To zone or not to zone: That is the question

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The Montezuma County commissioners on Dec. 19 balked at approving amendments to the county land-use code that would have given them the authority to zone un-zoned parcels and to designate areas where commercial and industrial activity would be encouraged.

The proposed amendments were the result of three years of work by the county planning commission and planning staff. They were designed to deal with concerns expressed by citizens at public meetings around the county, as well as at some contentious public hearings over proposed commercial and industrial projects.

But after lengthy discussion, the commissioners – who had another public hearing on the agenda – voted 3-0 to continue the public hearing on the amendments to an unspecified date, and to refer the amendments back to the planning commission for further work.

The move left some in the audience of about 20 puzzled as to how the planning commission could resolve the commissioners’ concerns.

“It’s very disturbing, after all the work that the planning department and the planning commission – at the direction of the commissioners – put into this entire program, to have it be disputed at the last minute,” said Greg Kemp, a Mancos-area resident and longtime advocate of land-use planning.

“I’m just mystified as to what they’re supposed to do.”

Jon Callender, a six-year member of the planning commission who helped present the proposed amendments at the meeting, said he was likewise puzzled.

“I have no idea what is really on the agenda,” Callender said. “All the meeting did was to delay action on any changes to the landuse code. How that will evolve I think will require some additional direction from the board as well as Ashton [Harrison, county administrator] and Susan [Carver, planning director].”

He said the proposed amendments were supported unanimously by the planning commission.

“A number of members of the planning commission were at the meeting and I think they were as confused about the situation as the rest of us,” he said. “That will be a topic at the [planning commission’s] January meeting.”

Callender predicted no action would be taken on the amendments in the near future.

“I’m definitely not able to say that the county commissioners are prepared to make these decisions at this point.”

GERALD KOPPENHAFFER

'I don’t have any problem putting ‘agriculture’ on that un-zoned land because it’s already basically zoned, but people that have historic businesses need protection.' — Commissioner Gerald Koppenhafer

However, Commissioner Gerald Koppenhafer told the Free Press that his concerns were fairly specific and he expects the planning commission to come back with a new proposal by next month.

“I think it will probably happen by the end of February,” Koppenhafer said.

Staying un-zoned

When the land-use code was adopted in 1998, it represented an attempt by that commission to respond to citizens who wanted more order in land-use planning, while respecting the views of many locals who feared an infringement on their private property rights.

A citizens’ working group came up with the idea of “landowner-initiated zoning” (LIZ), a system that allowed landowners to choose their own zoning. However, people who chose zoning that might be controversial – such as small-lot subdivisions or industrial uses – would have to go through a public hearing to gain final approval.

Those mass public hearings were never held, leaving many landowners believing they had zoning designations that they actually didn’t.

In addition, other landowners simply chose not to name a zone.

The result has been that, more than a decade after the land-use plan was adopted, well over 60 percent of the county remains un-zoned.

Wanting predictability

The move toward the proposed changes started with a series of public meetings in 2009 regarding the county’s broad comprehensive plan. The general feedback from those meetings was that the comp plan did not need revision, but that there was a need to eliminate un-zoned parcels to provide more predictability about future land uses so that residential landowners wouldn’t have gravel pits, gas-storage units or giant subdivisions popping up next to them unexpectedly.

In 2010, Carver and Callender came before the county commissioners several times seeking guidance and were encouraged to work toward finalizing the LIZ process by getting the entire county zoned. On June 14, 2010, the commissioners gave Carver the go-ahead to work on two options, both of which involved zoning un-zoned residential and agricultural properties according to their existing use and size.

The planning staff and planning commission then held eight public workshops around the county to inform citizens about the proposed zoning changes as well as the proposal to create commercial/industrial preference areas (which did not spark much comment on Dec. 19).

Feedback from those meetings and an online survey was heavily in support of zoning, with 80 percent of respondents saying that eliminating un-zoned parcels was a good idea.

‘Not the 1800s’

The amendments brought before the commissioners on Dec. 19 included provisions to zone un-zoned tracts according to their existing use and parcel size. Landowners would have been sent notices about the change and would have the opportunity to appeal to the county commissioners.

Rural landowners with a historic commercial or industrial use dating back to 1998, before the land-use code was implemented, would be able to continue that historic use so long as it didn’t expand beyond threshold standards. If their property were rezoned as agricultural, for instance, they would be able to continue operating an existing small business on the tract.

Their property would not automatically be rezoned as commercial or industrial because that would amount to spot zoning, which is illegal.

“We believe that the community has been involved in this process,” said Callender at the public hearing. “We tried hard to make that happen. We hope there is nothing in here that will be a big surprise to anyone.”

Tim Hunter, a longtime planning-commission member who resigned recently to run for county commissioner in 2012, said the amendments represented “long hours of research, input and debate” and that they protect “both agriculture and the rural character of the county.”

“Enactment of these land-use code changes will finally finalize LIZ and give landowners more predictability,” Hunter said.

Kemp, who attended six of the eight public meetings on the zoning changes, told the board the amendments reflected majority input from those meetings as well as what previous commissioners had in mind.

“Previous commissioners put up big signs on the highways saying, ‘Montezuma County is zoned’,” he noted. “That showed their intent.”

Pat Kantor of Dolores praised the commissioners for the proposed amendments.

“This is long past due,” she said. “We’re not back in the 1800s. If we want this place grow, people will have to be assured of where they put their investment and what will be around them. . . I congratulate you for moving ahead on this essential issue.”

‘Can of worms’

But Dave Sipe of Mancos pointed out that county voters had rejected the idea of a residential building code in 2006 (by a 57-43 percent margin) and said many were averse to zoning as well. He said the amendments would “affect a lot of people in a negative way” and would be “a big can of worms.”

“I don’t think it’s the time and place in this economy to be doing that sort of thing,” Sipe said.

And Bud Garner, a 2012 candidate for county commissioner in the Cortez district, said the original zoning scheme had been “enacted illegally” and that he did not want to see it become more restrictive.

“I would remind the public and this commission that LIZ was sold as a voluntary zoning system,” Garner said. “If this proposed change is adopted, LIZ will have, in 13 short years and three sitting boards of commissioners, moved from voluntary to mandatory.

“So 60 percent of the county is un-zoned – maybe they didn’t participate because they didn’t want to. That was their inalienable right as landowners.

“The only predictability I see in this is that it must become mandatory in order for predictability to apply.”

The most restrictive

STEVE CHAPPELL

'I’m not going to bully the county residents into a zone. Where’s the personal liberty in that? . . . If that’s their choice (to be un-zoned), it’s their choice.' Commissioner Steve Chappell

Commissioner Chappell agreed. “People who live in rural areas resist predictability,” he said after the public comments. “You have this population that wants to mandate what our zoning is going to be. I have to agree with some that say predictability is just taking away rights of people.”

Callender and Carver pointed out that being “un-zoned” does not carry as much freedom as one might think.

Under the current land-use code, landowners who are un-zoned cannot change what they are doing on their property without coming to the county for permission. If someone on an un-zoned parcel is farming, for instance, he cannot start a new industrial use or subdivide his land without county approval.

“The comment has been made many times by the planning department that unzoned property is the most restrictive classification because the only thing that’s allowed on that property is what’s been going on,” Kemp told the Free Press. “They have no other uses by right.”

Kemp said he believes that zoning protects property owners more than it restricts them.

“People need to recognize that zoning has been in existence since about the 1920s,” Kemp said. “It has been consistently upheld by the court as a protection for landowners.”

Callender agreed that zoning can give protection.

“All we would like to do is have people understand that being un-zoned is not allowing them to take actions they would not be able to do if they were zoned. This [zoning] is giving them known quantities of protection for their property.”

At the Dec. 19 meeting, Callender made a similar argument to the board.

“We have a lot of restrictions already in place,” Callender told the board. “Even in the circumstances where you don’t zone yourself, the same process [for changing land uses] is going to occur.”

He said zoning gives landowners more clarity about what they can do, because each zoning designation has a list of uses by right.

Carver also pointed out that landowners always have the right to ask for zoning changes.

But Chappell said it “goes against my grain” to zone every parcel.

“Under LIZ, was not the decision to zone a choice?” he asked. “So why are we eliminating that choice now?”

And Koppenhafer said he was concerned about parcels that might be zoned agricultural but whose owners are doing something else as well, such as running a welding shop.

Callender told the Free Press he had thought such cases could be handled individually without abandoning the land-usecode revisions.

“The questions related to Steve and Gerald’s concerns – it’s not clear to me how we will proceed because we tried to deal with those in the original document,” Callender said.

During the meeting, Administrator Harrison suggested a remedy for such situations could be adding a zone for “mixed uses.”

In an interview Dec. 29, Koppenhafer told the Free Press that that was precisely what he had been looking for in the land-use-code amendments.

“What I expect them [the planning commission] to do is come up with a mixed-use zone that you could have around your house or shop, for whatever business you’ve been doing in that locale,” he said.

Koppenhafer said many rural landowners have tracts that would logically be zoned agricultural during the new process, because agriculture would be the primary use on most of the property. However, many of those landowners are also operating small businesses such as towing businesses or repair shops on a couple acres of their land, and if their property is zoned for agriculture, they would only be able to continue that business as it is. They would not be able to expand it, and if they sold their property, the new owner would no longer be “grandfathered” for that non-conforming use.

“My problem with the whole thing is, how do you zone something like that ‘agriculture’?” Koppenhafer asked. “That’s not what that two or three acres is being used for. The rest of it probably is, but how do you put ‘agriculture’ on that part?”

He said he wanted to ensure that such owners would be able to obtain some sort of mixed-use zoning that would allow them to get a high-impact permit for their business and expand it in the future if they desired.

“We need to have some other land-use classification,” Koppenhafer said.

“We need to take care of the people that have been out there doing business all this time.”

He agreed that the idea that “un-zoned” land has more freedom is an illusion because “people that don’t zone their land and it’s un-zoned – they can never change the use of it” without seeking approval from the county.

“I told [the planning commission] I didn’t have any problem putting ‘agriculture’ on that un-zoned land because it’s already basically zoned, but these people that have historic businesses need some protection.”

Koppenhafer, a member of the working group that originally created landowner-initiated zoning, said many mistakes had been made in implementing LIZ and he wanted to make sure the zoning process went smoothly this time.

“If we’re going to do this, I don’t want to do it wrong again.”

‘Personal liberty’

In an interview Dec. 30, Chappell said he agreed with Koppenhafer’s concern about the need for a mixed-use zone, but said he has serious doubts about the whole idea of eliminating the un-zoned designation.

“I don’t really want to be the commissioner that forces zoning on the county,” Chappell said, adding that he would like to see a new voluntary zoning sign-up period opened instead. “For me to come in and say, ‘You’re this or you’re that’ and fight for that in a public hearing, I’m against that. I’m not going to bully the county residents into a zone. Where’s the personal liberty in that?”

He said he is not concerned about the majority of the county being un-zoned. “If that’s their choice, it’s their choice. It’s kind of like a choice to vote or not to vote.”

He said it was unfair to decide the zoning for the people who wound up being unzoned because of a lack of follow-through by the planning office during the original LIZ process.

“Everyone’s saying, ‘Well, LIZ didn’t work.’ If it was flawed, it was flawed in the planning office.

“So are we going to say, ‘Let’s do it ourselves because that system didn’t work’?”

Chappell said he is not opposed to some land-use planning, such as the permitting process for high-impact commercial and industrial activites.

“When it comes to that type of thing where it could impact your community and population areas, it should be considered before the commission and logical decisions should be made.”

Chappell said that, like Koppenhafer, he expects the planning commission to come back with some revised amendments in the near future.

He said he had no problem with the idea of a commercial-industrial “preference area” where such activities would be encouraged through voluntary incentives such as an expedited approval process for new businesses.

However, when it comes to zoning the entire county, Chappell said he doesn’t see the need.

“Forced zoning on the whole county — I’m not going to be the one to decide that.”

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From January 2012.