
be handled more economically and efficiently on the basis of
existing systems, then property owners within these systems
would not have to be serviced by the District. This, of
course, comports with §32-10-179(3), C.R.S. 1973.
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Mr. Mulford recalled that there was no intent to pro-
vide service for all property owners, but rather to provide
service for all those for whom service was being provided
already, and to take more people into the system as this
became necessary or economically feasible.
While the question of precisely who must be served by
the District is not clearly answered by the responses of the
legislators and Mr. Mulford, they do seem to indicate that
not all property owners within the District are required to
be served. In general, it appears that the legislature
simply wanted to solve the water quality problems of the
three lakes without specifying a particular method. Argu-
ably, if this requires providing service to all property
owners, then the Act should be read to require such.
Alternatively, if such could be accomplished by serving
certain areas only, then that might be taken to constitute
the legislative intent. The responses of the legislators
tend to support the latter.
D. Other Law Relating to Question
of Scope of Service .
Because the question of whether the Three Lakes Dis-
tr ct is bound to construct a system which discharges no
treated pollutants into the lakes is indigenous to the
District alone, reference to other law dealing with water
and sanitation districts is unhelpful. The question of
whether the District must serve all property owners within
its boundaries is, however, subject to some clarification by
reference to Colorado law other than the Three Lakes Act.
1. Statutory Comparison .
Colorado statutes and case law dealing with water
and/or sanitation districts other than the Three Lakes
District reinforce the conclusion that the District was not
intended to be obligated to serve all property owners. A
review of the various water and/or sanitation districts
provided for at §32-4-101 et seq., C.R.S. 1973, indicates
that, with one exception, see §32-4-230, C.R.S. 1973, at
least on the face of the legislation, no intent to require
service of all property owners was ever contemplated. This
seems consistent with a reasonable interpretation of the
Three Lakes Water nd Sanitation District Act.
2. Colorado Case Law .
a. Taxation in Absence of Benefit .
Colorado case law also supports the proposition that
not all property owners must be served. The function of a
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water and sanitation district is to serve the health,
. afety, and welfare of its inhabitants , not merely the
property owners of the distr-Lct. People ex rel. Dunbar v.
Proposed Toll Gate Sanitation District , l Cob. 33, Z6T
F.2d 152 (1953); Ruberoid Co. v. North Pecos Water and
Sanitation District , 158 C To. 498, 408 P.2d 436 (1965);
but see § 32 -lO-102(l)(a), C.R.S. 1973. That the Three
Lakes District was established for this purpose, among
others, is expressly stated by its organic act. See §32-
10-102(1)(a), C.R.S. 1973. As a result, water and sanita-
tion districts generally, and the Three Lakes District in
particular, are authorized to levy and collect ad valorem
property taxes based upon the assessed valuation of the
property within the district rather than benefit thereto
from district services. Ruberoid, supra; Gordon v. Wheat-
ridge Water District , 107 Cob. 128, 109 P.2d 899(1941);
see §32-4-115(l)(l), 121, C.R.S. 1973. Thus, property
within a district may be taxed in order to provide services
for the public benefit even if the property itself is not
benefited. Ruberoid, supra . Failure to provide benefit is
not, by itself, sufficient grounds for excluding property
from a water and sanitation district. Id. As was said in
the Ruberoid decision:
“The findings and conclusions that plaintiffs were
not entitled to exclusion are nowise legislative
in nature. The court’s judgment finds clear
in the record because there was no evidence
offered to sustain the ppl1cation for non—inclusion
other than asserted lack of benefit . On the other
hand , the community health and welfare was shown to
be in jeopardy by the continued use of septic tanks
for domestic and industrial wastes and sewage in
soil not suitable for such continued usage. It was
also shown that the shallow wells from which indus-
trial users were drawing millions of gallons of
water and upon which the inhabitants were dependent
for water supply could not be used as a source
indefinitely as both diminution and depletion as
well as potential contamination were the inexorable
prospects in the future.” (emphasis supplied)
Since water and sanitation districts act to benefit the
public generally, and not merely property owners, since
property owners may be taxed by a district without receiving
benefit therefrom, and since failure to receive benefit is
not, in itself, sufficient grounds for exclusion from a dis-
trict, it would seem accurate to conclude that there is no
legal obligation for water and sanitation districts, includ-
ing the Three Lakes District, to supply services to all
property owners within a district, at least if such is not
necessary for the health, safety, and welfare of the public.
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h. Governmental v. Proprietary
N ture of Services .
In Colorado, it is quite clear that provision of ser-
vices by a water and sanitation district is a proprietary
rather than governmental function. National Food Stores v.
North Washin&ton Street Water and Sanitation t iitrict, l6
Cob. 178, 429 P.2d 283 ( 1967); Cerise v. FruitvaleWater
and Sanitation District , 153 Cob. 31, 84P .2d 462 (1963).
By virtue of such a classification, it would appear that
water and sanitation districts, and the Three Lakes District
in particular, are not obligated to serve all property
owners within the District. As was stated in the National
Food Stores decision:
‘The distr ct is no different than any other water
and sanitation district; and since the services it
renders are proprietary in nature they may be con-
tracted for as is provided by the pertinent statutes
dealing with the powers of the board created to
administer the district. By the provisions of
C.R.S. 1963, 89—5—13(4), [ now C.R.S. 1973, 32—4—113
(l)(d)] the board of directors of a water and sani-
tation district is granted power ‘tO enter Into
contracts and agreements affecting the affairs of
the district * * *.‘ No restrictions are placed
upon boards as to the types of contract into which
th y enter.” (emphasis supplied)
Thus, it would appear that a water and sanitation district
may render its services as its management sees fit, con-
ditioning or withholding them for any reasonable purpose.
It may, of course, be argued that the National Food Stores
case stands only for the proposition that services can be
conditioned , not that they may be withheld , by a district.
Since in that case the district’s services would have been
withheld if National did not agree to the condition, it
seems improper to so limit the case. Certainly the court
did not so limit it. In addition, the proposition that
services may be withheld conforms to other authority as
well. According to NcQuillan’s treatise on Municipal
Corporations, for example, this rule is the general one, and
a municipal corporation, as the owner of its facilities , may
refuse services or require permit sforThe extension thei -
for in accordance with properly-adopted standards. McQuillan,
Municipal Corporations , §31.31; see also 93 CJS Waters,
§243(1), et seq .
c. Water and Sanitation District
as a Public Utility .
Not all authority necessarily supports the conclusion
that a water and sanitation district need not serve all
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property owners within its jurisdiction. It is possible to
argue that such districts are public utilities bound to per-
form just such a duty.
While water and sanitation districts are generally not
subject to the jurisdition of the Public Utilities Commis-
sion, they may constitute public utilities under the test
enumerated in City of En lewood v. City and County of
Denver , 123 Cob. 2 , Z29 P .2d 67 (lg5r , ani rec t1y
reaffirmed in City of Boulder v. Robinson , ____ Cole. ____
547 P.Zd 228 (1975) That test is statea as follows:
to tall into the class of public utility.
a business or enterprise must be impressed with
a public intere t and thet those engaged in the
conduct thereof must hold themselves out as
serving or ready to serve all members of the
public, who may require it, to the extent of
their capacity. The nature of the service must
be such that all members of the public, have an
enforceable right to demand it. . .
This test has been applied to water and/or sanitation dis-
tricts on at least two occasions. In Schlarb v. North
Suburban Sanitation District , 144 Cob. 590, 33 7 P.2d 647
(1960), tH district was herd not to be a public utility.
In City and County of Denver v. Glendale Water and Sani-
tation Distri t , l5TColo. 39, 380 P.2d 553 (196 ’3Y , the
district was classified as a utility. As the discrepancy in
those cases and the Englewood and Robinson decisions indi-
cate, the question of whether a municipality or quasi-
municipality is acting as a public utility is a factual one.
If it is found to be so, however, it must then serve all
persons desirous of service unless prohibited by valid
economical or utility-related reasons. Robinson, supra . If
the Three Lakes District is a utility, therefore, ft may be
bound to serve all property owners.
The key issue in the determination of whether a dis-
trict isa utility is whether the district has held itself
out as serving or ready to serve all members of the public.
Since the Three Lakes District has not constructed works or
offered services, only its organic act and enabling legisla-
tion exist to help in this determination. The enabling
legislation has been discussed above and it has been con-
cluded that it does not indicate any intent to require the
District to serve all property owners. Since existing dis-
tricts with the Three Lakes District may serve persons, this
appears to be a reasonable conclusion. See §32-10-179, C.R.S.
1973. Neitherdoes the District master though pre-
senting and recommending a regional system, indicate an
intent, at least at present, to serve all persons within the
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District. As a result, it appears that the District has not
intended to hold itself out ‘to serve all members of the
public.” This being the case, it should be concluded that
the District is not a public utility. Such a conclusion is
consistent with the decisions discussed in subsections a.
and b., supra , which indicate that a district is under no
legal obligation to serve all property owners. Neither does
the District appear to have attempted to undertake any other
form of service obligation with relation to such.
E. Conclusion .
On the basis of the foregoing, the consultant concludes
that:
1. The Three Lakes Water and Sanitation District is
not required to construct a collection and treat-
merit system which does not discharge treated
pollutants into the three lakes.
2. The District is under no obligation to serve all
property owners within the boundaries of the
District.
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