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
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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
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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.
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“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
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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
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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
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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.
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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;
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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]
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