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May 2015 • Online Edition

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“Sustainability” Still Undefined, Elusive In New Zoning Code | Print |  E-mail

by Paul Kashmann

“Sustainability, in a broad sense, is the capacity to endure.

In ecology, the word describes how biological systems remain diverse and productive over time. For humans it is the potential for long-term maintenance of well-being, which in turn depends on the well-being of the natural world and the responsible use of natural resources.” – Wikipedia

As we approach the beginning of the second decade of the 21st century, there is ever-increasing understanding across the full breadth of the political spectrum that the time has come for all denizens of planet Earth to become better stewards of the finite natural resources upon which our current way of living depends.

No longer can we simply dig into the ground for fossil fuels to power our vehicles and machinery and heat our homes and businesses, without an awareness that (a) the Earth’s reserves of those precious fossil fuels are declining rapidly, and (b) the burning of carbon-based fuels is doing damage to the atmosphere that portends long-lasting environmental ills that could change life as we know it here on the third rock from the sun.

As Denver prepares to adopt the first major rewrite of the city Zoning Code in more than 50 years, a cadre of voices is sounding the alarm that issues of sustainability have been given short shrift in the new code, in favor of easing the path to development of a bigger and better Denver.

“I think the (new) code is addressing developer rights more than private property ownership rights,” said Carol McFadden, a member of the Platt Park People’s Association (3PA) Green Team, which is working on issues of sustainability that specifically affect their south Denver community as well as the city at large.

“What I see in this code is, it’s very developer driven. This new rewrite was started at the peak of the housing frenzy bubble. They’re still going on the premise they can build out the footprint of a lot and sell these (large houses). We are in a global economic crisis. We’ve got fossil fuel issues. Are people going to want these homes when fuel is so expensive and they need passive solar access to heat them?

“They (the Zoning Code Task Force) called in a sustainability expert in summer 2008, but everything of interest for us environmentalists was pushed into an area called ‘New Strategies which will be incorporated if confirmed by further studies.’”

McFadden and others feel the new code does not adequately protect solar access for passive and active solar applications, as well as backyard agricultural needs. They are concerned that not enough is being done to ensure that homeowners have access to enough direct sunlight to heat  solar panels and passive solar building elements as well as the ever-growing number of backyard gardens that are dotting our city’s neighborhoods. The problem arises when the sunlight that would fall on your property is blocked because the home to the south is tall enough to block the sun at critical times of day.

“Right now for urban areas like Platt Park they are designating 5-foot side setbacks. That destroys any passive solar access. An ideal would be to increase the setback or at least make it 5 feet for a single-story home, but greater for a two-story house. I mean, 5-foot setback, two-story house, add a Granny Flat, and where’s the sun? You just can’t get it.” McFadden acknowledges that the issue is not a simple one – “Our lots are fairly narrow. Is (changing the setback) feasible, I’m not sure.”

Councilman Chris Nevitt believes the connection between solar access and sustainability is not as cut and dried as some might believe. “The solar thing is really complex. And people need to acknowledge that, on both sides,” said Nevitt. “I care about protecting solar access, both individually and collectively, but there’s only so much we can do about this with the zoning code. If I put solar panels on my one-story bungalow, does protecting me prohibit my south side neighbor from building a three-story apartment that the zoning allows? What’s more sustainable, a single-family home or a three-story apartment building on a like-sized lot? I understand wanting to maintain access to solar energy, but don’t tell me it’s about sustainability, because the most sustainable thing of all would be if Denver was built out like Manhattan.”

Nevitt points to other actions the city has taken outside of the Zoning Code to create a more sustainable civic environment: “We’ve updated the building code and adopted the International Energy Conservation Code. Another thing outside of zoning that affects sustainability is how traffic is managed. We just adopted a strategic transportation plan that’s kind of radical nationwide. Our entire approach in moving people has abandoned vehicle trips as the relevant guidepost; now we’re talking about person trips. We have declared as a principle for Denver traffic management that we won’t expand our right-of-way footprints. What we’ve got is what we’re working with in the future.”

Denver’s Director of Community Planning and Development, Peter Park, echoes Nevitt’s sentiments. “Solar is maybe three percent of the solution. It’s not the only thing we do to reduce our carbon footprint. We try to remind folks that considerations of solar access are not the only thing we can do when it comes to sustainability.” Park said the Task Force continues to evaluate how the new and old codes compare in terms of protecting solar access. “In the modeling we’ve done, there’s slightly less impact on solar in the new code than the old.”

Park said the new code does much to improve the sustainability of our built environment by “adding density around light rail station areas” and channeling new development into areas identified by Blueprint Denver as Areas of Change, as well as removing the non-conforming status of residential lots under 6,000 square feet, “so you no longer have to demolish two homes to create one legal lot. The most sustainable structure is the one that’s already built.”

Reducing the need for large paved parking areas helps to reduce urban “heat island” effects, according to Park. “We are calibrating parking by context. We have higher requirements for suburban than urban areas, in an effort to not build more than we need, and to not require more than a developer or building owner needs, which just raises costs.”

Gerry Todd is an architect and engineer, and a founding member of the locally based Citizens Think Tank of Growing A Legacy Economy. Todd sees the need to protect and encourage solar uses as far more than a three percent solution.

“The zoning code has phenomenal potential (to encourage sustainable development) if only it would fulfill it in preserving solar access – to pull together the many silver BBs that will be the solution. There is no silver bullet,” said Todd, “just silver BBs. There are many solar solutions that the zoning code can facilitate: (electricity generating) photovoltaics; solar thermal for space heating; solar thermal with storage for future needs; solar thermal for domestic hot water; solar clothes drying, which was done 100 percent until two generations ago; summer gardening; and winter cold frame gardening.”

Todd is adamant that sunlight be protected to maintain opportunities for backyard urban agriculture that would reduce the need to bring so much food to local markets from faraway farmers’ fields. “Growing, transporting and refrigerating food requires about 10 calories of fossil fuel energy for every calorie of food energy we consume. The existing chain of getting food to market takes up the same fossil fuel energy as the personal transportation sector. That piece of fruit may look like an apple, but its an apple filled with oil.”

K.K. DuVivier, Director of the Environmental and Natural Resources Law Program at University of Denver’s Sturm School of Law points out that in days gone by one’s right to receive sunlight without obstruction was firmly based on long accepted tenets of law. “The Doctrine of Ancient Lights was based on Old English law saying basically that a homeowner had an absolute right to receive sunlight that had fallen on their property for a certain length of time (in traditional English law, 20 years or more), after which you could not build a structure to impede that sunlight.”

DuVivier points to other cities that have strengthened protection for solar access beyond what Denver is considering: Boulder, Colo., and Ashland, Ore., both have instituted solar system permitting programs that include granting of solar easements that go a long way in protecting a homeowner’s investment in sunlight capture; Santa Cruz, Calif., has instituted a solar system registry that alerts contractors to the presence of existing systems to be considered in designing future developments; Los Angeles, Calif., exempts solar systems from standard building height limitations, but requires that for each foot the system protrudes above the standard limit, it must be set back one more foot from the edge of the roof.

Another potential solar problem area that has traditionally been looked at as an untouchable environmental imperative – our city’s tree canopy – concerns DuVivier, as well. “Several states have trees as a hot button issue,” she said. “Some have restrictions on trees that might block solar panels. I know we want more trees for oxygen, but it’s about having the right trees in the right place. Not every tree is equal. We want to encourage species that provide shade and oxygen but allow the sun to get to solar panels and gardens.”

In addition to going farther to preserve solar access, 3PA’s McFadden would like to see Denver pay more attention to other issues including a broader allowance for backyard husbandry (chickens, goats, etc.), vertical gardening (indoor gardening in high-rise structures) and reducing rainwater runoff from residential lots through rainwater catchment (which is quite dicey due to traditional water laws that forbid such diversion of the gold that falls from the sky – although Colorado State Senate bill SB09-080, signed by Gov. Ritter last April, allows some rural residents with exempt wells not administered under the state’s traditional priority water rights system to begin capturing rainwater from their rooftops), rooftop gardens and other techniques for diverting the liquid gold to onsite needs rather than down the gutter to the storm drain, to the rivers.

Michael Henry is a member of the city’s Zoning Code Task Force, and chairperson of Inter-Neighborhood Cooperation’s Zoning and Planning subcommittee. Henry told The Profile, “Unfortunately, the solar issue is sort of up in the air. About a year ago INC’s Zoning Committee made a strong request to the Task Force to carefully study and implement ideas that would improve solar access. About eight or nine months ago, in response, the city hired CH2M Hill to study the draft code and study what would be the solar impacts. We have not ever been able to have a face-to-face with anybody with CH2M Hill and haven’t seen their written report. I believe people have the right to a fair study and analysis of the solar access issues and are there better ways to tweak it. I don’t have a good answer as to whether the study was well done.”

While willing to support a full airing of the solar access issues, Henry agrees that there is no silver bullet where sustainability is concerned. “I’m not willing to go along with some of the environmental folks and say solar is the most important value,” he stated. “Density is an important value as well. The thing is, it needs to be carefully balanced.”

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