MEMORANDUM To: San Miguel County Planning Commission From: Michael Rozycki, Planning Director Re: Land Use Code Amendment Recommendation: LUC Section 5-407, Wildlife Habitat Areas, modifying dog and fencing regulations Date: September 11, 2013__ __________ _____________[text/word/wildlife.cpc.memo.sept.13] Planning Department staff have had a series of on-going conversations and work sessions with Renzo Del Piccolo and Kelly Crane, Colorado Parks and Wildlife (CPW), the Aldasoro Ranch Homeowners Company wildlife consultants Rick Sherman and Gene Byrne, the San Miguel County Board of Commissioners (BOCC) and County Planning Commission (CPC) in recent months to discuss potential amendments to the County Land Use Code (LUC) wildlife habitat standards in Section 5-407. The current Section 5-407 language specifically prohibits dogs within CDOW mapped deer, elk and bighorn sheep winter concentration areas and severe winter range, deer, elk and bighorn sheep winter range and deer and elk migration corridors and production areas, as well as within a one half-mile buffer zone around these mapped areas, with the exception of the deer, elk, and bighorn sheep winter range. This section of the code also includes a number of additional general standards intended to mitigate impacts to wildlife which include but are not limited to clustering of development, maintaining vegetation, preserving habitat with minimal disturbances, prohibiting mesh and woven fencing, as well as additional standards for specific wildlife habitat areas. In addition to the provisions of LUC Section 5-407 Wildlife Habitat Areas, which contain prohibitions on dogs within certain CPW mapped or known wildlife habitat areas, the BOCC as part of its approval of several Planned Unit Developments (PUD) in the Telluride Region in the early 1990’s required these PUD’s: Mountain Village, Aldasoro Ranch, Lawson Hill, Skyfield North, and the Preserve subdivision, to include private covenants, as part of their General Declarations, that prohibits dogs within their PUD or subdivision, and require the home owner’s company or association to enforce this prohibition. It is my understanding that these private covenants remain in place in the above mentioned PUD’s, with the exception of Mountain Village which incorporated in 1995, and in general the HOA’s have been and continue to enforce the dog prohibition within their PUD or subdivision. At present in areas outside of these specific PUD’s, if or when contacted, the Planning staff and the Environmental Health Director will advise folks who are proposing development within mapped wildlife habitat areas that the BOCC adopted LUC has prescribed limitations on fencing (a maximum of four strands and to 42 inches in height) and a prohibition on dogs. This often leads to a discussion about the prohibition and how and why the neighbors have dogs and/or fenced areas for their dogs. We have not actively or aggressively enforced the prohibition on dogs within mapped wildlife habitat areas throughout the unincorporated areas of the County. Background In the late 1980’s and early 1990’s the County began work on rewriting the entire County Land Use Code to include implementing Wildlife Habitat standards. During this period of time a number of PUD applications proposing to subdivide relatively large acreages into increased residential densities located in mapped high quality Wildlife Habitat Areas came before the County Planning Commission (CPC) and the Board of County Commissioners (BOCC). Examples of these proposed PUD’s and subdivisions include the Mountain Village, Aldasoro Ranch, Lawson Hill and several smaller PUD’s and subdivisions. As a part of the PUD application/review process the developers of these PUD’s and subdivisions were asked or required to provide Wildlife Assessments to address the potential impact of their proposed increased density and development on wildlife and wildlife habitat, with emphasis on impacts to deer and elk and their habitat, and to recommend specific mitigation measures to reduce the impacts of these relatively large developments on wildlife and their habitat. All of the proposed PUD’s and subdivisions proposed in the Telluride Region at that time were referred to the Colorado Division of Wildlife (CDOW) (CDOW was changed to Colorado Parks and Wildlife (CPW) in 2012) for review and recommendation to the County CPC and BOCC. In reading through the reviews and comments from CDOW staff concerning these PUD and subdivision applications during that period it is apparent that CDOW staff at that time, Ken Miller, Lyle Bennett and Rick Sherman, had serious concerns about these development plans, the proposed PUD densities and their potential impact on wildlife and critical wildlife habitat. Their concerns included potential dense development in important migration, calving and heavily used grazing and shelter areas, primarily for elk, loss of important habitat areas necessary for shelter, resting and feeding due to human encroachment and disturbance, potential for wildlife conflicts with free roaming dogs, impedance of daily wildlife movement from fences, concerns of habitat fragmentation from wide distribution of housing development and roads, and the need for open space and protected critical areas, seasonal usage and closures during calving and fawning areas, etc. It is also clear in reading through these various PUD files and minutes that CDOW staff at that time was clearly of the opinion that “where there is an increase in (human) population there is an increase in dogs; and dogs and wildlife don’t mix.” It is also my impression in reading through these PUD and subdivision files, and consistent with the provisions of the Telluride Region Master Plan, that the County and CDOW representatives anticipated and expected that the Telluride Region would develop in the coming years into a series of High Density and Medium Density residential subdivisions through the PUD review process which would have a cumulative negative impact on wildlife and wildlife habitat in the region. As we’ve seen rather than developing at relatively high densities through a series of PUD approvals most of the development in the region has occurred either on 35-acre parcels and/or on smaller pre-existing non-conforming lots or smaller lots created through small scale subdivision exemption plats. In fact the County until the recent applications submitted by SMVC have not received or reviewed a substantive PUD application since the early 1990’s. While the Planning office files do not contain much information or explanation concerning the proposal and adoption of LUC Section 5-407 Wildlife Habitat Areas, and specifically the provisions prohibiting dogs in certain wildlife habitat areas it appears that after reviewing several 2 PUD and subdivision proposals in wildlife habitat areas, the CDOW representatives recommended that the CPC and BOCC require the applicants to include prohibitions against dogs in the subdivisions private covenants, with the covenants being enforceable by the County and the Division of Wildlife. The BOCC made these provisions conditions of the PUD/subdivision approval. It was subsequently decided to include a similar provision prohibiting dogs in wildlife areas as part of the proposed new County LUC. There are a number of statements in the record from CDOW representatives that the County’s prohibition on dogs is the best solution that CDOW has found to protect wildlife from free roaming dogs and it is hoped that the San Miguel County LUC regulation prohibiting dogs in mapped wildlife habitat areas will be a model for all counties. More Recent Discussions Concerning The County’s Wildlife Regulations and Prohibition on Dogs within Mapped Wildlife Habitat Areas In May 2008 the Aldasoro Ranch PUD Board of Directors (ARHOC) conducted a survey of the lot owners to gauge interest in allowing dogs in the Aldasoro Ranch PUD. After discussing the issue of removing the dog prohibition within the PUD, Planning staff recommended the ARHOC hire a qualified wildlife biologist or scientist to review the original 1990 Aldasoro Ranch Wildlife Impact Report and provide an updated report to include specific findings and recommendations including wildlife and wildlife habitat mitigation measure that would be referred to the CPW for review and recommendation. The report was completed in 2011 and sent to CPW for review and comment. Subsequently, staff met with the CPW, the BOCC, ARHOC consultants, Sherman and Byrne, to discuss the results of the report and potential directions to address the issues. In a May 6, 2012 letter, Renzo DelPiccolo, CPW Area Wildlife Manager states the CPW staff reviewed the Aldasoro Ranch Wildlife Assessment Update and in particular the issue of domestic dogs. He states the CPW continues to support the 1990 wildlife impact statements submitted by CDOW, stating that they are still valid today and believes that habitat use by wildlife in the area has not appreciably changed. In this May 6, 2012 letter Mr. DelPiccolo also states the CPW does support the removal of the dog prohibition in the LUC “1041” Regulations Section 5-407 which prohibit dogs in mapped Wildlife Habitat Areas. The CPW understands that this regulation is not being enforced and would be difficult, at best, to enforce. The CPW is also aware that no other county in the state has such a regulation in their Land Use Code. Mr. Del Piccolo’s letter goes on to state that even with the removal of the county-wide prohibition, the CPW still has concerns regarding dogs running at large which can cause additional undue stress on wildlife during production and winter periods which may also cause them to abandon quality habitat for lower quality, less optimal winter ranges and production areas. His suggestion is that special attention be paid to prevent dogs from running at large. He suggests that dogs should be kept in a kennel, house or small fenced yard adjacent to the home unless under the direct control of the owner. It is illegal for dogs to chase and harass wildlife 3 even on private property. Lot perimeter fencing should not be allowed unless livestock is to be permitted on the property. Any new fencing on properties should follow Colorado Parks and Wildlife “Fencing with Wildlife in Mind” guidelines. This memorandum and draft amendments was sent to Colorado Parks and Wildlife, Aldasoro Ranch HOC, Sheep Mountain Alliance, Telluride Realtors Association, Lawson Hill POC, Banks Brown, Scott Bennett, Jim Botenhagen, Tom Kennedy, Attorney, Rick Sherman, Gene Byrne and Dave Schneck for review and comment. Planning Staff Summary In reviewing and considering the results and effects of the provisions of LUC Section 5-407 Wildlife Habitat Areas that were adopted in 1990, I would say that in many respects the “Grand Experiment” worked and has helped in some manner to reduce adverse impacts to wildlife and wildlife habitat in the unincorporated areas. I would add that in my opinion County’s requiring the developers of the major PUD’s to included private covenants, as part of their General Declarations, that prohibit dogs within their PUD or subdivisions together with the requirement that the owner’s company or association enforce these prohibitions, has had an even greater impact on protecting wildlife and wildlife habitats. The biggest problem and challenge with the current provisions prohibiting dogs within mapped Wildlife Areas is that it is extremely difficult to enforce and as a practical matter has not been enforced outside a limited number of PUDs in any meaning full way since it was adopted some twenty (20) plus years ago. Some of the changes staff has included in the proposed amendment include: 1. Removing the overall blanket prohibition on dogs and adding standards for development or activities, such as subdivisions, PUD’s and special uses that may require a wildlife impact assessment for all mapped wildlife or known habitat areas. 2. The requirement for a wildlife assessment report was added to Sketch Plan Subdivision Reviews Section 4-304 Environment Report and a new Special Uses Section 5-1002 E. XI. Wildlife Plan which will refer to Section 5-407 A. XII. 3. More detailed updated fencing information has been added following the recommended CPW guidelines. 4. A reference to the County Dog Control Resolution 1982-27 regarding barking dogs, dogs at large and stray dogs has been added. 5. A reference to Colorado State Statute regarding dogs chasing or harassing wildlife has been added. 6. Buffer zones for eagles and raptors have been updated to reflect current CPW recommendations. Staff recommends approval of the proposed amendments, Exhibit A, to the BOCC finding it meets LUC Section 5-1802 Land Use Code Amendments. 4 “EXHIBIT A” underline indicates addition and strikethrough indicates addition 5-407 Wildlife Habitat Areas This section establishes land use standards for wildlife habitat areas. in addition to the general standards in Section 5-402. The standards apply to areas mapped by the Colorado Division of Wildlife Parks and Wildlife (CPW) on the County's adopted Wildlife Resource Information System (C.R.S.1041 Wildlife maps) and to areas known to be wildlife habitat areas by the Division of Colorado Parks and Wildlife, and areas mapped by the Colorado Natural Heritage Program. Agricultural and Ranching activities in the West End Zone District are exempt from this Section. 5-407 A. General Standards The standards in this section apply to all wildlife habitat areas. I. Residential development shall be clustered to avoid impacting wildlife and their habitat. II. Removal of vegetation shall be minimized. Vegetation removed shall be promptly replaced with beneficial native browse species. III. Where existing vegetation must be altered, for an access road, utility line or similar uses, an applicant will cooperate with the County and the Colorado Division of Wildlife to devise a compensation plan acceptable to the County. Such compensation plan may substitute, in an accessible nearby area, vegetation equal in type and quantity to that being removed to mitigate effects on wildlife species. IV. Wildlife food, cover and water shall be preserved and development effects that would destroy these shall be mitigated. Special consideration shall be given to trees and shrubs with high wildlife food value, especially heavy seed, berry and fruit producing species. V. The planting of wildlife food species and woody cover along fences shall be encouraged as one way of improving wildlife habitat. VI. Waterholes, springs, seepage, marshes, pond and watering areas shall be preserved. VII. Known endangered species habitats shall be preserved and all disturbances to those habitats shall be minimized. VIII. Every golden eagle nest site and bald eagle roost site shall be protected 5 with a 300-meter buffer. All other raptor nest sites shall be protected with 100-meter buffers. Every golden eagle nest site, bald eagle roost site, and all other raptor nest sites shall be protected with a ½-mile buffer. IX. Mesh or woven fences shall be prohibited and are encouraged to be removed. X. Fences shall be limited to a maximum of four strands and to 42 inches in height. Fences within wildlife habitat areas are discouraged. Fences shall be limited to “wildlife friendly fences.” Wildlife friendly fences are very visible and allow wild animals to easily jump over or slip under the wires or rails. The following regulations shall apply to fencing: a. Smooth wire or rounded rail for the top, smooth wire on the bottom; b. Fence is limited to 42: in height; c. At least 12” between the top two wires or rails; d. At least 16” between the bottom wire or trail and the ground; e. Posts at minimum 16’ intervals; f. Gates, drop-downs, removable fence sections or other passages where animals concentrate and cross; g. Using a rail, high-visibility wire, flagging or other visual markers for the top. h. A zigzagged worm fence (rails stacked alternately on top of one another, with rails interlocked like laced fingers where the ends meet) should create openings for wildlife to cross by intermittently dropping rails to the ground every 400’; and in swales and at stream crossing for easy wildlife passage. i. Perimeter fencing of an entire parcel is discouraged. j. Dog should be kept in a kennel or small fenced yard adjacent to the residence. If staff has a question regarding proposed fencing the application may be referred to the CPW for comment and recommendation. Any new fencing shall follow the CPW “Fencing with Wildlife in Mind” guidelines available at www.wildlife.state.co.us XI. Residential development shall maintain bear proof storage for garbage disposal for all parcels located in all zone districts. of the R-1 School District or the F Zone District countywide. XII. Development or activities, such as Subdivisions, PUDs and Special Use Permits uses may require a Wildlife Impact Assessment prepared by a qualified wildlife biologist or scientist for all mapped wildlife habitat areas 6 or known habitat areas to be submitted with the land use application. The Impact Assessment should include changes, trends and proposed mitigation to be reviewed by the Colorado Parks and Wildlife or other County review staff. XIII. Barking dogs, dogs at large, and stray dogs are not permitted in any unincorporated portion of San Miguel County pursuant to Board of County Commissioner Resolution1982-27. XIV. It is illegal for dogs to chase and/or harass wildlife, even on private property. A Colorado wildlife officer or other peace officer may capture or kill any dog he or she determines to be harassing wildlife, pursuant to C.R.S. §33-6-128. 5-407 B. Deer, Elk and Bighorn Sheep Winter Concentration Area/Severe Winter Range Land uses in deer, elk or bighorn sheep winter concentration areas/severe winter range shall comply with the standards in Section 5-407 A. and the standards in this Section. 5-407 C. I. Overgrazing of ranges by livestock shall be prohibited. II. Development shall be restricted to areas in which wildlife impacts can be minimized. III. Access for the Division of Colorado Parks and Wildlife for managing wildlife shall be maintained. IV. Commercial activity and recreational uses requiring County review shall be prohibited from December through April 15. V. Dogs shall be prohibited within one-half mile of elk, mule deer and bighorn sheep severe winter ranges and winter concentration areas. Deer, Elk and Bighorn Sheep Winter Range Land uses located in deer, elk or bighorn sheep winter range shall comply with Sections 5-407 A. and 5-407 B.I. - III. and the standard in this section. Commercial activity and recreational uses requiring County review shall be prohibited from December 1 through April 15, unless an applicant can demonstrate written approval from the Colorado Division of Parks and Wildlife of a site-specific wildlife protection plan. Such plan shall include DOW CPW monitoring provisions and set forth on-site protection, including but not limited to habitat enhancement and habitat protection, including but not limited to control of 7 fencing, noise, lighting and siting of structures, and establishment of routes and means of transportation and hours/days of operation. Permits must be renewed annually. The dates in this section may be modified and permits may be suspended at any time upon DOW CPW recommendation on a case-by-case basis as necessary to protect the health of the herd. 5-407 D. Deer and Elk Migration Corridors Land uses located in deer and elk Migration Corridors shall comply with Section 5-407 A. and the standards in this section. 5-407 E. I. Development blocking a corridor and preventing migration between summer and winter ranges shall be prohibited. II. Fences restricting deer or elk migration shall be prohibited. III. Dogs shall be prohibited within one-half mile of mule deer and elk migration corridors and patterns. Deer and Elk Production Areas Land uses located in deer and elk production areas shall comply with Section 5407 A. and the standards in this Section. I. Where no appropriate development site exists in a production area, development shall be prohibited. II. Dogs shall be prohibited within one-half mile of a deer or elk calving area. III. Access shall be maintained for the Colorado Division of Parks and Wildlife for trapping, tagging and studying wildlife. IV. Manipulation of vegetation shall be prohibited, except within a designated building envelope. V. Commercial and construction activity, recreational uses and off-road motorized activity shall be prohibited from May 1 through June 30. These dates may be modified upon Colorado Division of Parks and Wildlife recommendation on a case-by-case basis as necessary to protect the health of the herd. 4-304 Environmental Report An applicant shall submit a written report addressing potential impacts on the environmental features listed in this section. 8 4-304 A. Streams, lakes, topography, wetlands, wildlife habitats (Refer to Section 5-407 A.) and vegetation; 4-304 B. Geologic characteristics of the area, along with a determination of the impact of such characteristics on the proposed subdivision; 4-304 C. Potential radiation hazard; and 4-304 D. Suitability of types of soil in the proposed subdivision, in accordance with the national cooperative soil survey. 5-1002 E. The following must be addressed as part of any application: I. A Site plan including: a. Ownership, Use and zoning of all adjacent Parcels; b. Driveways, streets and right-of-way, Access ways, including points of ingress, egress, parking plan; c. Easements; d. Location and dimensions of Structures and Signs; e. Typical elevations/Heights of such Buildings; f. Landscaping; g. Topography; h. Specific areas proposed for specific types of land Use/the identification of specific land Uses; and i. Information regarding the function and characteristics of any Building or Use proposed, including: days and hours of operation, number of employees, number of students, number of rooms for rent, etc., as applicable; II. Lighting plan; III. Signs - all Signs must meet Section 5-704 standards; IV. Water/sewer plan - must meet state standards and may include verification of a commercial well permit; V. Drainage plan; VI. Grading plan; VII. Dust control plan; VIII. Detailed engineered plans and specifications by a registered Colorado Professional Engineer as requested by staff or Referral Agents; IX. Weed control plan that must include use of weed free hay or straw; 9 X. Fencing Plan; XI. Wildlife Plan (see Section 5-407 A. XII.); and XI. XII. Additional permits as necessary from other agencies. SECTION 2-16: WILDLIFE PROTECTION It is the policy of the County to identify and protect wildlife habitats for the preservation of wildlife, to encourage land use patterns that avoid disruptions to such habitat, and to prohibit dogs in and adjacent to wildlife habitat areas. The County will coordinate with Colorado Parks and Wildlife personnel regarding proposed development or uses within or adjacent to mapped wildlife habitat areas to mitigate impacts on wildlife. COLORADO PARKS AND WILDLIFE The Colorado Division of Wildlife was recently changed to the Colorado Parks and Wildlife. Blanket Change to LUC: All reference to the Colorado Division of Wildlife (DOW) have been changed to Colorado Parks and Wildlife (CPW) [text/luc/wildlife.dog.luc.amend] 10