One year after the massive Black Forest fire that burned 14,280 acres and destroyed 486 homes, regulations regarding structures in the Wildland Urban Interface are still sparking controversy.
The WUI is defined as areas where structures are built near or among lands prone to wildland fire, according to wildlandfirersg.org.
According to the December 2013 issue of The New Falcon Herald, the Falcon Fire Protection District and six other local fire districts met with the El Paso County Board of Commissioners Nov. 21, 2103, to discuss the 2009 International Fire Code. The other districts included Black Forest, Wescott, Cimarron Hills, Hanover and Security.
At that meeting, members from the Housing and Building Association of Colorado Springs voiced concern with several items within the code as presented, causing a sticking point for the commissioners.
At the Dec. 10, 2013, BOCC meeting, the commissioners unanimously voted to adopt the 2009 International Fire Code, with local amendments. However, they deleted the entire section of the IFC pertaining to the WUI, according to the January 2014 issue of The New Falcon Herald.
The deleted section of the 2009 IFC, known as Appendix K, set requirements for structures within the WUI for defensible space, access for firefighting vehicles, proper property addressing, sufficient water supply and that hardened structures be built with noncombustible materials to resist igniting in the event of a wildland fire, the NFH article states.
Also, the BOCC directed county staff to investigate what it would take to integrate the WUI regulations into the county’s land development code. The goal was to have a draft of the requirements presented to the commissioners in March, said Trent Harwig, FFPD chief.
“We had given direction (to county staff) to take a look at a WUI code and what it would look like to have one of those added to the (land development) code,” said Amy Lathen, county commissioner. “We had never committed to anything. They (county staff) did put some things together, and we’ve discovered that the WUI code would just be duplicate regulations of what we have in the land development code.”
Lathen said that all the WUI regulations are in the fire protection and wildfire mitigation section of the LDC and are based on the regulations taken from the National Fire Protection Agency. Adding a WUI code to the fire code the county has already adopted would have been redundant, she said.
“We were asking for specifics on the WUI,” Lathen said. “We wanted them to bring that forward and what it would look like in our code. They (county staff) showed us what it would require (to adopt a WUI code) and we said, ‘Well, we don’t need to hear that because we’ve already got it. There was just no support on the board for an agenda item but there was work done on our part with staff.”
Harwig said that pulling out everything in Appendix K ultimately meant that the county pulled out more regulations than they intended. “If they were hung up on the hardened structures piece, we could work with that,” he said. “They could’ve removed just that piece but instead they took the whole thing out.”
Some of the regulations in Appendix K were based on ordinances the city of Colorado Springs adopted in their fire code, after the Waldo Canyon Fire, Harwig said. The fire code that Tri-Lakes Monument Fire Protection District submitted to the county, which they approved, contained WUI regulations similar to Appendix K, he said.
Lathen said if the county approved a WUI code like Appendix K, it would have to be adopted in whole. “It would be across the board for the whole county,” she said. “This county is far too diverse for a one-size-fits-all code. Having the NFPA model in the land development code gives us the ability to respond and react in different areas based on their conditions, whereas a WUI code doesn’t.”
Harwig said that mitigation requirements like those in Appendix K are a necessity because they help protect everyone. “The mitigation helps defend your home from the fire and your fire from the forest,” he said.
“Do we go into private property to compel them to mitigate?” Lathen said. “Do we have that authority, and do we want to for mitigation on private property? We’ve said that we’re not going to dictate on private property. We do require those mitigation efforts on new builds, in new subdivisions. But we have chosen the voluntary compliance option with a tremendous public relations and educational effort to help people understand that, unquestionably, it’s helpful ... but it’s not a guarantee of anything and that factors into our decision to mandate these things.
“We did reject a few of the things that the fire districts wanted, and we felt they were overreaching. But that wasn’t done blindly at the expense of public safety, and we are very strict about private property rights.”
Rick Shearer, FFPD attorney, said property rights issues affect everyone living in the WUI or forested areas. “If your house catches fire and there’s no way for a district to have a shot to protect your area; and your property is the one that goes because you have a strong feeling about your own property rights, you’re interfering with other people’s property rights and their safety,” Shearer said.
Lathen reiterated that mitigation requirements are in the land development code, which allows the county to retain local control of the requirements on behalf of constituents.
“If there are specific issues that they feel are of concern, let’s talk about those,” Lathen said. “Let’s first see how we can implement those in the land development code.”
“State statute says that if a county wants to establish a fire code ... you have to establish first a standing committee of all the fire chiefs in the county,” Shearer said. Although the county added fire safety regulations to the land development code, those regulations are still considered a fire code. “They (commissioners) need to follow the statutory procedures for adopting the code,” Shearer said.
Harwig said he believes if the fire districts can work with the HBA to agree on some of the regulations from Appendix K, the county would likely adopt them. “If the HBA and the fire districts came to an agreement, the county would be happy,” he said. “We haven’t come to an agreement yet, and there are some things that need to be done and that we can’t live without. We have to have some of the stuff that was taken out put back in because it’s in the best interest of the people that live in the interface.”
Lathen said she is confident the HBA and the fire districts can come to an agreement, adding that they welcome discussions but the BOCC will not initiate further actions on the fire code issue.
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The ongoing scandal involving El Paso County Sheriff Terry Maketa has made the El Paso County Board of County Commissioner meetings a popular source for Twitter posts, live video feeds and Internet armchair quarterbacking. The commissioners are the public face of the El Paso County government, but these five individuals control only a small portion of what county residents see as their local government.
Counties in Colorado are considered an extension of the state government and only have the powers granted to them by the Constitution of the state of Colorado and any statutes the state Legislature passes. “We are political subdivisions of the state,” said Eric Bergman, policy and research supervisor for Colorado Counties Inc., a nonprofit association of counties throughout the state. “Local decision-making bodies that handle roads, social services and open space; instead of all happening from a distant, centralized system in Denver, makes a lot of sense.”
The Board of County Commissioners in each county has budget authority for their departments and offices. However, the commissioners cannot change line-item level disbursements in the offices run by separately elected officers, said Amy Lathen, vice chairwoman of the El Paso County Board of County Commissioners.
“It’s all dictated by state law,” Lathen said. “We have authority over budget in its entirety, but the board does not have power over individual line items in the other elect-ed offices. Those elected officials who are overseeing those offices have autonomy over those budgets.”
The other elected officials with the same autonomy include the assessor, clerk and recorder, coroner, sheriff, surveyor treasurer, according to the County Government Snapshot, published by CCI. The district attorney covers multiple counties, so the counties in that court district share the budget set by the state, Lathen said.
In addition to the overall county budget, the county commissioners have authority over land-use regulations and policies and procedures for county employees, except for sworn law enforcement officers in the sheriff’s office. While the board does not have day-to-day control over separate departments such as El Paso County Public Health, the members of the Board of Health are appointed by the commissioners. Commissioners Lathen and Sallie Clark also serve on the Board of Health.
The popular notion that the commissioners control every aspect of county government sometimes creates friction between the commissioners and their constituents, Lathen said. “The notion that we have oversight over other elected offices is a frustration and has been since I came into office,” Lathen said. “If someone has a grievance with the clerk and recorder’s office and they call us, that’s frustrating for the caller. We don’t have any authority over the constitutionally elected officers, and that has been a constant source of clarification.”
Salaries for the commissioners and the other county-elected officials are set by the state Legislature. A statewide County Elected Officials Salary Commission appointed by the Colorado House and Senate recommends salaries based on the elected office and the population category of the county, according to House Local Government Committee documents. El Paso County is one of nine Category I counties, which the state mandates pay for its commissioners, treasurer, assessor, clerk and coroner at $87,300 per year. Category I sheriffs are paid $111,100 per year. Lincoln County to the east is a Category V county, which pays the commissioners $43,800 per year.
“We tried to go to the ballot to have those salaries set locally, but our association was fairly divided on that,” Bergman said. “Voting on your own salary was politically unpopular. It puts commissioners in an awkward position.”
Much of the rest of the county budget is also set by state law, Lathen said. “Only about 10 percent of the property tax someone pays comes to the county at all,” Lathen said. “Most of it passes through to the school districts, metro districts and other entities. Of the about $260 million that actually comes to the county, there is much of it that is restricted by state and federal law. We only have discretion over about $110 million, and that’s where the funding for the elected officers’ offices comes from.”
The commissioners don’t have the authority to de-fund an elected official’s activities, as was suggested by some residents to force Maketa to resign, Lathen said. “State law requires that we provide necessary funding to each officer to meet their constitutional required duties,” Lathen said. “They may argue that they need $50 million instead of $47 million and we have discretion there to look at the total amount of money available. But if we were not to fund an elected office adequately, they could sue the board.”
Two Colorado counties, Weld and Pitkin, have adopted home-rule charters, which offer small increases in local powers. “We don’t have functional home rule the same way cities have,” Bergman said. “We can make small changes like salaries and appoint instead of elect some officials, unlike a city where the sky is the limit if a city goes home rule.” Lathen agreed that more local control could be a benefit, depending on the voters’ views. “Conceivably, a home-rule county board could appoint the assessor, treasurer or even sheriff,” Lathen said. “Some people would see that as a benefit, some people would see it as not a benefit.”
Ceremonial duties including proclamations and resolutions don’t take much time or money but help the board recognize and celebrate activities in the community, Lathen said. “They are policy makers and are elected to have an opinion,” Bergman said. “Highlighting and shining a spotlight on organizations is part of publicizing and acting on those views.”
An organizational chart of El Paso County’s elected offices and their areas of authority can be found at http://elpasoco.com/OurGovernment/