Shipping containers were not Mark Gelband’s first choice.
Gelband’s house, at the foot of Flagstaff Mountain near the west end of College Avenue, made headlines a few weeks ago when he installed a 53-foot-long blue metal box on his property. The University of Colorado Boulder communications director says he plans to use three containers to give his long, narrow house a second story.
But there’s a lot more than the strange-news headline. Gelband installed the container after his initial plans for a traditional second floor were blocked by the city. And he says it’s because one of his neighbors is Susan Osborne, a former mayor and city council member.
Gelband makes two accusations against Osborne, now a retiree: He claims that Osborne, a former city planner, inserted a short phrase into city code specifically to limit how much he can build on his property, and he says she pushed city officials to “hassle” him about his construction.
Osborne denies Gelband’s accusations; she says she made no changes to city code to benefit her personally and she has no special influence with the city.
“I don’t know what his problem is,” Osborne says, “but I know that he sees a lot of conspiracies when there absolutely are none.”
Gelband’s house is an unusual structure to say the least, attracting attention from residents of Boulder and beyond. Julee Herdt, a professor in CU-Denver’s College of Architecture and Planning, calls it a “beautiful project.”
His neighbors might say differently. Osborne says none of the neighbors are thrilled about the house.
“I think the neighbors are all pretty much just resigned to it,” she says. “Change isn’t easy.”
And it’s not the change Gelband first envisioned. He says the trouble started in 2008, when city council took on the compatible development ordinance, sometimes called “pop and scrape.” In its draft stages, the ordinance was passed among committees, city council members and experts in urban planning and architecture.
And at some point, a short clause was added that sets a strict height limit on a house if a retaining wall forms the side border of a property.
Picture this: The maximum height of your house is set by a plane — the geometry kind, not the Wright brothers kind — hovering in the air. This “bulk plane” is at a 45-degree angle to the ground, starting 12 feet off the ground at your property line and going upward.
Unless there’s a retaining wall on the property line, in which case the bulk plane doesn’t start 12 feet off the ground; it starts 12 feet above the base of the wall, according to the city code. And the height of a wall’s base can vary on each side when it is on a slope, like the one separating the Gelband and Osborne properties. So where an average house gets those full 12 feet, the higher house — in this case Gelband’s — gets less.
Thus the shipping containers. The long, thin containers fit within the bulk planes of Gelband’s property.
Construction at the south end of Gelband’s property | Photo by Steve Weishampel
Gelband says that having a retaining wall on the property line is extremely rare. It exists, he says, “in less than 20 homes in Boulder.”
His theory is that Osborne inserted the rule to block him from ever building a second story. Osborne, then a city council member, could have worked in the language because she knew it would limit her neighbor from building a second story.
But the city does not track how often that situation happens in Boulder.
“It’s not information that we even have,” says David Driskell, the city’s executive director of community planning and sustainability. “He’s made claims about it that have no basis on which to dispute.”
Nobody who spoke to Boulder Weekly could confirm or dispute Gelband’s number, which he says he arrived at by examining city maps. But multiple Boulder architects with residential experience say they’ve never encountered that condition between properties.
Something else nobody seems to know: where the phrase in the compatible development code came from. The process of composing the code was long and complicated.
“There are hundreds of pages of memos for planning board and for council,” Driskell says.
And while he says “everything is done here very transparently,” including minutes or an audio recording from every meeting, the city hasn’t been able to produce a record of the meeting where the retaining wall language was added.
While Driskell says he “wasn’t that involved,” he does assert that the retaining wall code wasn’t written just to address the Osborne-Gelband property line.
Gelband says it was.
“It’s hard for her to argue that she didn’t know how that snippet of code affects her personally,” Gelband says. “She knew when she voted for it.”
Osborne says that isn’t true.
“He’s turned what is not personal into something personal and makes things against him,” she says, “and it was so not against him. I didn’t imagine it would affect him,” she says of the compatible development ordinance as a whole.
In fact, she says she wasn’t aware of the short phrase about retaining walls until after the code was passed.
“I didn’t even know it was in the ordinance until he did a FOIA on my email,” Osborne says, referring to the federal Freedom of Information Act. Gelband has filed Colorado Open Records Act requests with the city about this issue.
“I get this call from the city clerk,” Osborne says, “saying that Mark has requested a FOIA about this clause in the ordinance. I didn’t know this clause was in the ordinance.”
While she denies inserting the language, Osborne says she supports it. She says the limit makes sense, because Gelband’s house sits above hers. A full second story on Gelband’s house could block her view to the west.
A resident restricted by city codes can request a variance to build outside the city’s codes, but when Gelband applied to the city for a variance, his neighbors complained, says Mark Gerwing, Gelband’s architect.
“Even though staff was recommending in favor, a lot of Mark’s neighbors came out against the project,” he says. “A lot of it didn’t really pertain to our initial request, but the board of zoning appeals decided to give us a continuance instead of an approval or denial.”
The board of zoning appeals also directed Gelband and Gerwing to work in collaboration with his neighbors to decide on a design for Gelband’s house. It’s an unusual step, the architect says.
“I have never heard of that happening before,” Gerwing says.
A statement from Boulder spokeswoman Sarah Huntley contradicts Gerwing’s claim. Huntley says that the zoning board “regularly” considers impacts on neighboring properties.
“In most cases, applicants have already worked with neighbors to address such concerns,” Huntley said in an email. In other cases, the board “may vote to continue the hearing to allow for time to address neighbor concerns.”
Huntley sent the email in response to requests by Boulder Weekly to interview several city officials about Gelband’s case.
Gelband argues that the city rarely issues a building permit and then retracts it or demands more information.
“[I asked,] how many times have you asked for additional structural drawings based on the complaints of a neighbor? I said, 10 times in the last 20 years? Five times? And they wouldn’t answer,” he says. “But the truth is that it’s extremely rare.”
Huntley says it isn’t.
“It is not uncommon for the city to request additional information after approving permits,” she says in the email. She didn’t provide the last time it happened.
Driskell acknowledges that Gelband’s case is unique and calls issuing him a permit in the first place a “mistake.”
“It’s unusual in that there was information on his drawings that was not complete or correct that came to light after his permit was issued,” he says. “… It’s not usual for us to make a mistake and issue a permit, but we do have the authority to request additional information.”
The mistake was pointed out by Osborne, who looked closely at Gelband’s plans, as neighbors are permitted to do by the city’s zoning board.
“We hired an architect to look at his plans,” she says. “The first thing she asked is, ‘Where is the calculation of the bulk plane?’”
So Osborne brought that problem to city officials, and they responded by issuing the continuance on the permit. That’s a sign, Gelband says, that the city is wrapped around Osborne’s finger.
“City staff, in dealing with my building project, is going through extraordinary lengths to appease Susan,” he says. He calls it a “pattern of dishonesty and harassment.”
But Driskell says he hears from residents “every day” about their neighbors’ construction projects, and the city isn’t giving special treatment to Osborne.
“We treat everybody equally,” he says. “We’re actually more cognizant of that treatment when there are people involved who we might know personally.”
Huntley puts it even more plainly: “Susan Osborne did not influence the review process for Mr. Gelband’s house,” she says in the email.
Osborne says Gelband is imagining she’s a lot more powerful than she is.
“He imagines that I have all these friends in the planning department and all these friends in the city,” Osborne says, “and it’s insane. … Somehow he has imagined that I am this person that is weirdly powerful and I speak to people all the time and get them to do things to him and harass him, and it’s so far from the truth.”
Asked if there’s a chance her concerns were treated differently because she’s a former city council member, Osborne says, “Absolutely not. That is not the kind of city that Boulder is. … The idea that there’s any kind of favoritism or preference, he should just get off it. He should just build his house.”
Osborne says she and Gelband have discussed mediation to resolve their differences, but she doesn’t seem hopeful.
“I’m just sorry that he’s my neighbor, I guess.”