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El Paso County Colorado District 49

Commissioner Hisey answers questions about development and roads

When it comes to requiring developers to construct roads or road improvements not in their development, the case law is both complicated and well defined. There have been adequate rulings both in and out of Colorado to define the boundaries for parties on both sides of this issue.Just to be clear, roads, signs, signals, etc. inside a development are constructed and paid for by the development. Even major roads like the extensions of Fountain Mesa and Meridian, both of which will be four-lane major arterials, are being constructed by the respective developers, even though drivers from existing neighborhoods will utilize the roads as well.When you start asking for off-site improvements, two court cases come up pretty quickly: Nolan v. California Coastal Commission and Dolan v. the city of Tigard. While neither of these deal directly with off-site improvements, they set up the two basic criteria public officials are bound by.

  • There must be an “essential nexus.” In other words, requiring the addition of turn lanes to an existing road to move traffic into and out of a development is allowable. However, requiring a developer to add an additional lane to the interstate would be considered too far removed to establish the connection.
  • There must be “rough proportionality.” Even though the new development will be contributing a percentage to an adjacent road system, the developer can not be required to upgrade the entire system. The larger the percentage of traffic contributed, the more that can be required.
Which brings us to what we call the “just say no option.” If it is determined the existing roads will not safely handle the new traffic, we can deny the project. For the skeptics out there, this is not uncommon. However, the developer can “volunteer” to provide additional off-site improvements.The “voluntary improvements” can range from a traffic signal on Bradley, where traffic from the new development a block away warranted a signal, even though the development contributes only a small portion of the total traffic. In another case, a two-lane road will be widened to four lanes between two major arterials as build out occurs and traffic increases. It can also include placing funds in escrow to pay for all or part of an improvement, such as turn lanes or traffic signals a significant distance from the site.We try to be polite; we always ask the developers if they agree to the conditions of approval before the vote is taken.

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