Review of the Rocky Mountain Land Use Institute 2021

by Paul Moberly, AICP, PCED Editor, Western Planner

Like most things in the time of COVID-19, the 2021 Rocky Mountain Land Use Law Institute adapted to the circumstances with a virtual format spanning several weeks. The form may have changed but the top-tier presenters and quality content did not—RMLUI never disappoints. 

RMLUI and Western Planner have a partnership spanning several years joined over a common focus on planning and concerns about how we develop the intermountain West. For those who couldn’t attend, the following are summaries from a selection of the sessions.

Legal Updates in Western Land Use Law

David Foster (Colorado)
Partner, Foster Graham Milstein & Calisher, LLP

Jessie Lawrence (New Mexico)
Attorney and Mediator, Law Office of Jessica Eaton Lawrence / Lawrence Meeting Resources

Jason Morris (Arizona)
Partner/Attorney, Withey Morris, PLC

Sarah Schindler - Moderator
Professor of Law, University of Denver Sturm College of Law

A benefit of RMLUI is panel discussions that contrast our various state approaches to similar issues. In the legal updates session, the group discussed anti-growth politics and the legal movements occurring in several states. David Foster discussed Colorado, with its strong local controls, and the 1041 powers, so named by HB 74-1041, which gives local governments the ability to “identify, designate, and regulate areas and activities of state interest through a local permitting process (https://cdola.colorado.gov/1041-regulations-colorado).” This recently came to a head in a recent case upheld in district court where Larimer County denied permitting a pipeline project and the City of Thornton sued to allow it.

Jessie Lawrence discussed New Mexico’s issues and how sometimes code differences between adjacent jurisdictions can cause issues, relating the experience of Santa Fe city with an older, more growth-restrictive code juxtaposed with Santa Fe County and their more growth-friendly code. Like most planning issues, these types of conflicts weave complex impacts of housing affordability, sprawl, community character, and value creation.

Arizona’s Jason Morris brought up the issues surrounding building moratoriums. After Gilbert declared a single-family home moratorium, the state pushed back with new legislation requiring studies and an examination of economics and housing.

Shifting topics to affordable housing, Jesse discussed how Santa Fe had to relax its 30% affordable unit requirement during the Great Recession in order to spur development. They found that a menu of options to meet affordability goals makes a better approach when working with developers, including fee in lieu of units, the whole development at 110% AMI, or 15% of units at 65% AMI.

In Arizona, Flagstaff declared a state of emergency around affordable housing and now has an aggressive affordable housing program. They found that developers appreciate the consistency and predictability of ordinance-based regulations versus policies that require negotiation for each project.

David Foster from Colorado brought up that housing affordability is a complex issue and requires more complex solutions. There is a depth and diversity to affordability issues, including the number of bedrooms; affordability is needed at all unit sizes and all unit sizes are needed for affordability. Requiring unit sizes as well as removing restrictions on unrelated persons in units can help address affordability issues.

Turning back to growth restriction, the panelists discussed the role of historic preservation. In Colorado, David noted that non-owners can designate properties over the owner’s desires, stating that in his experience, he ends up negotiating with those seeking to stop development and not the city. In Arizona, historic preservation concerns are just a delay in development, as much of development is relatively new. There is, however, an increasing awareness of historic properties.

Another identified theme was corruption. There is increasing movement to evaluate, not only actual bias but the appearance of such. Jessie brought up the question of a county commissioner who had posted an op-ed stating their position would be on a development and why. On legislative questions, this may be a reasonable action; however, on quasi-judicial decisions, his action begs the question if he should have recused himself.

In Colorado, David brought up the question of campaign donations and, although the restrictive amount may be arbitrary ($4,000 vs $10,000), it may require an elected person to recuse themselves from a decision.

Jason from Arizona brought up how community opposition organizations can pop up overnight, some of which can be fraudulent. He noted that some of these sprouted up against marijuana dispensaries—not as neighbors against legalization and distribution, but competitors trying to push away the competition.

The session did not disappoint; the speakers were well-versed and thoughtful. Craig Call from Utah would chime in from the chat and it would have been helpful to have had him as a panelist as well to represent Utah.

Whose Home On The Range? Rural Housing Challenges and Strategies

Kurt Hibbert
Community and Economic Development Director, City of Blackfoot

Erik Kingston
Housing Resources Coordinator, Idaho Housing and Finance Association

Andrew Mentzer
Executive Director, West Central Mountains Economic Development Council

Megan McRae
Assistant to the City Manager, City of Sedona

Just like our responses sometimes to the housing challenges that we face in the West, after some technical difficulties, the session started moving forward. The recent phenomenon of Zoom Towns was just an acceleration of pre-COVID issues. However, available and locally accessible housing is an essential component of community building: as Jim Lewis, Blaine County Idaho Superintendent phrased it, “A resort community without housing for essential workers is just a resort.” Resort communities have fought the housing battle for a long time. Perhaps reframing the argument as a misallocated subsidy can help in this discussion. Erik Kingston brought up the story of a barista in Sun Valley commuting in from nearly two hours away; the price of that cheap coffee was subsidized by this person’s significant personal investment of time and meager resources.

The obstacles to address these issues can be ominous and seemingly insurmountable. It’s said that housing pays more than potatoes. This is particularly salient in parts of Idaho. In Blackfoot, Idaho, they recognized the economic development constraints of limited housing stock. Businesses couldn’t expand and hire workers because of a lack of housing. Their solution: tiny home developments.

In Valley County, Idaho, 70-80% of homes are non-primary residences and while COVID encouraged some to relocate to those second homes full-time, that doesn’t help the locals who have always stayed and struggled. Surveys showed that around a third of locals didn’t feel secure in their housing situation.

Valley County’s solution was to try incentivizing the conversion of second homes to long-term rentals. The program offers to pay the home’s property taxes for a year, gives the owner 25 bed nights at local hotels as well as the obvious rental income from the property, in exchange for changing their second home to a full-time monthly rental. It’s still in the early stages of development, but is a hopeful situation for so many who struggle to find available housing.

Sedona, Arizona has a similarly dire situation and is undergoing a transformation as a result. In an area where the average home price is $636,000, households with children have been declining for years, resulting in a school closer in 2018. Only 15% of city staff can actually live in the town they help manage and also disturbing is that 22.7% are severely home cost-burdened, paying 50% of their income on housing. In the midst of these challenges, many long-term rentals are being converted into short-term rentals (STRs), evicting their tenants and further limiting the stock of available rentals.

The city is working to address short-term rentals. They had prohibited short-term rentals from 1995 - 2016, but state law stepped in and stopped the prohibition of STRs. Now they are working at better managing and encouraging long-term rentals.

While these issues are not unique, the severity of how it is expressed in these case studies further reiterated the need for creative and significant action to be taken. Housing affordability continues to be a barrier to community and economic development efforts throughout the West. It is a wickedly complex and urgent problem; other communities may not be as cost-burdened as Sedona or stock-burdened as Valley County, but they soon may find themselves in similar situations without meaningful and proactive approaches.

Count Us In! Inclusive Planning and Design for Health, Mobility and Equity

Erik Kingston
Housing Resources Coordinator, Idaho Housing and Finance Association

Jeremy Maxand
Executive Director, Living Independence Network Corporation (LINC)

Dianna Willis
President, Idaho Access Project

William Voelker
Town Planner, Town of Cheshire

Barbara Kornblau
Professor; Occupational Therapy Program Director, Idaho State University

When we each look at a stretch of streetscape, we may focus on different parts depending on our proclivities. Cyclists see the bike lanes and look at how much protection is offered from traffic; parents of young children look at the sidewalk setting, crosswalk safety, and physical buffers areas to traffic areas with street trees. What if you instead were left to experience the landscape by touch, with texture changes and warning bumps to keep you safe?

Similarly, for many currently unimpaired, we don’t think about the uneven sidewalk as more than a minor inconvenience, but to someone who is mobility impaired, it can be a serious challenge. This pandemic has reminded us that everyone, including those with visual or mobility impairments, wants to enjoy the outside and has every right to public areas to do so. As we design and build our spaces, however, we can sometimes thoughtlessly exclude access by design simply because the needs weren’t considered thoroughly.

One example given in Boise, Idaho was a roundabout put in near a new development to safely direct traffic. Roundabouts are considered safer for pedestrians, but this particular situation had proved more difficult for cyclists. A reasonable design solution was implemented that routed cyclists up onto the sidewalk from their bike lane before the roundabout, channeled them across the crosswalk, then directed them back onto their bike lane. Conflict with pedestrians would be at a relative minimum and cyclist safety was increased significantly.

What they didn’t consider was the experience of a visually impaired person using a white cane. Without any cautionary yellow bumps at the interchanges (since these were for cyclists and are frustrating to them, such were not identified as necessary), someone relying upon a cane could walk right into the road without realizing it.

As planners and those engaged in community building, we should realize that many in our communities experience disabilities, and many more of us will age into them. Design that allows someone with mobility restrictions to better access will be more available to all groups including children and the elderly. Idaho Access Project performs thorough accessibility audits and we are similarly encouraged to examine public spaces, looking at the slopes, potential barriers, path accessibility, etc.

At the same time, discussions about accessibility should include those who understand the issues, as one panelist said, “Nothing about us without us.” As a wheelchair user, Jeremy Maxand knows firsthand about the challenges and has been active in civic life. He presented on “visitability” not just accessibility, after discussing his frustrations that his is the only house he could visit in his entire neighborhood. Universal design principles, similar to visitability, like zero-step entrances, doors with 32” wide clearance, and a wheelchair-accessible bathroom mean that people with mobility challenges can at least visit, if not live more comfortably. Particularly as our elderly populations increase, with more using walkers, canes, and wheelchairs, these principles will allow homes to be more accessible, visitable, and functionally resilient.

Beyond the Pandemic: Addressing the Silent Crises in Public Health & Food Security through Planning

Laurie Beyranevand
Professor of Law; Director of Center for Agriculture & Food Systems, Vermont Law School

Chris Duerksen
Senior Advisor, Clarion Associates

Jonathan Rosenbloom
Professor of Law, Vermont Law School

If we are what we eat, we should pay more attention to how we make it and how and where it is distributed. Industrialized production has numerous negative impacts: air and water pollution, antibiotic resistant bacteria, pesticide exposures, lack of worker safety—our system produces more than ample, cheap food.

Many of us were frustrated with the toilet paper shortages during the pandemic, but imagine if that was the case year-round and not just toilet paper, but fresh foods. Planners can do more to build food security through local zoning codes. The site, sustainablecitycode.org was highlighted several times to help us in our efforts. Sample codes are included each with a carrot (removing regulation) and stick (increasing regulation) principle. Current code examples from different sized jurisdictions from different areas are included. Some things we can do:

Supporting personal and community production including gardening, fowl and bees, composting, agricultural uses by right, community gardens, supportive fencing.

Increasing access to food by directly addressing food deserts (places without access to food) and swamps (places without fresh food access). Allowing things like agriculture overlay zones, farmers’ markets in a variety of districts, temporary farm stands, sale of fruit on sidewalks, limiting poor food sources (convenience stores), and encouraging grocery stores.

Conserving land for agriculture through approaches like subdivision set-asides for agricultural land, agricultural lots in PUDs, offsetting agricultural land loss stemming from new development, cluster development to preserve open productive land, and protection of pollinators from habitat and chemical exposure.

To this last point, Chris Duerksen sounded the alarm on what he calls the “insect Armageddon.” Bee losses are well-publicized, but other insects like butterflies, including the famous monarch butterfly, are in massive decline—going from populations of several million in the 80s to less than 2,000 left now. This is happening across the globe and is a major concern as insects play important roles as pollinators, food for other species (similar declines in birds have been seen), pest controllers, and decomposers. Many of these roles are essential for our agricultural processes.

In this disruption and destruction, climate change plays a role, but also the wide and indiscriminate use of pesticides and our converting of natural habitat to built habitat. As planners, we can protect and restore habitat, perhaps encouraging certain landscapes and open space preservation through density bonuses, encourage phasing out of pesticides (Nevada and Utah allow local control over pesticides and herbicides), promote more compact development to preserve habitat, and work to limit climate change.

Will COVID Change Where and How We Live?

John Covert
Regional Director, Zonda Advisory

Arthur Nelson
Professor of Urban Planning & Real Estate Development, University of Arizona

Gene Myers
CEO, Thrive Home Builders

Despite the significant shift toward remote work during the pandemic, the elite group of panelists during this session reiterated that cities aren’t done. Cities have come back time and again after plagues past and present, and after other disruptions like war, bombings, and terrorism.

While numerous stories of max city exoduses from people fleeing cities were reported, the actual number of people who moved was less than would be expected under normal circumstances. Of those that moved during the pandemic, 15% said COVID was the primary reason; 85% would have moved anyway. Housing affordability was a factor—increasingly low interest rates were likely a bigger driver for people buying houses than the pandemic. Only about 3.6% of people moved because they didn’t feel safe due to COVID-19. They predict that continuing previous trends, downtowns will grow increasingly unaffordable in the coming years.

Likewise, offices will re-emerge. People are social creatures; furthermore, the interactions in offices have fostered teamwork and innovation for decades. Some companies, including tech giant Google, are calling for workers to come back to central offices. Employers have concerns about productivity, efficient communication, and loss of company culture. On the other hand, workers want to be near their boss to increase advancement opportunities, receive recognition, network, and share information informally.

While the office isn’t dead, it is going to change. Open office concepts will likely close in and allowing more privacy, separation, and distance. More people also will work from home than before—survey results show that a majority see a hybrid model as most desirable.

COVID, as it was said in other sessions, merely accelerated many of the trends previously in motion pre-pandemic. For retail, this became more obvious, as older formats and marginally profitable companies closed their doors. The rallying cry of retail remains what it was pre-pandemic: adapt or fail, and stores must be Amazon-proof. The panelists foresee community centers becoming more diverse in their offerings, with a mix of public, private, and residential uses—a trend that was developing pre-COVID.

In an examination of the Denver area, demographics are still largely influential. Denver is young and most of the top-selling projects in the area are further out from the core. This seems to reflect old trends of “driving-till-you-qualify.” However, these developments reflect the different preferences of millennial homebuyers: 50% of these developments are of higher density and have mixed uses. This bubbled urbanity is in response to the demand for urban lifestyle amenities while still affording homeownership.

Architects are responding similarly. The homes themselves are designed to be smaller, flexible, and functional. There are multiple work/study spaces, package delivery spaces outside, small space-efficient bathrooms, and flexible spaces for home gyms or larger home offices. More socially and environmentally conscious builders are pushing net-zero energy homes, solar power generation, healthy indoor air, and more consciously sourced and less impactful materials. These amenities however come at an estimated 7-10% premium.

While homes, offices, and communities are adapting, the underlying draws of connection and interaction will continue to push demand. Consumers don’t need to go to movies, go out for fine dinners, leave the house to work, go downtown to shop, or even catch the bus to attend class; however, as in the past, many still will.

Pandemonium or Positive Change: Our Post-Pandemic Downtowns

John Gambrill
Managing Director, Gensler Office

Matthew Lister
Partner & Managing Director, Gehl Associates

Chris Shears
Partner, Shears Adkins Rockmore

Brad Segal
President, PUMA

The central theme of this session was, the pandemic was more an accelerator of current trends than a game changer. From retail closures to telecommuting, even the protests for racial justice were an acceleration of a previous trend.

While unemployment spiked heavily, concentrated among certain groups and industries more than others, recovery should happen quickly. The nature of work is changing however, again following long-term trends. Work/home flexibility obviously has emerged, but also the standard 9-5 five-day workweek is changing. From surveys, workers will want a hybrid model and will likely not be in the office 100% again. When they return to the office, they want more privacy, with a trend towards private offices, not open-concept or shared spaces—they want their own desk.

Their drive coming back to the office is not to increase focus (although employers likely desire this for them), but to meet with colleagues, face-to-face, and be part of a community. Furthermore, work is a social hub with roughly 50% of workers socializing outside the office. This will revive post-COVID.

Long-term trends in retail experienced significant acceleration through the pandemic. COVID was euthanasia for outdated formats like department stores and suburban malls, as well as for outdated and unadapted trended-out brands. Unique experiences and authenticity will remain essential tools to help Amazon-proof retail. Shopping to a significant extent is a social experience, and will continue to be.

Social equity, racial justice, and income inequality will continue to be big issues as Millenials and Gen Z solidify their generation’s activism. Older generations are more cautious and will look for multigenerational housing—a trend previously seen before the pandemic. Young and old generations are drawn to downtowns, and affordability will be a critical economic and social stabilizer now and in coming years.

While the protests for racial equity accelerated, so will calls to address climate change. The pandemic showed many of those living in cities with previously poor air quality what better air quality was like. This glimpse will only fuel demand for the return of clean air and other environmental protections.

Other areas like higher education will need to adapt to alternatives outside of the standard four-year degree to service demand for less debt, more flexibility, and more marketability. Public health will increasingly include designing healthy public spaces. The panelists saw that perhaps a realignment is happening, again reinforcing previous trends, in a generational shift away from individual prosperity and towards a communal good. The Federal stimulus packages reflect this, as does the response to the insurrection, and views on community cultures.

For downtowns, several trends are emerging or strengthening. Downtowns are increasingly diverse and young. As first-tier cities grow more and more unaffordable, second-tier cities are emerging as more affordable and with better quality of life. Public spaces are innovating in design and function.

On that point, Matthew Lister of Gehl Associates reiterated that cities are social vehicles and should focus on making places that foster and nurture human connection. For Gehl, the best way to understand how to do this is to watch people how they use public spaces.

Public spaces didn’t die, they became more important. During the pandemic, mental health was the big reason people came out to public spaces. Older people (65+), especially those living alone, sought out social activity at a higher rate. City centers increased in both pedestrian activity and bicycle activity for the most part. Three-times more kids and 17x more infants used public space, and there was more play in general in public spaces. For public spaces, like streets and plazas, design and quality matter: vegetation, street trees, building scale, urban furniture, and active ground floors help contribute to a quality sense of space. Private food and beverage establishments can also be part of that public space and its behaviors—with the right ingredients, nothing is impossible. The more malleable streetscapes are, changing functions throughout the day, the more vibrant they will be.

The panelists warned to prepare for the roaring twenties again: there will be a huge drive to socialize after the pandemic subsides. Policy should be adaptable and stay in a place of learning—keep the options open and stay soft.

Economic Recovery on Main Street

Brian Lewandowski
Executive Director, University of Colorado Boulder Business Research Division

Katherine Correll
Executive Director, Downtown Colorado Inc.

Lindsey Wallace
Director of Strategic Projects & Design Services, National Main Street Center, Inc.

Cheney Bostic
Principal & Owner, StudioSeed

Brian Lewandowski provided a data overview of the pandemic. As generally understood, there were major job losses in this recession: we lost 14% of all jobs, and are still at 6.2% as of this presentation. These losses were not standard across geographies (Utah and Idaho actually gained jobs). Losses were not standard across industries, as clothing, department stores, restaurants, and tourism-related industries saw big drops, while sporting goods, building materials, and furniture increased. Losses also weren’t standard across groups: youth and young adults were hit the hardest, less educated more than more, lower-paying jobs more than higher-paying, women more than men, and certain racial and ethnic groups over Caucasians. Many of these jobs have come back, but some industries remain suppressed. Thankfully there wasn’t a jump in bankruptcy or in foreclosures, although it remains to be seen if this will increase from the drag on the economy.

Teleworking accounts for 22-24% and obviously varies per sector. Net migration is still driving growth in the west, with an average in the Rocky Mountain Region of 1.4%. Amenity-poorer rural areas are generally still losing population.

Turning to Main Street, the central theme was asking what do we want versus what we allow to be built. We desire thriving, complex, and multi-functional downtowns, but our zoning and code push for strip and more sprawling edge development. During COVID we adapted with creativity, this should continue. The following were suggestions from the panel:

1. Regulate with an EcDev lens that is geared towards supporting small businesses first

a. Codes are written for large businesses, most incentives are geared towards big business

b. Education is key

c. Be creative to help small businesses

2. Address Zoning

a. Land uses - amend and eliminate what you don’t want

b. Temporary uses - make uses legal and test for a time

c. Parking - can kill projects, exempt requirements

d. Proportionality - ensure improvements are proportional to the investment

e. Non-conformities - careful that non-conforming doesn’t kill projects

3. Engaging Community

a. Block party

b. Youth engagement