Government Affairs Update

August 2019

Barbara Koelzer, Regional Government Affairs Director
[email protected]








Boulder County
Oil and Gas Moratorium: It didn’t take long for the County to change its mind about an oil and gas moratorium. In anticipation of a new drilling application from Crestone Peak Resources, last week the Boulder County Commissioners voted unanimously to adopt an emergency moratorium on processing applications from oil and gas operators.

“Oil and gas development is one of the biggest issues that we hear about from constituents,” Boulder County Commission chairwoman Elise Jones said. “I think it’s our duty and responsibility of commissioners to do everything we can to protect the health and safety of our residents and our environment.” No public comments were taken prior to the commission’s decision Friday. A public hearing is set for July 16.

Revisions to Short-Term Rental Regulations: Boulder County planning staff asked the Commissioners for approval to draft revisions to the County’s short-term rental (STR) regulations last week. The existing use provisions for STR were created in 2008, and staff said the use provisions need an update. They also referred to “consistent input from county residents (particularly in the mountain communities) that the existing regulations do not adequately address the impacts of STRs.” Staff will explore updating use provisions related to owner- occupancy, business registration, neighborhood compatibility, rental frequency, and preventative safety. In addition, the distinction between the Short-term Dwelling Rentals and Bed and Breakfast uses needs clarification.

In response to a question from Commissioner Deb Gardner, staff said the Housing element of the Comprehensive Plan will be presented in September and the STR revisions will be addressed after that.

Pilot Program for Middle Income Downpayment Assistance: On July 23 the City Council agreed on guidelines for a $10 million pilot downpayment assistance program designed to help middle-income residents buy homes. The pilot is part of the City’s 2016 Middle Income Housing Strategy and resulted from a proposal crafted by Councilmembers Bob Yates and Sam Weaver.

The program is designed to help prospective households who make up to 120 percent of the area median income (AMI) or between $82,000 – $123,000 for a three-person household. It will require the homebuyer to put down five percent on the cost of a home and the City will provide a loan of up to $200,000 or 23 percent of the home value in return for placing a deed-restriction on the home along with a two percent cap in appreciation.

The Council was asked to provide direction on several policy points. The first decision related to the amount of appreciation a homeowner would be allowed to recoup. They decided on two percent, recognizing that the percentage might have to increase if no residents apply because of the low appreciation cap.

The second decision involved the type of debt the City should utilize to fund the seven-year pilot program. Per staff’s suggestion, the Council agreed that a line of credit would be the best option because the City will only need to borrow based on the number of successful applicants. TABOR (Taxpayer Bill of Rights) requires the City to put the issue to the voters and staff was directed to draft ballot language, presumably for the November election.

Council Discusses Wildlife Plan: The City Council discussed revisions to the Wildlife Management Plan (WMP) on July 16 but made so many changes that it will have to come back before the Council again for final adoption. The Council was particularly concerned with the impact of development on wildlife, in particular setting adequate setbacks for riparian areas along the St. Vrain River and other sensitive areas, as well as prairie dog management. When the WMP is approved, it will require a variety of additions to the City’s Land Development Code related to riparian setbacks, wetlands, and development review procedures.

In his comments, Councilmember Tim Waters noted that he wants the Natural Resources Department to comment on every development application received by the City. He also mentioned his support for hiring a new wildlife planner to review all applications. (The new planning position will be considered as part of the 2019-2020 budget process.). Wildlife and environmental issues have a renewed emphasis with this Council.

 Council Changes Decision on Mountain Brook Appeal: The July 23 discussion about the Mountain Brook Preliminary Plat Appeal was fascinating. Mayor Brian Bagley requested that the item be added to the agenda for reconsideration after a 5-2 July 9 vote to send the project back to the Planning & Zoning Commission (P&Z). On the 23rd the City Council voted to overturn the decision it made on July 9, in essence denying the appeal by two Boulder County residents on Rodgers Road and approving the project’s preliminary plat. Polly Christensen and Aren Rodriguez voted against the overturn, while Mayor Bagley and Councilmembers Bonnie Finley, Joan Peck, Marcia Martin and Tim Waters voted for it.

The article in the Times-Call offers a good summary of the discussion but left out some important comments that are worth sharing (see the link to the Times-Call story, below). Mayor Pro Tem Polly Christensen, who had made the original motion on July 9 to send the project back to P&Z, accused Mayor Bagley of using shady tactics to ensure another vote was held on the decision. She also questioned the integrity of Councilmembers Tim Waters and Marcia Martin, saying they should recuse themselves from the vote. She reminded everyone of the upcoming City Council election in a not-so-subtle threat. Bagley and Waters are up for re-election this November.

Waters and Martin made it clear that they at least understand how the appeal process is supposed to work. A P&Z decision could only be overturned if certain conditions were met. Both agreed that the appellants did not make that case. It was encouraging to see them stand up to intense pressure by emotional County residents to meet the greater needs of Longmont.

This project will pay the cost for three new badly-needed collector roads in southwest Longmont and add 110 single-family homes, 149 townhomes, eight Habitat duplexes, as well as a 25-unit village for homeless veterans. The preliminary plat was approved by P&Z with a host of conditions, which the developer will have to meet “before a single home is built,” to quote Tim Waters. The project will be the subject of additional scrutiny by staff as it moves through Longmont’s development process.

Longmont City Council upholds preliminary plat for Mountain Brook housing proposal

Development Moratorium Nixed: On June 25 Councilmember Joan Peck made a motion to lift the development moratorium in Longmont, but since the Council had never actually imposed a moratorium, the motion was unnecessary, said Mayor Brian Bagley. Peck said she’d heard concerns from developers that prompted her to make the motion.

Councilmember Tim Waters said he never intended to ask for a moratorium. He said his intent was to ask for a “time-out.” He argued the reporting on previous discussions was confusing. Mayor Pro Tem Polly Christensen wanted clarification from her council colleagues, saying, “does this mean we can never have a delay on development?” Ultimately, the Council voted unanimously to approve a motion stating there would be no moratorium now, which hopefully ends this confusing and damaging discussion.

Affordable Housing Project Moves Forward: The City Council gave final approval in a unanimous vote for an ordinance approving the vacation of access and utility easements for the Kinzie project, otherwise known as Lot 2, Main Street Center, in spite of neighborhood opposition.

In addition, the Council also approved a resolution to accept the developer’s voluntary agreement to satisfy Longmont’s inclusionary housing requirements (IZ). The project, which will now be known as 2021 Kimbark, will include 44 rental studio apartments. The developer has offered to deed-restrict 10 of those units for lower-income residents. Mayor Brian Bagley was the sole no vote on the resolution. He said the units (300 SF) were too small and he worried about “sticking poor people into shoe boxes.”

2021 Kimbark is one of the first developments to test the Council’s resolve to get more affordable units in the city. The vacation easements and affordable housing agreement are the only aspects of the project that require Council approval. The development application is currently being reviewed by a staff team, which will provide its recommendation to Community Development Director Joni Marsh. She will have the authority to decide if the project is approved.

Colorado Law Hindering SB-181: According to the Denver Business Journal, state law has emerged as a surprise obstacle to regulators hiring administrative law judges to help make decisions about permits for drilling new oil and gas wells. Senate Bill 181 included a provision allowing the Colorado Oil and Gas Conservation Commission (COGCC) to hire administrative law judges, or ALJs, and have them review some permit applications, resolve mineral rights disputes and other oil and gas related issues.

Using ALJs would allow the COGCC staff to tackle a backlog of more than 6,300 well-drilling permit applications built up at the agency. It also would free the COGCC to undertake regulatory rulemakings required by SB-181.

But the COGCC says it can’t hire ALJs because Colorado’s administrative procedures law doesn’t authorize the COGCC to employ them. The COGCC likely will ask the state legislature to amend the administrative procedures act and allow the COGCC to hire ALJs, but the legislature is not in session to amend state law until January. A spokesman said the commission is on hold until that happens.

At the end of June, the COGCC pressed ahead this week with two days of public hearings about its proposed procedural changes for permitting decisions.  After hours of testimony, the COGCC ended the hearings without deciding on the rule-change proposal, postponing a vote until its July hearings at the earliest.

Building Permit Caps: In a July 2nd special election Lakewood voters approved a cap on residential construction that will be among the strictest in the metro area. Almost 53 percent of voters favored the cap, with 47 percent against it. Question 200 limits the construction of new homes and apartments each year to no more than one percent of the existing housing stock in the city and would require City Council approval of large development proposals.

In the meantime, a similar ballot measure for a more widespread building permit cap that would impose a 1 percent cap on new homes throughout metro Denver for 2021 and 2022 received approval from the Colorado Secretary of State’s title board last week. Now known as Initiative 109, “Limits on Local Housing Growth” supporters may collect signatures to get the question on the November ballot. If this sounds familiar it is because the same group tried to get a similar question on the ballot last year.

NAR Comments on FHA Loan Sales: NAR sent comments to the Federal Housing Administration (FHA) in response to an advance notice of proposed rulemaking and request for public comment on the FHA Single-Family Loan Sale Program (the Program). NAR expressed concern that the prior versions of the Program led to a decrease in homeownership and an increase in single-family rental housing in many communities across the country.

In the letter addressed to FHA Commissioner Brian Montgomery, NAR urged FHA to ensure that loan sales prioritize loan purchases that lead to owner-occupied homes over absentee landlord rental houses. NAR supports arranging loan sales in small, geographically specific batches prioritizing sales to entities with demonstrated interest in a community, such as local non-profits. FHA must consider any potential conflicts of interest by purchasers that could lead to harmful outcomes. In addition, FHA should work to ensure any secondary sale of a loan by an investor to another investor would prioritize final sale to owner-occupants and continue to release performance and outcome data on each pool of loan sales.

NAR Supports Credit Reporting Clarity Bills: NAR sent a letter to Chairwoman Maxine Waters in support of multiples bills that were marked up by the House Financial Services Committee on July 16, 2019. The bills provide access to free credit scores, consistent help for borrowers in distress, and the ability to remedy errors in credit reports among other factors. The bills include:

  • R. 3618, the “Free Credit Scores for Consumers Act of 2019”
  • R. 3621, the “Student Borrower Credit Improvement Act”
  • R. 3622, the “Restoring Unfairly Impaired Credit and Protecting Consumers Act”
  • Representative Adam’s “Improving Credit Reporting for All Consumers Act”
  • Representative Lynch’s “Clarity in Credit Score Formation Act of 2019”

NAR Briefs Congressional Staff on Data Privacy Priorities: Recently NAR staff participated in a congressional staff briefing hosted by the Main Street Privacy coalition to educate them on how main street businesses collect and handle customer data.  The coalition set forth six principles that they wish to see in any federal data privacy law.

These principles include:

  • No Exemptions. Every industry sector that handles consumer information should have legal obligations to protect consumer data under the law.
  • Direct Legal Responsibilities.  Small businesses should not need to apply privacy standards on other businesses through contracts.  All businesses that handle private data should have their own, direct legal obligations under the law.
  • Responsibility for Conduct.  Any privacy law should make businesses responsible for their own conduct – and not expose other businesses, including contractors and franchises, to liability for the transgressions of a business partner. Finally, we believe that any privacy policy should include a data security standard for businesses as well as a uniform process for notifying customers about data breaches.
  • Allow Customer Services and Benefits.  Any federal data privacy framework should preserve the ability of consumers and businesses to voluntarily establish mutually beneficial business-customer relationships and set the terms of those relationships, thus maintaining the option to offer rewards and loyalty programs.
  • Consumer Transparency.  Consumers deserve to know what categories of personal data businesses collect and how that data is used.
  • Federal Standard. There should be federal policy on data privacy that protects consumers in a nationwide, uniform and consistent way.

Supreme Court Ruling Protects Property Rights: On June 21, the Supreme Court issued its ruling in the case of Knick v. Township of Scott, a decision which NAR believes will lead state and local governments to be more thoughtful and deliberate when developing laws or regulations that could infringe on Americans’ private property rights.

Specifically, Knick v. Township of Scott declared that plaintiffs who have accused local governments of violating the Takings Clause of the U.S. Constitution may proceed directly in federal court rather than first litigating in local circuits, overturning a 34-year old precedent set by a 1985 Supreme Court ruling.

“A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it,” the Court’s opinion reads. “The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. In sum, because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time.”

Property owners had previously been required to exhaust all remedies to receive just compensation for private property seizure in state court before they could escalate the case to federal court. Going forward, property owners will have both state and federal court available to redress their property rights. NAR expects this new development to prompt state and local governments to be more strategic regarding takings, especially in the areas of land use planning and environmental regulations, in order to avoid the uncertainty of litigation in federal court. Considerations surrounding compensation should intensify and increase, as well.

President Creates Affordable Housing Council: President Trump signed an Executive Order June 25th to create a Council on Eliminating Regulatory Barriers to Affordable Housing. This Council will focus on eliminating impediments that restrict access to affordable housing, such as zoning laws, environmental regulations, building codes and lengthy permit procedures. The Council will consist of members from eight Federal agencies. These members will engage with other government leaders, elected officials and private sector stakeholders to identify and eliminate the “regulatory obstacles that impede the production of affordable homes.”

Secretary Ben Carson will lead the Council. The Departments of Treasury, Agriculture, Interior, Labor, Transportation, Energy and Environmental Protection will be represented on the panel. NAR anticipates the Council will create opportunities to provide its members with information and input related to this issue.  NAR will distribute updated information on an on-going basis as the work process of the Council is developed.

Colorado Congressman Introduces Affordable Housing Bills: Rep. Joe Neguse (Boulder – Congressional District Two) recently filed two bills intended to protect affordable housing and its financing. One of the bills (HR 3478) would remove a requirement that a property must be owned for 10 years before a federal low income housing tax credit could be used to purchase the property for affordable housing. The other bill (HR 3479) would dictate that properties that receive the low-income housing tax credit remain affordable for 30 years, rather than allowing a release and conversion to market-rate housing at 15 years. Neguse in a written statement said the lack of affordable housing in communities across the county is at a crisis level.

Comply with the Do Not Call Act: Frustration with telemarketing calls has reached a new high. Do you know how to ensure you comply with federal regulations known as TCPA (Telephone Consumer Protection Act)? Here’s a short video that explains it.​

CFPB Releases Mortgage Closing Scams Tool: The Consumer Financial Protection Bureau (CFPB) recently released its “Mortgage Closing Scams(link is external)” tools to inform consumers about wire fraud scams that commonly occur during closings. The tools include a Mortgage Closing Checklist(link is external) to help guide consumers through the home buying process and things to beware of such as being mindful of phone calls and conversations that you have during the home buying process and to never email any financial information.

The tools were also developed to be shared by the real estate industry to improve consumer education on how to protect against mortgage phishing scams, which includes relying on your trusted real estate professionals, lenders, or settlement agents, to confirm any payment instructions. In the FBI’s recent 2018 Internet Crime Report, victims loss over $149 million as a result of fraud in real estate transactions.  Through the release of these tools, the CFPB is committed to alerting consumers about necessary steps to take during the home buying process and illustrates continued investment in consumer protection.

USDA Loan Rule Adopted: On June 21, 2019, the U.S. Department of Agriculture (USDA) Rural Housing Service (RHS) published a final rule adopting changes to the RHS guaranteed and direct single-family loan programs. The changes revise the definition of very low-, low-, and moderate-income to allow for a two-tier income limit structure (also known as income banding) within the single-family housing direct loan and grant programs. Fore more information click here:

I’m on Twitter! Follow me @NoCoGovtAffairs.