County scraps TDRs

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Commission votes 2-1 to end Dolores River Valley system

COUNTY COMISSIONERS VOTE ON TDRS

Audience members wave signs at the conclusion of a July 7 public hearing before the Montezuma County Commission over whether to retain the system of transferable development rights in the Dolores River Valley. Photo by David Long.

An integral part of the Dolores River Valley Plan, which for more than a decade has controlled growth in the environmentally sensitive area, was scrapped July 7 by the Montezuma County Commission after a lengthy public hearing.

A system of transferable development rights (TDRs), intended to limit development in the more sparsely populated upper valley and concentrate it nearer the town of Dolores, was removed from the county land-use code on a 2-1 vote, with commissioners Steve Chappell and Larry Don Suckla voting in favor of the motion and chairman Keenan Ertel against.

The commissioners left intact a provision in the code that limits lot size in the river corridor to 10 acres rather than the 3-acre minimum required in the rest of the county. However, eliminating the TDR section would appear to double the potential density in the river valley, because the code allows one residential unit and an accessory unit of up to 1,500 square feet on tracts in the rest of the county. The river-valley plan had required tracts of 10 acres or less to have just one residence.

Some 120 residents turned out for the hearing, the majority clearly in favor of having the commissioners follow the lead of the county Planning and Zoning Commission, which four times had recommended leaving the river-valley plan in place, or possibly amending it to allow for a modest increase in density near Dolores on properties where sewer hookups were available.

In removing Chapter 8 from the code, the commission became the first in Montezuma County to rescind a major decision by a previous board.

Four former commissioners had written a letter in June explaining why the plan was adopted 11 years ago and urging the board “to consider what is in the best interest of the Dolores River watershed, and all of the citizens of Montezuma County dependent on this valuable resource.”

Dewayne Findley, one of the four (with Gene Story, Kent Lindsay and Kelly Wilson) spoke at the hearing, saying he’d served on the citizens’ working group that created the river-valley plan. “We looked at the carrying capacity of the valley and worked backwards,” he said. After deciding density needed to be limited to protect water quality, the group came up with the idea of transferable development rights as a concession to landowners whose development potential had been diminished.

“The plan is not perfect,” Findley said, but he urged the board, “Don’t make any hasty decisions. . .Do no harm, first.”

Another member of the working group, Leslie Sesler, who lives in the valley, talked about the proposal that triggered the plan’s creation. Developers wanted to build a 400- acre resort on the river with an 18-hole private golf course, a 15,000-foot clubhouse, a pool, tennis courts, 10 cabins, luxury residences, two bridges over the river, 50 horse stables, and more, she said. The golf course would have been watered from a historic ditch with a No. 4 priority water right of 7 cubic feet per second –about 15 percent of the flows in the entire river some summers.

“Consider what can happen to the water if you get a bunch of big developments,” she said. “The TDR system allows big development, but it limits how many can happen.

It protects all the water users in the county.” Chris Majors, another working-group member, was one of four ranching families in the river corridor that had written the commissioners a letter in February voicing their “full support for the retention of the basic framework of the Dolores River Valley Plan and especially the ten-acre minimum lot size and the related transferable development rights.”

At the hearing, Majors said TDRs would allow his children to sell a development right while keeping their land. In contrast to a conservation easement, which extinguishes a development right, a TDR just allows it to be transferred to another party, he explained.

A total of 45 people spoke at the podium; 40 favored retaining the plan.

Most emphasized protecting water quality, as the Dolores provides drinking water for 95 percent of the county.

“Riverfront owners have to take into account that that water is a community resource,” said Janneli Miller, a Dolores landowner. Dolores Mayor Val Truelson said the current plan should be only a beginning because too much of the Dolores River drainage is not included in it, such as Lost Canyon, Beaver and House creeks, and Dolores County. “The entire watershed should be studied,” he said.

Cindy Dvergsten, who served on the planning commission for 14 years, said the county has “a 20-year history of citizen-based grassroots approach to land-use planning.”

She said 19,000 communities across the United States have plans like the Dolores Valley’s. “TDRs are a proven method of controlling density and maintaining property values,” she said.

Ken Curtis, an engineer with the Dolores Water Conservancy District, said TDRs are “a valuable private property right that avoids the financial pressure to sell, subdivide or have some form of development. . . TDR is intertwined with the rest of the plan,” he said, adding, “You can’t undo many development decisions, so please act cautiously.”

Nina Williams of Lewis said the Dolores River Valley is “one of the few remaining relatively undeveloped river valleys this state has” and said it “supports agriculture, water quality, open space and our heritage.”

Scott Clow, a river-valley landowner, said before making changes, the commissioners should seek a thorough economic-impact analysis that would consider potential flood damage within the setback and the costs of treating water that could be degraded by increased density.

“Water providers spend millions of dollars a year keeping that water clean,” Clow said. “If you get more contaminants it could double, triple, or cost exponentially more.” But the plan had a few critics. Keenan Lovett of Cortez said it had “constitutional issues” and lacked definitions of terms.

Aaron Chubbuck, who lives in the valley, said the plan was too restrictive and, “I hope that one day those who support Chapter 8 get to one day deal with a law like this on their property.”

Don Lightenburger, another river-valley landowner, said TDRs “are blatantly unfair – if they’re not unconstitutional, they’re certainly immoral.”

Several speakers suggested that the commissioners had made their decision long before the meeting.

“I want to believe that you don’t have your minds made up, and I believe everybody in this room wants to believe that,” said M.B. McAfee, who owns a cabin on the West Fork of the river. “Your further actions will let the people know whether you’re thinking critically about this issue or you’re sitting there with your minds made up and this is an exercise in futility for all of us.”

Suckla responded that he’d had his mind made up “10 times, to be exact – as we got more information then I would change my mind.”

In the end, though, he wound up taking the same position on TDRs that he’d voiced at meetings in 2013, when he said simply that he didn’t like them.

Chappell had spoken of rescinding the plan at a commission meeting in April 2013, when developer Mark Rogers complained that he was hindered from developing a five-acre parcel in the valley.

At the hearing, Chappell said if people wanted to enjoy open space, there was plenty of it where they could go for recreation. “It’s sure hard for me to know that our county is 70 percent federal land,” he said. He said the Forest Service and BLM are implementing increasingly restrictive regulations, so “it’s not going to be destroyed.”

“I’d like to think we have some liberty and freedom” on the 30 percent that is private land, Chappell said.

He also said people concerned about water quality should contact Dolores County because its land-use code doesn’t require engineered septic systems along the river; that requirement is just a county resolution.

The hearing ended with some confusion and an abrupt decision that left the audience grumbling, some of them crying, “Recall!”

Shortly after the public comment ended, Ertel said he had “more questions than answers” and indicated he wasn’t ready to make a decision. He expressed confusion over the fact that county attorney John Baxter had noticed that the 10-acre limit on lot size was contained in Chapter 5 of the land-use code as well as Chapter 8 on TDRs. Ertel wondered why the redundancy existed.

Several members of the audience tried to answer, saying Chapter 5 was about subdividing and the language was added for consistency with the TDR section.

Others pressed the board to say when it would make a decision.

Then Chappell suddenly made the motion to do away with Chapter 8, keeping the 10- acre minimum and the requirement for engineered septic systems. He had to repeat it twice because the audience hadn’t heard it.

“Because the TDRs have been confusing,” he explained. “We have had 10 years of trial and have not succeeded.” He said water quality would continue to be protected by the requirement for engineered septics. Suckla seconded the motion.

At that point the audience began frantically waving signs they’d been given by one plan supporter that read, “No vote without study group,” meaning the commission should organize a new working group to examine plan options. However, the signs went ignored and the board voted to scuttle the plan.

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