Juggling act on the Dolores River

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County planners struggle to balance property rights and public safety as they mull the valley’s management plan

After countless hours of discussion and debate about the Dolores River Valley Plan, members of the Montezuma County Planning and Zoning Commission remain in favor of leaving it basically intact.

At a meeting March 27, members of the board were polled individually on four options ranging from “no action” (retaining the plan as is) to eliminating its cornerstone – its program of transferable development rights.

No formal votes were taken, but the majority of the seven planning commissioners preferred either the no-action choice or a second, similar option under which the county would keep the TDR program but give certificates to landowners showing how many TDRs they owned. This would eliminate the need for the landowners to pay to plat their own TDRs and, in theory, would help jump-start the TDR market, which has so far been stagnant.

“I haven’t seen any compelling reasons to change,” said P&Z Chair Dennis Atwater, and most of the others on the planning group agreed.

“We’ve pretty much beat it to death,” said Bob Clayton. “What’s going to come up that’s new?”

Gala Pock echoed that sentiment, saying she was open to changes if they were good ones, “but nobody’s come up with anything that will protect the quality of the water like our present plan.”

A third option – to increase the density allowed in the river valley from the current ratio of one home per 10 acres to something closer to one per seven – got mostly negative comments from the planners. But the two newest members of the board, Mike Rosso and Mike Gaddy, said this option was better than the others.

The final choice – to eliminate the TDR program and let the valley be managed like the rest of the county, presumably with the same three-acre minimum lot size – got resounding no’s from all the commissioners except Rosso, and he was dubious about it.

“I hate telling people what to do with their property,” he said, but added that “three acres might be too small, too dense.”

A fresh look

In 2013, after a few valley landowners complained that the river-valley plan is too restrictive, the county commissioners directed the planning commission to take a new look at it.

The plan was developed by a citizens’ working group over a year and a half and adopted into the county land-use code in 2003. The TDR system was created to cap density to keep it in line with the recommendations of an engineering report that said the valley’s carrying capacity was 620 units. The program assigns landowners one TDR for every 10 acres they own outside the floodplain, and allows owners to sell development rights while still keeping the land. In other words, a person with a 20-acre tract (and thus two TDRs) who wanted to build a single home could sell one TDR to someone else who wanted to put, say, three homes on 20 acres.

Another key element of the plan is a setback requirement of 100 feet from the river.

The planning commission and county planning staff held a public hearing in Dolores on the plan last September, and also took input through surveys. A majority of the respondents supported keeping the plan. But the county commissioners have voiced concern about the fact that no TDRs have been bought or sold, and also have expressed skepticism about the need for the setback.

In September, the planning commission prepared a report for the county commissioners that advised leaving the plan alone, but that option was rejected.

In January, after further discussions, the planners suggested the county start a “bank” to exchange unclaimed TDRs and try to help the market, but the commissioners also nixed that idea. Commissioner Keenan Ertel then suggested lowering the TDR size to five or six acres.

At the March 27 meeting, Atwater said a few people had called him asking whether the county commissioners had ordered P&Z — which is only an advisory board to the county commission — to lower the TDR size. “I didn’t take it that they mandated us to do that, but that they said to look at it again,” he said.

However, he added, “You don’t have to be a weatherman to tell which way the wind is blowing” regarding the county commissioners’ agenda.

“Even if they mandated me to come up with an end result I’m not going to do that,” Atwater said. “I’m going to go with what the facts are.”

He said he would look out for the welfare of the general public, “even if it sounds socialistic.”

Taking responsibility

But how far to go in protecting the public was the subject of considerable debate.

Clayton said water quality was the No. 1 concern behind the river-valley plan, since the Dolores provides water for much of Montezuma and Dolores counties. But, Clayton said, safety is also an issue, and even a relatively minor flood could wash debris into the town of Dolores or alter its course.

Planning commissioner Tim Hunter agreed. He said greater density and a reduced setback would affect the riparian area, which acts as a “sponge” to absorb pollutants as well as flood waters. When more people build houses, concrete pads, driveways, and other structures near the river, “you interfere with the absorption ratios,” Hunter said.

Atwater cited the recent horrific mudslide in Oso, Wash., that buried scores of homes. Engineering reports had repeatedly warned that the area was at high risk for a catastrophic slide, but people were allowed to continue building there.

Gaddy asked whether it was right for the government to tell people not to build somewhere if they were willing to take the risk.

Atwater agreed that was a good question, but said counties can incur legal liability if they let people build in hazardous areas. Pock agreed, saying she’d seen a half-dozen such cases in Oregon in which people allowed to build on sand dunes or similarly unstable areas then sued the county when something went wrong.

“We can’t protect ourselves against all litigation,” Hunter commented.

“But we don’t need to invite it,” Pock said.

Hunter agreed with Gaddy that people should be responsible for the risks they take, but said it was different when their actions affected their neighbors. “Smaller floods can push something onto somebody else’s property,” he said. For instance, a shed “with who knows what stored in it” could be washed downstream.

“If you could guarantee someone will take total responsibility for their actions, that’s one thing,” Hunter said, “but it’s not going to happen.” He added, “Maybe if you want to build closer to the river you have to buy a bond. Short of that, people don’t take responsibility.”

Not as pure

Later, audience member Ken Curtis, an engineer with the Dolores Water Conservancy District, agreed that higher density can be a problem, even when septic systems are engineered, as they now must be in the valley.

“They don’t purify the water back to the pristine [condition] that came in, so there is a carrying capacity [in the valley], whether we know the exact number,” Curtis said.

Curtis said he’s been attending the planning meetings as an observer for the DWCD but was not speaking for the district, which may provide formal comments later. The DWCD supports growth and development, he said, but is also very concerned about water quality. The municipal providers it serves have identified septic systems as a concern.

He also said setbacks serve a useful function in providing a “buffer strip” for the river.

Curtis advised the board to proceed cautiously because their actions will have long-term ramifications. “You don’t want to lose sight of that clean water because it’s damn hard to get back to if you let it go too far.”

Gaddy said the discussion left him torn. “How do we protect people and protect their rights?” he asked. “I’m a little perplexed how to get there. . . .I’m searching maybe for Nirvana.”

“Aren’t we all?” quipped Hunter.

Planning commissioner Kelly Belt said the group would need much more information before making major changes. “I think we’ve been tasked with making a decision without the time and the study that originally was done [by the citizens’ working group],” he said.

‘Scare tactics’

The March 27 discussion followed a March 20 planning workshop marked by spirited debates, as audience members argued with each other and members of P&Z argued with the audience.

With more than 20 people in attendance, Atwater opened the session to audience comment after P&Z had thrashed the issues around for a while.

Two citizens addressed their individual concerns about being allowed to do what they want on land along the Dolores.

Kelen Lovett said he is considering buying 18 acres on the river and asked what he could build under the current system. After James Dietrich, the county’s natural-resources and public-lands coordinator, told him he could have one home as well as a workshop without a plumbing system and “all the decks you want,” Lovett said he supported the planning option to increase density, because it would allow him to have a house and workshop that both had plumbing.

“We’re never going to be able to develop a land-use code that serves every single citizen’s preference,” Atwater remarked.

Aaron Chubbick, who lives on a 10-acre tract along the river, said although he recently received permission from the county commissioners to remain in an existing house on the tract while building a new one, he actually wants to keep both homes but doesn’t have the additional TDR needed to do it.

“I was aware of the laws, but I had no idea it would be this difficult to keep that house,” he said. “I’ve approached everyone who had a TDR, but they didn’t want to sell.”

He also offered some specific criticisms of the river-valley plan, such as the fact that it makes no adjustment for the size of a home or the number of garages, decks, and other outbuildings, nor does it take into account whether people are actually hooked up to water and septic.

Bruce Lightenburger, who owns 622 acres on the river, was one of the most vocal critics, repeatedly accusing Atwater of trying to unduly alarm the public.

“It’s easy for people to hear your scare tactics and say we’re not going to have clean water to drink and there’s going to be a fourlane highway up there,” he said.

He said the county needed to do a survey only of river-valley landowners.

“You’re only listening to other people that don’t own land on the river,” he said.

Atwater said that was not true and the planning commission listened “to everyone that chooses to participate.” Planning Director Susan Carver added that surveys were mailed to every landowner up the valley.

Lightenburger said he’d like to build an RV park in the middle of his tract, but the numbers don’t work under the current system.

“I’d like to develop something for my kids’ future without selling my TDRs,” he said.

The 100-foot setback along both sides of the river on the 1 1/2 mile stretch he owns has essentially condemned 36 acres of his property, he said. He added, “When that big flood comes, that 100 feet won’t matter.”

Despite a report to the contrary from the county assessor, Lightenburger insisted his land had lost value because of planning restrictions. Eleven years ago it was valued at $7 million but last year it was appraised at $3 million, he said, and he attributed the change not to the weak economy but to the plan.

Lightenburger said the option of increasing density through a new formula might help the situation, “although some of you don’t want to go through the work to make it happen.”

He also said the planning commission was not forward-thinking. “What if the TDRs are all used up?” he asked.

“What if a city block has eight houses and it’s all filled up?” Atwater responded. “Do you build more houses?”

Lightenburger didn’t answer, but brought up the fact that the town of Dolores does not have setbacks as strict as the county’s.

He told Atwater, “The hundred-foot setback isn’t going to help you in the long run, Dennis. It may make you feel warm and fuzzy.”

“What makes me warm and fuzzy is when we do the best job we can possibly do to support the general public, and the general public is more than the property owners up and down the valley,” Atwater replied. “When everybody drinks that water, it goes well beyond the property owners.”

Lightenburger urged planners to “put your efforts into running a pipe up there so the effluent isn’t going back in the river.”

Atwater said while having a pipeline for sewage would be good, septic concerns aren’t the only reason to limit density. A single residence compacts soils, requires tons of gravel, and produces run-off from roofs and driveways, he said.

“That’s scare tactics!” Lightenburger cried.

“It’s science, man!” interjected county resident Larry Berger from the audience.

Atwater then addressed the idea that P&Z didn’t want to do the work to change the TDR formula. “We’re volunteers,” he said. “We don’t get paid. But we do this for the betterment of the community. Don’t tell us we don’t want to do the work.” When Berger spoke, he thanked the planning board for their efforts. “You don’t get the nice salaries the [county] commissioners get,” he said. He said although he lives on Road 22, not on the river, he drinks water supplied by the Dolores and would like the plan to stay as is.

Graham Johnson likewise supported the plan. Having lived in both Dolores and Cortez since 1998, he attended a few meetings of the working group that created the plan and was at first highly doubtful that such a diverse group could agree on anything. When they did, “I was heartily impressed and encouraged,” Johnson said, “so I’m baffled why it is being considered to be scrapped.”

After Carver mentioned that the town of Dolores had passed a resolution supporting the plan, Lightenburger’s wife, Dawn, asked Carver if she knew the population of Dolores (about 900) and the population of Cortez (around 8,000), then pointed out that Cortez had not passed a resolution about the plan. “The city has a pretty substantial stake in this,” she said.

David Reineke, who lives on the West Fork of the river, questioned why water quality was a concern when people in the river valley must have engineered septic systems. Hunter reiterated that density is an issue as well as water quality.

Asked by Gaddy whether TDRs should go away entirely, Reineke said “it wouldn’t matter one bit,” adding that since the river’s water quality hasn’t changed in the past 10 years, this was evidence the TDR system wasn’t doing any good.

Valley resident Joel Kantor called the idea of running sewer and water lines along the Dolores “so preposterous it doesn’t even warrant discussion.” The cost would be incredible, he said. “Who would pay for it? How many of the people who have wells and septic systems would want to tie in to something like that?”

Since surveys and meetings found a majority in favor of the plan, he said, “Why are we even investigating? What’s the reason for trying to scrap this thing?”

Gaddy pointed out that the planning board has been told by the county commissioners to rethink the plan. “They are elected officials. We are not,” he said.

‘Tyranny of the majority’

Kantor then asked Gaddy why he had asked every person who criticized the plan whether they wanted the TDR program scrapped, but had not asked any follow-up questions of people favoring the plan.

“I want to hear from the minority,” Gaddy said. “There is a thing called the tyranny of the majority. There’s quite a few books on that.”

Sam Carter, a resident of Dolores, spoke about the valley’s breathtaking beauty and said protecting the viewshed is important.

He said he is a board member of the Dolores River Boating Advocates and that group also supports the plan. “If there are changes, there should be as much effort put into making changes as [went into] the original plan,” he said. “I want other people to be able to see that place as beautiful as it is.”

But Gaddy and Rosso both argued with him, stressing the importance of private property rights and questioning whether it was right to ask people to make sacrifices to protect beauty and scenery.

Real-estate agent Carol Stepe said a gravel pit near her house is spewing dirty water into the river. “It does a hell of a lot more damage than houses do,” she said.

She also said she’d built her home 100 feet from the river, but the river had moved so much in the years since, it was now just 30 feet away. “How are you going to mitigate that?” she asked.

But at the March 27 meeting, Atwater said her comment demonstrated the need for the setback. “If it had been 50 feet [instead of 100], there would be 20 feet of river running through that house now,” he said.

Atwater repeated that he’s open to new options, but can’t support changes that don’t make sense. He said county planners hear comments from outside the area about the “greatness” of the river-valley plan because of the way it protects different values.

“Other communities are looking at it and saying, ‘It wasn’t too little, too late’.”

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