One chapter in an ongoing dispute over managing growth in the Dolores River Valley came to an end in December, as plaintiffs dropped a lawsuit challenging a decision made by the Montezuma County commissioners.
On July 7, 2014, the commissioners had voted 2-1 to jettison a chapter of the county land-use code that established a system of transferable development rights, or TDRs, within the Dolores River Valley. Their decision came after a lengthy public hearing in which the vast majority of those who spoke said they supported the TDR system as a means of limiting growth in the valley.
A TDR system allows landowners to sell development rights without actually selling their land. In the Dolores River Valley, landowners had approximately one TDR for every 10 acres they owned (this formula could be affected by other factors such as whether they were within the floodplain and how steep the slope of their land was).
In August, two county landowners and a new nonprofit group called Protect Montezuma County Water sued the commissioners over the vote to end TDRs.
Now, the decision to end the lawsuit means the commissioners can move ahead with reimbursing river-valley landowners who had paid to have their TDRs platted.
It puts an end to a decade-old system that had been implemented upon the recommendation of a citizens’ working group that met over a two-year period to study ways to protect water quality and riparian health in the valley.
And, although the commissioners left intact the 10-acre minimum lot size in the river valley, the decision effectively doubles potential density, because two residential structures are now allowed per 10 acres instead of the one allowed under the TDR system.
Members of Protect Montezuma County Water were tight-lipped about the reasons they chose to drop the suit. Greg Kemp, one of the two individual landowners who were plaintiffs, told the Free Press only, “I will say on a personal level that I am very disappointed.”
Erin Johnson, attorney for the plaintiffs, said, “The group determined that continuing to pursue the lawsuit wouldn’t be the best way to pursue their objectives.”
She said the group plans to remain intact and to watch further developments regarding the river valley.
“They are staying organized to monitor issues in the county affecting water quality,” she said.
The suit had a two-pronged approach. It charged that the county had violated state law by acting in an “arbitrary and capricious” manner and that the board had “abused its discretion, and exceeded its jurisdiction in voting to eliminate TDRS in a fashion that does not indicate understanding of the purpose and function of TDRs. No findings of fact or a basis of other credible information to support the decision of the BOCC was given.”
The complaint stated that the board “never stated any defect with the TDRs system, other than it confused them.”
“No written findings were made by the Board; no discussion was made of the specific reason for or need to eliminate the TDR that could not have [been] addressed through amendments provided by the planning department,” the complaint further stated.
The other basis for the complaint was a charge that by eliminating the TDR system, the board had unconstitutionally committed a “taking” of a private property right without compensation because, “The TDRs created a property interest that was available for purchase by any person or entity, to develop or hold for speculation, for example sale to a third party developer.”
Then-Commissioner Steve Chappell had been the most eager to abandon the TDR system, voicing concerns that it was confusing to landowners and that it had not been effective because no TDRs had ever changed hands in the 10 years the system was in place.
TDR systems have been implemented in numerous locations around the country, with varying results.
According to different sites on the Internet, it is not uncommon for a TDR program to take a long time before it is fully implemented and utilized, and in times when the real-estate market is sluggish, TDRs are not likely to be exchanged.
Marin County, Calif., adopted TDRs in 1981, but only one TDR project has been approved there, according to the web site smartpreservation.net.
“Even though the demand for new development in Marin County is high,” the web site states, “the pace of development is relatively slow, about 0.3 percent per year; this may be due to the fact that prime sites have already been developed, leaving parcels with steep slopes and other development difficulties.” This may explain in part why only one TDR project has been approved, the site said.
A 2012 paper written by Margaret Walls, research director and senior fellow at Resources for the Future, a nonpartisan nonprofit that does environmental research, described one of the country’s most successful TDR systems, in Calvert County, Md.
“It has had an active private market for TDRs and as a result has permanently preserved a large amount of farm and forest lands,” Walls stated in the paper.
Titled, “Markets for Development Rights: Lessons Learned From Three Decades of a TDR Program,” the paper said many other TDR programs are relatively inactive in comparison to Calvert County’s robust one.
“Even when TDR programs are well designed, however, there can be problems that arise,” Wall wrote. “Thin markets may be an issue, especially because the programs are typically implemented in a single jurisdiction, which limits the number of buyers and sellers. . . .
“Probably the biggest hurdle for TDRs is the administrative burden for local governments. TDR programs can be relatively complex to manage. . . .
“If these problems can be overcome and the TDR program and accompanying zoning regulations set up to achieve an active private market for development rights, then TDRs have much to recommend them. . .but as with many market-based approaches to environmental and natural resource problems, the devil is in the details.”