August 27, 2018
Author: Karen A. Aviles
Organization: City and County of Denver
Plats and Site Plans are inextricably linked. The Site Plan provides much of the remaining development detail not covered by the Plat. Plats and Site Plans are often done concurrently because in many cases, both entitlements are preconditions to closing a real estate transaction. Therefore, both Plats and Site Plans must be thought about together.
I. Plats and Site Plans in Denver.
The City and County of Denver has unique, and short, subdivision requirements. The Denver Revised Municipal Code (“D.R.M.C.”) Sections 50-16 to 50-26 is approximately 2 pages long and provides that land is to be subdivided if dedications of streets, open spaces, schools and other public places are required. Short, however, may not be so sweet because Denver also requires that, in addition to the subdivision process, any development must have a Site Plan approved before any zoning or building permits are issued if it (a) is on a zone lot exceeding 10,000 square feet under the Old Denver Zoning Code; (b) requires approval of any City departments other than the Department of Community Planning and Development; and (c) is zoned in any zone districts except for development of single or two-units dwellings in a select few zone districts. D.R.M.C. 188.8.131.52. In general, most developments require Site Plans in Denver. It is through the Site Plan process that most development details are worked out.
II. Plat and Site Plan “Context”.
All property lies within a neighborhood within a local jurisdiction. These form the “context” of the property. The development and its required Plats and Site Plans must be compatible with this context. Context can be found in the local jurisdiction’s comprehensive plans and zoning.
1. History of Planning and Zoning.
A brief look at the history of planning and zoning gives insight into what comprehensive plans are, how they are implemented through zoning and other regulatory schemes, and how they set the context.
Prior to the beginning of the 20th century, most land use regulations relied upon the common theory of nuisance, which prohibited unreasonable uses of land that impacted the public’s health and safety. Beyond these modest limitations, a landowner could improve and use land without governmental interference. However, the mere prohibition of nuisances was not sufficient to cure the blight and decay found in 19th century urban areas and to address uncontrolled development.
The “City Beautiful” movement of the late 19th century provided momentum for reform of this unregulated growth. Influenced by the 1893 Chicago World’s Fair, planners began looking at the physical layout of parks, streets, civic centers, and transportation with an emphasis on aesthetic consideration. After World War I, planning moved to a “City Practical” movement with a focus on the engineering, legal, social, and administrative aspects of community problems. In 1916, New York City adopted the nation’s first comprehensive zoning ordinance, in conjunction with its planning for transportation improvements as part of the “City Practical” movement.
The “City Practical” ideas were endorsed by the Federal Government who actively sponsored planning at the municipal level. As a result, in the 1920’s, the Department of Commerce published the Standard State Zoning Enabling Act. The Standard State Zoning Enabling Act was the template followed by most states where the state legislatures vested local governments with the power to adopt and enforce zoning ordinances to further the comprehensive plan for development of the community. Some states like Vermont, Maine, and Hawaii have retained significant planning and zoning powers. However, most states, including Colorado, vest the power to plan and zone in local governments.
2. Planning and Zoning Powers.
Every state has the power to plan and zone. Check the state and local laws applicable to your property’s jurisdiction. Colorado grants authority to plan and zone in two different ways: constitutionally and statutorily.
(a) Home Rule Cities:
Colorado’s Constitution allows for the creation of home rule cities. Home rule cities derive their power to plan and zone through Article XX of the Colorado Constitution by adoption of a home rule charter.
For example, Section 3.2.9 of the Denver Charter vests City Council with the power to zone. Charter Section 3.2.9(C) provides that such zoning regulations shall be made in accordance with a Comprehensive Plan prepared by the Department of Community Planning and Development (“CPD”) and adopted by the City Council by ordinance.” Charter Section 2.13.3(B) provides that CPD has the power and duty to “[a]ssist the City Council in preparation for and adoption of the City’s Comprehensive Plan for the long-range development or redevelopment of the City and supplements or amendments thereto.”
In Denver, CPD is empowered to prepare, maintain, amend and supplement the Comprehensive Plan for the orderly growth and harmonious development of the City and its metropolitan area and cooperate with the regional planning commission (DRCOG) on all planning matters affecting the City through D.R.M.C. §12-17. Although Denver has a long tradition of comprehensive and neighborhood planning, it wasn’t until 2002 that the Charter was amended to establish the Planning Office as a Charter Department and the Manager of the newly created Department of Community Planning and Development was made a member of the Mayor’s Cabinet. This was the culmination of the push to have comprehensive planning be an integral part of all decisions and expenditures of the City.
(b) Statutory Counties:
In Colorado, if home rule cities are not involved, the power to zone is authorized statutorily. The power of counties to plan and zone is derived exclusively from C.R.S. §§ 30-28-101 through 139. C.R.S. §§30-28-106 requires counties to adopt a “master plan for the physical development of the unincorporated territory of a county.”
(c) Statutory Cities:
The power of statutory cities to plan is derived from C.R.S. §31-23-206 to 210. “It is the duty of the [Planning] Commission to make and adopt a master plan for the physical development of the municipality.” C.R.S. §31-23-206.
3. Comprehensive Plan Context.
Regardless of the basis for the power to plan, most Comprehensive Plans contain similar provisions. Comprehensive Plans start with a stated purpose and intent. The purpose of the Comprehensive Plan is to “provide an expression of the city’s vision for the future with a listing of goals and objectives. Once prepared and adopted, the plan will guide and influence decisions that affect the future of the City.” D.R.M.C. §12-61(a). In Denver, the Comprehensive Plan may consist of one unit or several component parts, may be adopted in whole or in parts, but, in any event, shall be comprehensive in that its scope encompasses the entire city.
The processes for adopting and amending Comprehensive Plans are also outlined in state statutes or ordinances. In Denver, the Comprehensive Plan, or any amendment or supplement, including Neighborhood Plans, is first reviewed by the Denver Planning Board and its recommendation forwarded to City Council who approves the plan by ordinance. Once approved, the plan becomes part of the Comprehensive Plan. D.R.M.C. §12-61(d). In Colorado, salutatory counties and cities Comprehensive Plans are adopted by the jurisdiction’s Planning Commission after notice and a hearing. The Comprehensive Plan may include maps, charts, drawings and descriptive matter of the following elements:
(i) Land use;
(ii) Transportation including streets and highways, public transit, pedestrian and bicycle circulation, railroads, airports, and other aspects of the transportation system;
(iii) Capital and community facilities;
(iv) Parks and recreation;
(v) Urban design;
(vi) Historic preservation
(vii) Areas for development and redevelopment;
(ix) Neighborhood revitalization;
(xi) Economic development;
(xii) Human services;
(xiii) Metropolitan planning;
(xiv) Projections of population growth; and
(xv) Location of special areas such as wetlands, floodplains, steep slopes and threatened species
Denver has applied these requirements to include a wide variety of issues critical to the sound growth of the City. Denver’s Comprehensive Plan 2000 sketches a vision for Denver through the development of goals, visions of success, objectives and strategies. It focuses on (a) an integrated land use and transportation plan (Blueprint Denver) to balance and coordinate Denver’s mix of land uses to sustain a healthy economy, support the use of alternative transportation and to enhance the quality of life in the City; and (b) clarifying and updating zoning and other land use ordinances, regulations and procedures to be consistent with these goals and objectives. Plan 2000 and Blueprint Denver have become part of every decision made by the City, including the City’s budgeting process. The Plan also sets the “context” for private development that Plats and Site Plans must be consistent with.
4. Small Area or Neighborhood Plan Context. Using the framework and vision of the Comprehensive Plan as a backdrop, many jurisdictions develop Small Area or Neighborhood Plans. These Small Area Plans range from particular neighborhoods (Stapleton) to certain types of developments (transit oriented developments around light rail stations) to certain types of places (entertainment areas around stadiums or areas along rivers). Small Area Plans are used to flesh out the vision and needs of a particular area, moving from the broad view of the Comprehensive Plan and the Blueprint Denver Map to a more focused area. It sets the context for a more discrete area.
5. General Development Plans Context. Many jurisdictions, including Denver, require developments to prepare General Development Plans (\"GDP\") either prior to rezoning or prior to a Site Plan. GDPs plan an area that is smaller than a Small Area Plan, but larger than a Site Plan. GDPs are often done for a Subdivision if the development of the Subdivision is to be built in phases. In Denver, the intent of the GDP is to establish a workable framework for the development of large or phased projects. GDPs range from \"concept level,\" where the general, yet project specific, transportation, drainage, open space, and land uses are shown, to \"Site Plan level,\" where development details are shown and final transportation and drainage studies are approved at the same time as the GDP. Regardless of the type of GDP, major transportation, drainage and water quality systems, major utilities, open space, and critical land use issues are identified and a plan for addressing those issues is included in the GDP. GDPs take the vision of the Comprehensive Plan and the more focused planning of a Small Area Plan and begins to apply them to a large project or a group of projects.
GDPs are required for some or all developments depending on the jurisdiction. Even if a GDP is not required, a developer may elect to do a GDP. Denver urges developers of mixed use projects to prepare a GDP prior to any rezoning so that there is an overall plan of the project to guide the rezoning and all subsequent regulatory approvals including Site Plans. Design guidelines may be approved as part of any GDP. In Denver, the Manager of Community Planning and Development may also submit a GDP if necessary to implement the Comprehensive Plan.
The submittal requirements and review processes vary by jurisdiction. In Denver, GDPs are submitted to the City's Development Review Committee (“DRC”), consisting of staff from CPD, Public Works, and Parks and Recreation, among others. The DRC reviews the application and sends copies to City Council members, registered neighborhood organizations and other reviewing agencies. The GDP is reviewed and resubmitted until it is finalized, anticipated to be 120-180 days.
GDPs must be approved prior to Site Plan approval or issuance of any zoning permit. Some GDPs are approved by the DRC while others require approval of the Denver Planning Board. The Planning Board acts after notice and a public hearing based upon the GDP's consistency with the Comprehensive Plan and compliance with applicable ordinances and regulations. GDPs may be approved, approved with conditions, or denied. Approved GDPs are recorded in the real property records. The final decision of the DRC may be appealed to the Board of Adjustment. Decisions of the Planning Board may be appealed to Denver District Court under C.R.C.P. Rule 106. In Denver, City Council does not approve GDPs.
GDPs may be amended. Major amendments, must be approved in the same manner as the original GDP. Minor amendments, may be approved by the Zoning Administrator. Major amendments are those that significantly modify allowable height, mix of uses, or density; significantly alter the location or amount of land for open space, trails, and public facilities; change the arterial and collector street grid; change storm drainage courses; or any modification that would significantly alter the character of the GDP. Approved amendments are also recorded. Because it is not entirely clear when an amendment is major versus minor, this should be clarified on the face of the GDP.
6. Zoning Context.
The most common tool to implement the jurisdiction’s plans and create the regulatory “context” for development is through zoning. Zoning consists of two pieces. First is the zoning code language, which creates the zone districts and the regulatory language applicable to uses and structures within each zone district. Second is the zoning map, which designates the zone district applicable to a particular property.
(a) Zoning Codes: Every jurisdiction with the power to zone has some sort of Zoning Code. It is critical to look at first the planning context of the zoning and then at the actual language of the Zoning Code and its applicability to the particular property and project through the Zoning Map. Denver’s Zoning Code’s context and language is fairly typical.
For the first time since 1956 and after three years of work, Denver has an entirely new Zoning Code. Between 1956 and 2010 when the new Denver Zoning Code was adopted, Denver moved from the Euclidian zoning concept of strict separation of uses; through the mixed use zoning concepts of the 1990s where separation of uses was discouraged in favor of creating areas where a mix of compatible uses was encouraged with the concept of being able to live, work and play within walking distance; to form based zoning that downplays uses and focuses on form, under the theory that form can mitigate most issues arising from mixing seemingly incompatible uses.
Denver’s Comprehensive Plan 2000 and Blueprint Denver divide the City into “Areas of Change” and “Areas of Stability.” Areas of Stability were to be protected and any new development must fit within and enhance that stable context. Areas of Change are areas around transit stations and large undeveloped or under developed tracts of land. Denver wants to focus most of the new growth into Areas of Change. The Denver Zoning Code implements the Comprehensive Plan concept by concentrating on integrating transportation and new sustainable neighborhoods into both Areas of Change and Areas of Stability. The intent of the Zoning Code is to implement the Comprehensive Plan and guide orderly development in Denver in order to preserve and promote public health, safety, prosperity and welfare by balancing conservation and development, achieve design excellence in the built environment and guide Denver to a prosperous and sustainable future. It creates “contexts” of Suburban, Urban Edge, Urban, General Urban, Urban Center, Downtown Industrial, Campus, Open Space, Overlay Districts, Denver International Airport, Planned Unit Development and Master Planned Contexts. It then creates form based regulations for each Context, focusing on the dominant building form and character, minimum zone lot size and maximum height. In addition, special provisions tailored to each Context were included. This mixture of context and form based regulations make up the zone districts now available to be used as the zoning of land in Denver.
(b) Zoning Map: The Zoning Map applies the Zoning Code language to every parcel of land in a particular jurisdiction. It is critical to know the current zoning applicable to the property to be developed. In Denver, at the same time as the language of the Denver Zoning Code was being adopted, Denver City Council did a legislative map amendment and rezoned most of the land in Denver to the new zone districts under the Denver Zoning Code.
Land that was previously zoned into Planned Unit Developments (PUD), had zoning with waivers and conditions, or had a Planned Building Group Site Plan (PBG) were not part of this City-wide legislative map amendment and were not rezoned to the new Code because the existing zoning was already customized to that specific context and changing to the Denver Zoning Code would have disrupted that customization.
Some customized, specialized areas of Denver were rezoned to the Denver Zoning Code because the new Code created specific contexts for those areas. For example, the old B-8 Zone District became the Downtown Core Context and the old CCN Zone District because the Urban Center- Cherry Creek North Zone District.
The remaining land in Denver was examined to see what the existing built environment was. The common characteristics, such as street pattern, set back patterns and height patterns of each area were reviewed. Once the built environment was understood, the appropriate “Context” and the form based regulations within that Context were assigned to each of the areas that had similar characteristics. This potential zoning map was then vetted through a long public review process, giving all interested stakeholders the opportunity to discuss the appropriate zoning to be applied to each parcel through the City-wide legislative map amendment. The potential zone map was then refined. Once refined, the formal map amendment process started.
The formal map amendment process culminated in the passage of Ordinance No. 333, Series of 2010 that adopted the Denver Zoning Code language and adopted the Citywide map amendment. Ordinance 333 also addressed how properties not rezoned into the new Code are to be handled going forward.
7. Political Context. In addition to the planning “context”, a developer must understand the political context. The community vision is set forth in the plans, but how that vision is implemented and interpreted depends on the local politics. Who are the active neighborhood and business organizations? Who are the decision makers (legally 72 and practically) involved in the entitlement processes? What political issues have other projects had? These and other political matters should be understood before trying to navigate the entitlement processes including Plats and Site Plans.
III. Impact of Context on the Project.
Once a developer understands the local jurisdiction’s plans and the zoning and political context in which the property exists, the next step is to understand the developer’s project. This analysis should include the “vision” of the project, desired uses, density/intensity, height, setbacks, access points, utilities, parking, water quality and drainage, open space and other physical needs of the project. The financing and schedule should also be fleshed out. With a comprehensive understanding of the proposed project, the next step is to determine if all or portions of the proposed project can meet the property’s “context”. This analysis is critical as it is easier, quicker and cheaper to accomplish all or as much of the project as possible under the existing context than to try to change the context or any existing entitlements within that context. A conversation with the local government and the neighbors at this time is helpful to understand the politics of the project and the impact politics could have on obtaining approvals of Plats, Site Plans and other entitlements.
Once there is an understanding of what parts of the project can be done under the existing entitlements and the politics of the project in light of the “context,” the developer needs to analyze if it is best to: (1) alter the project to fit into the current context and entitlements; and/or (2) seek to modify the regulatory context of the project through a variance or map amendment; or (3) not proceed with the project at all. There are pros and cons to each of these options so the process, requirements, timing and politics of each option must be understood.
If it is decided that the project, modified or not, is still to be pursued, then required entitlements, including Plats and Site Plans, must be obtained.
IV. Site Plans.
Site specific development issues typically arise at the Site Plan phase of the entitlement process. Site Plans are project specific plans where most of the required development detail is set out. The Site Plan must show compliance with all laws, rules and guidelines that are applicable to the project. It is the Site Plan that draws together the vision of the Comprehensive Plan as refined by a Small Area Plan, the zoning, the plat and all other aspects of the jurisdiction’s development codes. The Site Plan is the culmination of the development entitlement process. A building permit may be issued upon Site Plan approval.
1. Submittal Requirements. Virtually all jurisdictions have regulations that contain the procedure and the list of requirements for Site Plans. Generally, the requirements are so intricate that they require a civil engineer, planner and landscape architect to address all of the required elements. Site Plans must address, at a minimum, adjacent uses, grading, drainage, pedestrian circulation, streets, access points, location and layout of off-street parking, trash facilities, vehicular circulation, arrangement and orientation of buildings, arrangement of signs and lighting devices, open space and plazas, landscaping and screening, access for the disabled, and special conditions and restrictions.
2. Site Plan Review. The specific Site Plan review process will be set forth in the jurisdiction’s development regulations. The review is usually done by an interdisciplinary group of government and utility staffs, including planning, zoning, public works, fire, water, wastewater and parks and recreation. In Denver, the Site Plan process is led by a project coordinator. Some jurisdictions require that public outreach be done prior to Site Plan approval. Public comments may lead to changes in the development itself or changes in the Site Plan to mitigate the public’s concerns.
3. Typical Site Plan Issues.
(a) Traffic: The amount of traffic the proposed development may generate must be studied and traffic impact studies submitted. This information is used to determine road cross sections, any exactions needed, traffic signalization, and pedestrian elements.
(b) Access: This will include the number of access points, turn lanes, and traffic signals.
(c) Architectural Character: This may include issues of compatibility of design with the project’s neighborhood context. Owner Associations or governmental design review committees may be involved in this review.
(d) Buffering of Adjacent Properties: Adjacent properties will be analyzed and conditions may be placed in Site Plans to address concerns from adjacent property owners.
(e) Landscaping: Landscaping plans of the entire site, including streetscape, must be submitted.
(f) Nuisance Factors: Conditions may be placed in Site Plans to mitigate noise, odor, hours of operation and after impacts of the project.
(g) Utilities: Wet and dry utilities will be addressed in the Site Plan. Some of these issues include what utilities are needed for the project; location of existing utilities on- and off-site; land rights needed to bring utilities to the site; and the need to relocate or upgrade existing utilities. Storm water requirements include grading, detention and retention ponds and outlets, floodplain, and water quality have a large impact on projects, so close attention must be paid to these Site Plan requirements. In addition, many jurisdictions are moving to regional detention facilities. Use of these regional facilities and the impact that it has on the Site Plan will need to be addressed.
(h) Existing Site Features: Tree preservation, historic features and archeology matters will be addressed in a Site Plan.
(i) Open Space: Issues relating to the amount, location and design of onsite open space and connectivity to community recreational amenities will be addressed.
(j) Required Exactions:
(i) If not handled in the Plat, the amount, location, and type of conveyance of land for roads, open space, storm water and other utilities will be determined. Governmental exaction may include requirements to convey land to the government for roads, utilities and parks; to construct roads, parks storm and sanitary sewers and water quality facilities. Some jurisdictions also require development to provide affordable housing or pay a fee in lieu of providing such housing.
How far can the government go in exacting land or facilities from development? The law and regulations of the last 100 years have moved from mere nuisance control to a much farther reaching approach, but how far can the exactions and regulations go? Land use law has a concept of a sliding scale for how much a government can regulate. The more the activity is related to a threat to the public health and safety, the more governments can regulate that activity. The less related to health and safety and more related to public welfare (like aesthetics), the less the government can regulate that activity.
The United States Supreme Court has developed two tests to determine how much an activity can be regulated by a government. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the Supreme Court held that there must be an “essential nexus” between a legitimate governmental interest and the regulation or the permit condition. The Supreme Court, in Dolan v. City of Tigard, 512 U.S. 374 (1994), went on to hold that the regulation or condition must be “roughly proportional” to the impact of the proposed development activity. The regulation or condition must be reasonably related to the impact of the development. A precise mathematical calculation is not required. The more the governmental interest is related to health, safety and the elimination of public nuisances (a legitimate government interest), the harsher the regulation or conditions can be. The more related the regulation is to “curing” the impact caused by the activity being regulated (the nexus), the harsher the regulation or condition can be.
That is the legal “box” governmental exactions, permit conditions and regulations must fit into.
(ii) Deeds and Easements – Required exactions and land rights for utility and other infrastructure needs will be accomplished through deeds and easements.
(k) Environmental Matters: Environmental standards for the land containing infrastructure to be conveyed to the government upon completion will be set during the Site Plan process. Typically roads and wet utilities are installed by the developer and then the land with the utility will be conveyed to the appropriate governmental entity or utility to own and operate. Prior to conveyance, the land will need to be environmentally remediated to meet state and local standards. Denver usually requires land to meet “residential standards”. This environmental remediation can be costly depending on the nature and location of the contamination and the type and location of the infrastructure. If possible, avoid contaminated land by moving the infrastructure to a less contaminated location. Buyer should negotiate environmental liability with the Seller in the Purchase Agreement.
(m) Site Plan Related Documents:
(i) Deeds -- If not conveyed by plat as part of the Plan process, to be conveyed by a special warranty deed subject to only those matters accepted to the jurisdiction. Pre-existing utility easements are usually not acceptable due to franchise considerations. A title policy conveying the conveyed land is often a requirement. Once the land is deeded to the government, the land is then dedicated as right-of-way or otherwise held for the intended public purpose.
(ii) Utility Easements -- Easements will also be granted during the Site Plan process. If not already put in place through a Plat, Utility easements to the utility providers will need to be negotiated and recorded. Denver, as the utility provider for storm water and sanitary sewer, require storm and/or sanitary sewer easements for all public lines installed within the Site Plan area. In addition, if there are private wastewater facilities, Denver requires recording a Permanent Non-Exclusive Easement (“PNEE”) that grants the City the right, but not the obligation, to repair and maintain private wastewater systems if the developer does not.
(iii) Fire and Emergency Access Easements -- If not addressed in the Plat and the project is designed so that fire and other emergency vehicles cannot get to all parts of the project from public rights-of-way, a fire and emergency access easement may be required.
(iv) No-Build Easements -- Most building codes require that buildings must either have a fire rated walls with no openings or have a certain amount of clear space between the building and the property line. The Building Code requirement often conflicts with “build to” Zoning Code requirements. Zoning Codes often require buildings to be built within a certain distance of the property line. The “build to” line is often five (5) feet from the property line. The Building Code fire rated wall distance is often ten (10) feet. Therefore, if the adjacent property is not a dedicated right-of-way, the adjacent property owner will need to grant an easement to the City or the building owner that provides that nothing can be built within a five (5) foot “no-build zone.” Creating this no-build zone easement is not a problem unless the adjacent property owner is not the developer of the project. If there is a different owner of the adjacent property, the developer will need to negotiate this No-Build Easement with language that satisfies both the Building Official and the adjacent property owner.
(v) Public Access Easement. – More and more jurisdictions are requiring projects to meet certain public open space requirements. Because local jurisdictions often do not want to own, or more importantly, maintain the required open space and yet want that space to be publically accessible, Public Access Easements may be required. These easements, usually granted to the local jurisdiction and the general public, ensure that the required open space is always publically accessible and designed and maintained in accordance with governmental standards,
(vi) Easement Relinquishments, Right-of-Way Vacations – In addition to granting new easements and conveyance of land for new rights of way, developments often need to terminate existing, but now unnecessary, easements and right-of-way. This is done by easement relinquishment from utility easement holders and vacation of existing right-of-way by the local jurisdiction.
(vii). Development Agreements – The myriad of issues that arise during the Site Plan and Plat process may not be able to be resolved by notes on the Plat and Site Plan or by deeds and easements. In this case, the developer and the jurisdiction may need to enter into a Development Agreement to address these issues.
Site Plans are where project implementation hits the platted road. Issues not addressed in the Plat or that might arise during the Site Plan process need to be thought about as early in the development process as possible especially if a real estate closing is dependent on approval of a Site Plan and other entitlements. Raising and solving these potential Site Plan issues early and often will make help the Site Plan and other entitlement processes go quicker and cheaper, leading to a smoother landing when the vision meets the platted road.