Annexation by Vote
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Boulder Valley Comprehensive Plan
View the latest version of the BVCP (PDF), updated in December, 2005.
How land use is organized in the BVCP
The BVCP encompasses the whole Boulder Valley. This land is divided up into three areas. Area I is what is within the Boulder city limits. Area II is outside the city limits and may be considered for annexation. Area III is also outside the city limits, and is divided up into two portions – the Rural Preservation Area, where additional urban development is not allowed (for the most part), and the Planning Reserve Area, parts of which could either be moved to the Rural Preservation Area, or moved to Area II and considered for annexation. Click here (PDF, 15 MB) to view the Area I, II, III map.
How are changes made to the BVCP
Moving land from Area III to Area II currently requires approval of the County Commissioners, the County Planning Commission, the City Council and the City Planning Board under current procedures.
The City Council may annex from Area II without approval of the County Commissioners, County Planning Commission, or the City Planning Board.
The BVCP also provides "land use designations", which are not zonings but are supposed to determine the general character of development in many areas. These may be changed by the City Council and the City Planning Board at any time under current procedures.
It's important to remember that the BVCP is only an agreement between the County Commissioners and the City Council. It can be changed at any time, and thus depends on these entities to have any power. The citizens have no power to enforce it.
BVCP Questions and Answers
There are many misconceptions about the BVCP and annexations; below we try to clear up some of them.
Doesn’t the Boulder Valley Comprehensive Plan require the City to annex Area II?
The answer is unequivocally “No”. Policy 1.22 of the BVCP, which is copied below, defines Area II as land where annexation can be “considered”, but is certainly not required. For example, this policy strictly limits annexation for new urban development by requiring “adequate public facilities and services” to be available. Here is what Policy 1.22 says:
Area II is the area now under county jurisdiction, where annexation to the city can be considered consistent with Policies 1.18, 1.20, & 1.27. New urban development may only occur coincident with the availability of adequate facilities and services and not otherwise. Departmental master plans project the provision of services to this area within the planning period. Area IIA is the area of immediate focus within the first three years, and Area IIB is available to accommodate development within the balance of the planning period.
- BVCP, page 9
Policy 1.27 of the BVCP constrains annexations, stating that the City shall annex land with “significant development or redevelopment potential only if the annexation provides a special opportunity or benefit to the city”
d) In order to reduce the negative impacts of new development in the Boulder Valley, the city will annex Area II land with significant development or redevelopment potential only if the annexation provides a special opportunity or benefit to the city.
- BVCP, page 11
And up until this last update, which was completed at the end of 2005, this BVCP policy specified that such annexation was to be “only on a very limited basis.”
Who better than the citizens to decide whether a particular annexation provides a “special opportunity or benefit to the city”?
Doesn’t the BVCP require annexation of all of Area IIB within 15 year planning period, and Area IIA within 3 years?
The simple truth is that no such requirements exist. The 3 and 15 year planning periods enter the discussion in one line of Policy 1.22, but there is no requirement to annex, only a statement about “focus” and “availability”. Here is the line from Policy 1.22, which is quoted in its entirety above:
Area IIA is the area of immediate focus within the first three years, and Area IIB is available to accommodate development within the balance of the planning period.
- BVCP, page 9
This “planning period” notion has been in place since near the beginning of the BVCP, now over 30 years ago, with potentially annexable parcels still in Area II. So a realistic interpretation is that the planning period begins anew with each update and that there is no requirement to annex under any timetable whatsoever. And based on what has happened in the past, it is highly unlikely that the City will ever annex the majority of the parcels in Area II.
Does the BVCP require the City to annex any portion of Area II?
The BVCP only requires the City to “actively pursue annexation” in certain very specific and limited circumstances; however, the City has not done even that. Examples are Githens Acres (an enclave), Gunbarrel, other county subdivisions, etc. where in spite of the BVCP directive, the City has not pursued annexation. Policy 1.27(b) says:
The city will actively pursue annexation of county enclaves, Area II properties along the western boundary, and other fully developed Area II properties.
- BVCP, page 10
What about Area III Planning Reserve?
The BVCP intends that Area III Planning Reserve be held in reserve until a decision is made as to whether it should be preserved as rural or not. We believe that the citizens should make the final decisions about whether any of Area III Planning Reserve is ever annexed, and that these decisions should not be made on a piecemeal basis.
In fact the BVCP recommends a minimum size of 40 acres for any annexation from the Planning Reserve, see the five year review, page 59, paragraph b.(1)(b). Thus, we anticipate only a few votes ever on this area, and these only if the Council decides not to return this land to Area III Rural Preservation and wants to open the area for development.
Here’s what BVCP Policy 2.10 says about the Planning Reserve:
The Area III-Planning Reserve Area (PRA) is that portion of Area III with rural land uses where the city intends to maintain the option of limited Service Area expansion. The Area III-Planning Reserve Area classification maintains both rural preservation and urban development options until the city and county decide the ultimate desired land use.
- BVCP, page 15
For example, our proposal would lead to a vote on the notion of putting a big box on the Palmos property in Area III Planning Reserve, a decision that clearly the voters should make, especially given the fiscal obligations for infrastructure that would occur with this type of development and its location.
What other support does the BVCP provide for limiting development, including through annexation?
The BVCP contains policies that direct the City to focus on “maintaining and improving the quality of life within defined physical boundaries”, “reducing the cumulative negative growth impacts to an acceptable level”, and requiring development and redevelopment to provide both “significant community benefits and to maintain or improve environmental quality”.1.18 Adapting to Limits on Physical Expansion.
As the community expands to its planned physical boundaries, the city and county will increasingly emphasize preservation and enhancement of the physical, social and economic assets of the community. Cooperative efforts and resources will be focused on maintaining and improving the quality of life within defined physical boundaries, with only limited expansion of the city.1.19 Growth Projections.
In order to ensure that past and projected growth impacts can be better mitigated or avoided, and to maintain a desirable community size, the city will set projections for population and employment for the year 2030. Projected growth will be limited unless sufficient progress is made in reducing the cumulative negative growth impacts to an acceptable level and other significant community benefits can be achieved.1.20 Growth Requirements.
The overall effect of urban growth must add significant value to the community, improving quality of life. The city will require development and redevelopment as a whole to provide significant community benefits and to maintain or improve environmental quality as a precondition for further housing and community growth.
- BVCP, page 8
It would seem that a vote by the community at large would be the best test as to whether a significant annexation meets these policies.
Don’t property owners in Area II have a reasonable expectation of annexation?
Given the above, it is clear that annexation is far from being guaranteed. In addition, annexation is the quintessential legislative act – it is up to the Council or the citizens, not the property owner, to set the terms and decide if the annexation is desirable.
Would the requirement in the Initiative for a public vote create some legal basis for a claim under the 5th Amendment “takings” clause?
As best as can be determined, all property owners within Area II have a reasonable economic use of their property and access to water, albeit sometimes by drilling, so the answer appears to be “No”. And since property owners in the County are subject to county zoning, and since the City has no legal obligation to annex (other than in a few special circumstances such as certain enclaves), the only realistic claim that a property owner would likely have is against the County, if they had any at all.
What if some homeowners of already built-out areas in the County wanted to annex to get city water, for example?
If property owners agree to not allow significant additional development, they are exempt from the requirements of our proposal, so there should not be a problem. And the City could always amend the BRC section regulating out-of-city water service if some special circumstances occurred.
How would the Annexation by Vote process work?
We anticipate the annexation process would follow the same course as it does currently with the vote occurring at the end of the process, once the annexation agreement had been worked out.
What if the City annexed some land under one zoning and then wanted to change the zoning for more development?
Our view is that such a zoning change would and should require a further vote of the people, because the terms of the annexation, including initial zoning, are part of the annexation agreement, which was the basis for voter approval of the annexation in the first place. Since Boulder’s zoning categories generally include lesser uses, a reduction in build-out would not require another vote.
Could the Council change the Annexation by Vote measure if it was approved by the voters?
Under the Charter, the Council is restricted from “repealing” a measure passed by the citizens. Corrections and non-substantive changes, however, have been made in past initiatives, so we anticipate adequate flexibility to cope with minor fixes if needed.
What other cities have such a process?
The precedent has been set by other cities and the legal basis has been litigated. For example, to the best of our knowledge, Lyons, Erie, Lone Tree, Watkins and Greenwood Village have such a process in one form or another.
Could the City require the developer to pay for such an election?
Yes; some other cities do.
Why would the measure affect only a small number of parcels?
Realistically, the proposal would affect only a relatively small number of parcels in Area II of the BVCP. The measure exempts:
- parcels under 5 acres,
- already-developed parcels,
- enclaves of unincorporated land within the City boundaries,
- City property,
- parcels that have agreed to annex upon request because they have City water or sewer,
- public right of ways, and
- parcels for which annexation petitions were submitted before 1/1/06.
For the exact language of the exemptions, see The Initiative, or view the Affected Parcels.
Of what is left, many owners would not want to annex because there is no value in doing so, or have already decided not to annex, or because they already have the City services they need. For example, the San Lazaro Mobile Home Park already has emergency city water. Xcel’s maintenance and storage facility on 63rd Street already has City water service. This leaves only a few parcels that are likely ever to be voted on in the near future.
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Last Modified 5/3/06 10:11 AM