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Summit County did not violate its own land use code when it greenlit a housing project that segregated market-rate and affordable housing units, the Colorado Court of Appeals decided last week, even though the move ran counter to the code’s recommendations.

Developers applied for a land rezoning in Summit County in order to build 14 market-rate homes and 22 affordable homes on a parcel. Daniel Moore owned land nearby and objected on the grounds that the proposed development did not follow the county’s land use and development code.

Moore argued that under the code, the two types of units had to be intermingled within the development, rather than segregated on separate ends of the site. The relevant provision of the code states that for projects that contain “both market-rate residential units and deed-restricted affordable workforce housing units, the blend of market rate units and affordable workforce housing units shall be compatible and interspersed throughout the development.”

The board of county commissioners heard from the planning department about why a physical separation of unit types was preferable, including the ability of each homeowner association to control its own maintenance and landscaping. The board ultimately approved the rezoning.

When Moore sued, the board pointed to a preceding passage in the code that stated “developers are encouraged to provide diversity in affordable workforce housing development” through various provisions, including the interspersal of market-rate and affordable homes. The Court of Appeals agreed with the county that taken as a whole, the code did not mandate the mixing of unit types.

“[T]he use of ‘i.e.’ and ‘etc.’ in those provisions, especially when read with the introductory paragraph ... suggests that developers should consider these recommendations to promote diversity in their proposals. It doesn’t imply that any of them, let alone all of them, are required in all circumstances,” wrote Judge Jerry N. Jones for the three-member panel. The court’s opinion was unpublished, meaning it is not meant to set a precedent and applies solely to the case at hand.

Jones also explained that a planned-unit development like the one Moore challenged did not have to strictly follow the land use code. “The BOCC argues, and we agree, that it is empowered to override Code provisions when approving a PUD,” he wrote.

Jeffrey L. Huntley, the Summit County attorney, said his jurisdiction clarified its land use code after Moore filed the appeal. The provision at issue in the case now reads that units "should be," rather than "shall be," interspersed. Huntley added that the developers are proceeding with the project.

Attorneys for Moore did not immediately respond to a request for comment.

The case is Moore v. Board of County Commissioners.

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