County seeks to add chapter to land-use code: Public has scant time to see ‘1041’ rules before hearing

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After summarily rejecting the rough draft of a lengthy proposed addition to its land-use code – one that appeared to assert the county’s ultimate authority over public lands – the Montezuma County Commission is preparing to chew on a much smaller bite of local control.

“We read the draft from P&Z [Planning and Zoning] and it was (too) far-reaching,” Commissioner Larry Don Suckla said in a Dec. 31 interview with the Free Press. “We feel like if we’re going to get approval it needed to be more narrow in scope – if you take too big a bite, there’s a better chance of getting it turned down.”

A public hearing has been set for Jan. 11 at 1:30 p.m. on a proposal – yet to be revealed as of press time – that would impose what are known as 1041 regulations on Phil’s World, a 3100-acre bike trail system east of Cortez.

HB 1041 regulations, named after the Colorado law that created them, give local governments a voice in areas or activities of “statewide interest.” The 1974 state law encourages counties to designate such areas and hold hearings to determine if proposed activities should be permitted or if any mitigation is needed.

However, whether the law was intended to provide local entities with such sweeping powers as apparently assumed by some Montezuma officials is subject to debate, and would likely be tested in court.

According to Suckla, the immediate concern is protecting Phil’s World from potential oil and gas development. The trail system, seen as a growing economic boon to the county, has become popular among mountain-bikers internationally. The Southwest Colorado Cycling Association, which leases the land from the state and the Bureau of Land Management, has proposed expanding the routes to nearly twice their present length. That proposal is awaiting approval of the BLM.

“What we’re very concerned about is the drilling itself on Phil’s World, or roads that would go through Phil’s World to get to drilling sites,” Suckla explained. In the past, several exploratory wells drilled on the outskirts of the trail system have come up dry, but he has previously voiced concerns that new technologies might spark renewed interest in extracting whatever oil or gas may be there.

However, Boulder attorney Barbara Green, an expert on 1041 issues, told the Free Press last fall that the Colorado Oil and Gas Conservation Commission would most likely take a bleak view of any local attempt to regulate exploration or extraction of those minerals, since that has historically been its purview. She said the COGCC has sued over similar issues in the past.

Green also asserted that the state legislature had intended 1041 regulations only to provide another means of mitigating impacts of development rather than giving local governments a veto power on the use of public lands.

Bowing to time constraints imposed by the county commissioners, the Planning and Zoning Commission in December had forwarded a 50-plus-page proposal hurriedly cobbled together from various other counties’ 1041 regulations. The document appeared to essentially claim local control over most public and private lands in the entire county, and discussion among P&Z board members had also indicated this was the intent.

The commissioners therefore instructed county attorney John Baxter to draft more modest regulations that would apply only to the public lands encompassed by Phil’s World, which Baxter said probably could be done with a one-page document. He is supposed to present that proposal to the commission on Jan. 4, just a week before the public hearing is scheduled. (A notice of the hearing published Dec. 4 in the Cortez Journal said the proposed regulations would be available for review, but so far all that’s been available for public perusal has been the P&Z draft that was subsequently scotched, and that was not on the county website.)

If approved, whatever Baxter produces would become part of the land-use code – possibly a separate chapter, Suckla said. And this requires a public hearing during which citizens’ concerns may be aired, according to code regulations.

“Hopefully he’s supposed to have something for us at the meeting on Monday [Jan. 4]” that would designate only the state and federal lands on which Phil’s World is located as an area of state interest, Suckla said.

Although Suckla conceded that this would leave a short window of opportunity for citizens to examine the new proposal, he acknowledged soliciting public input is important.

“If he has it ready, the commissioners can review it that evening and then on Tuesday or Wednesday, we can put it on the website – that way anybody can look at it.

“You never know what will come out of the woodwork when you do something like this, so it’s best to get it out there and people can make comments on it,” he added. “If in the end there’s an overwhelming majority against it – I just can’t see that – then we’ll have to go in a different direction.”

However, concerns have already been expressed that there has been too little time allotted for the public to examine or explore its implications.

At its Dec. 17 meeting, the P&Z commission enthusiastically supported the concept of 1041 regulations, although the five-member group seemed to have a very different idea than the county commission of what they would entail.

1041 regulations are generally much more complex than one page of regulations. Chaffee County’s, for instance, which deal with municipal and industrial water and sewage projects, geothermal projects, development of new communities, development in areas containing natural resources of statewide interest, are some 140 pages long. On the other hand, Rio Blanco’s are just one page, but don’t mention any specific areas.

The statutes allow counties to regulate a wide range of projects, including citing of new highways and airports, development of water and wastewater treatment systems, and new communities. The regulations are in addition to any zoning or subdivision regulations which may apply to a project.

Chairman Dennis Atwater, in his final meeting after 10 years of service on P&Z, discussed the lengthy draft that had been prepared by planning staff and said the county would need to have such regulations in place whenever it decided to designate an area of state interest.

That draft suggested four areas of state interest be named in Montezuma County: the Dolores River Valley, road rights-of-way and rights of use, Phil’s World, and solar/alternative energy.

Board member Kelly Belt asked whether the 1041 regulations would be “applicable to where they (the Forest Service and BLM) are shutting down roads” on public lands, and Atwater said yes. He said if the county designated “oil and gas” as an area or activity of state interest, the area involved would probably have to be the entire county. “It would be too burdensome to take every known and possible site, so you could just say the boundaries of the county” were the area of interest, Atwater suggested.

Atwater added it would likely be a separate chapter of the land-use code, since P&Z had looked at 1041 regulations in five other counties and they all had them as a freestanding chapter.

Audience member M.B. McAfee said that while she liked the idea of using 1041 to protect Phil’s World, the process seemed like “a rush job” since the implications of the regulations would be so far-reaching.

“It’s a big deal to add a chapter to the land-use code,” she said.

“It could have impacts to a lot of different things. There may be a lot of folks who rebel about putting a new chapter” in the code, she added, and said the public should be given more time to become educated. She pointed out that the topic had not even been listed on P&Z’s agenda that night but had been raised after other business was finished.

“This is awfully fast and there could be bad repercussions,” she said. “Given the holiday season, I think this is a rush job and I don’t think that is very fair.”

“What could be negative about local control on our own land?” Belt asked. McAfee said she had talked with several attorneys about 1041 and had tried to study it over the past six months, but found it complicated.

“I’m for local control, but there may be people who’d like time to just look at the pages you all are looking at,” she said. “This is like the TDRs – it’s hard to understand.” TDRs, transferable development rights, were a system designed to control density in Dolores River Valley until repealed by the county commissioners in 2013.

Belt said the only negative opinions about 1041 would be from “people concerned about losing federal control” and said he favored the rules “if this can help keep some of those roads open.” Atwater said the commissioners had assigned P&Z the task of studying the regulations and were setting the schedule, adding, “There’s no time like the present.”

A section of the law regarding 1041 stipulates that the local government considering designating an area or activity of state interest must hold a public hearing and give notice of the hearing “and the place at which materials relating to the matter to be designated and guidelines may be examined” at least 30 days but not more than 60 days before the hearing. The Journal notice was published within that time frame, but the materials themselves were not expected to be available until less than a week before the hearing.

McAfee told Atwater the concept of 1041 was not easy to understand and added that the legislation “hardly mentions the things you want to protect” but instead talks about utilities and water developments.

“It’s innovative to try to apply it to us, it’s visionary, but this is our road map for the future and to help the public understand all that” there would need to be more time, she said.

Another audience member, Ellen Foster, agreed. She said by the time the county came out with its final draft there would be almost no time for any interested person to examine the proposed rules.

But Belt downplayed the public’s interest in such matters.

“The majority of people in our county are not going to know anything about this because they choose not to,” Belt said. “How many people want to go out and educate themselves about the things in our county? Not a lot.” He noted that McAfee, Foster, and another woman, Gala Pock, are often the only people in attendance at P&Z.

Atwater finally proposed that P&Z recommend to the commissioners that they pass a short resolution establishing 1041 regulations in the county and recommend Phil’s World be designated as an “activity of state interest” under that heading. After that, he said, the county can “grow it a piece at a time.”

The board made a motion to that effect and it passed 5-0.

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From January 2016.