by Gail Binkly | December 26, 2012 9:15 pm
Even while voicing some personal distaste for zoning, the Montezuma County commissioners on Oct. 29 gave unanimous approval to land-use recommendations that move the county closer to having clear zoning designations on all private parcels.
The package of recommendations passed by the board rezoned 3,599 of the formerly “unzoned” tracts in the county, along with some tracts within recently created commercial- industrial “overlay” areas where such business development is encouraged.
“I’m not saying that zoning’s the answer to everything, because it’s not,” said Commissioner Gerald Koppenhafer. “Zoning should put compatible uses together. It’s not supposed to restrict development. It’s just to try to keep compatible uses together, and I’m not against that.”
The public hearing, which drew about 30 people, was the culmination of a long effort to establish a master zoning plan and eliminate confusion about the many “unzoned” parcels that still existed in the county well over a decade after the adoption of the county’s land-use code on July 20, 1998.
When the plan was passed, it contained a unique zoning scheme called Landowner- Initiated Zoning, soon known as “LIZ.” Property owners were given a certain time frame in which they were supposed to choose a zone for their land, according to its size and current or expected future uses. The theory was that then neighborhoods would come to take shape with compatible uses.
But two problems occurred. Many people who thought they’d signed up for a zone – because they’d sent in a letter saying they wanted this or that type of zoning – actually never were zoned. This was because anyone who picked a zone that involved commercial uses or subdividing also needed to go through a public hearing.
The other unforeseen thing was that many people – more than half the county, in fact – decided just to stay unzoned.
However, contrary to what many of them thought, remaining in that category did not mean the landowner was outside the system and could do whatever he or she pleased.
“Quite the opposite,” said Planning Director Susan Carver. “In 1998, when the county adopted LIZ, the entire county was zoned [in that process]. So all property owners that did not choose a zoning category that fit their parcel – they were put in the ‘unzoned’ category, which people had a misconception about. It was zoning.”
In fact, it was fairly restrictive zoning, because those landowners could only continue doing what they had been doing at the time of the land-use code’s adoption. If the owners of a 20-acre unzoned parcel wanted to subdivide, or start running a bed-and-breakfast, for instance, they had to come to the county for approval first.
“Since people were confused, and have been confused for 14 years, we thought it would lessen confusion if we changed the name of the category from ‘unzoned’ to ‘historic use’,” Carver said.
That was done earlier on May 7 of this year, but it didn’t clear things up.
“Some folks said, ‘I want to stay in that category because I have historic things on my property’,” said Carver.
Opening a door
Meanwhile, the county was moving forward with a “master zoning process” that had begun some three years ago. One of its goals was to persuade the many unzoned/historic use landowners to choose a better category, based on their parcel size and planned uses. As incentive, unzoned landowners were given a chance to choose an appropriate zone and have it formally approved during a blanket public hearing without paying the usual $500 fee for rezoning.
Another incentive was that each agricultural/ residential zone carries a number of “uses by right” for the landowners – things they can do without seeking county approval. Such uses include ag-related home occupations, agritourism, on-site timber harvesting, non-commercial feedlots, and nurseries and greenhouses for ag zones. For residential zones, uses by right include a state-licensed group home for up to eight people, a bedand- breakfast, and home occupations.
“It opens up a bigger door,” Carver said.
The county planning staff and planning commission held eight community-outreach meetings and spoke to dozens of groups to inform people about the proposal.
On Oct. 29, Dennis Atwater, a member of the county Planning and Zoning Commission, said the landowners’ response was “overwhelming acceptance of the plan.”
Of 3,771 landowners that were in the unzoned/historic-use zone, Atwater said, only 172 (5 percent) chose to remain there. “There was 95 percent acceptance of rezoning from ‘historic’ to an appropriate zone,” he said.
Only 11 landowners requested a zoning designation that was not approved, he said.
“For those who have become non-compliant over the past years [by engaging in unapproved activities on their property], approval of these recommendations will bring them into compliance,” Atwater said.
Another change adopted as part of the package Oct. 29 was rezoning tracts in commercial/ industrial “overlay” areas. These are areas where such development is encouraged – although such types of business may also be approved in other areas.
Carver said when the “overlay” districts were created, 1,018 landowners were notified that they sat within them and if they had a historic commercial or industrial use on their property they could request appropriate zoning and have it approved at the blanket public hearing. Approximately 130 landowners asked for commercial or industrial zoning.
She said their main question was how this would affect their property taxes, and Assessor Mark Vanderpool sent them a letter explaining that zoning designation is not considered by the assessor’s office when doing assessments.
She said the planning staff inventoried every commercial or industrial use known in the county, even driving around to spot them, and listed every such use they could find. They came up with about 580 tracts that have some type of commercial or industrial activity on them. Some existed prior to July 20, 1998, and those are “grandfathered,” meaning they can continue uninterrupted until terminated by the landowner without having to seek commercial or industrial zoning.
At the Oct. 29 public hearing, several citizens came forward with questions or concerns. Allen Maez of Lewis (Road 21) asked for the approval to be delayed until landowners had more time to study it.
Rob Pope of Cortez demanded, “Who gives you the authority?” to change his zone without his consent. But when told by Atwater that the county could not change him to a commercial zone without him requesting that, Pope was somewhat mollified.
Others spoke in favor of the proposal. Gala Pock, a new member of the planning commission, said, “I support zoning totally. Without some sort of a plan, [this] great place could be ruined for all of us, so we do need some control on how we develop. I think this is a reasonable and well-thoughtout plan.”
Greg Kemp of Mancos commended Carver and the planning commissioners and staff for their hard work and said the commercial/ industrial overlay areas would help support development.
Planning-commission member Bob Clayton said he supports the master zoning plan because “it’s going to be good for the county.”
‘Montezuma County failed you’
Commissioner Koppenhafer said the board had struggled with the issue.
“We spent a lot of nights talking about this whole deal, and we didn’t want to make people zone their property other than what they wanted to do. . . but we felt like it would give everybody an opportunity to sign their property up,” Koppenhafer said.
He spoke about how many people had thought they were zoned, but weren’t. “People think they’ve been zoned all these years because they turned in a letter… I think Montezuma County failed you at that time because we should have carried through on that process. Right now we feel like we ought to let people have that chance again.”
Koppenhafer also described the difficulty in balancing land-use planning with property rights. “If you end up with something across the road from your house that’s going to keep you up all night, you don’t want that,” he said. “But we also have to have growth and some industry and business in this county because every time somebody proposes something like that, this room fills up.
“People who should actually have the say are the ones who actually zoned their place.”
He added, “We either need it [zoning] or it needs to go away totally.”
But in 1994, under pressure from economic- development and homebuilding groups, the county commissioners agreed to put a question on the November ballot asking whether the county should “prepare a comprehensive county plan resolution which shall include a land use plan, a method for public involvement and comment in land use decisions, and a mechanism to ensure a reasonable relationship and compatibility among and between adjoining land uses” by July 1, 1996.
The resolution, which was non-binding but was a way of gauging public opinion, passed 56 to 44 percent. The commissioners then appointed 12 citizens to come up with a land-use plan; Koppenhafer was one of them.
The 1994 resolution wasn’t the only time the commissioners have “polled” the citizenry through a non-binding question. In 2006 a non-binding question asked whether a mandatory residential building code should be adopted county-wide; it failed by a 57-43 margin.
Commission Chair Steve Chappell said he was one of those who voted against having the ballot question in 1994. “I didn’t like the idea of neighbors being notified and complaining about what I’m doing,” he said. However, he added, “Sometimes zoning can help an area because it keeps things organized and compatible.”
Commissioner Larrie Rule said he is “not really in favor of zoning, but I have come to see the other way after being up here eight years.” He said zoning protects people’s rights. Commission attorney Bob Slough said the land-use code “is a work in progress and it always will be.”
At the end of the discussion, Bud Garner of Cortez gave a speech objecting to the idea of the county granting “uses by right.” He said that rights are given by God, not the government, and that the commissioners were, in effect, saying, ‘I guess we’ll have to get used to tyranny.’” He said, “This is nothing but tyranny in its inception and its ongoing carrying-out.”
Garner also noted that the land-use code was not developed by 1996 as called for in the ballot question, and added, “Since when is a vote of the people not binding?”
But the board voted 3-0 to accept the listed rezoning recommendations.
Carver acknowledged that some people are still confused about aspects of the zoning plan and said she understands.
“Until we get that information out there, I don’t think everyone will understand that entire story – that ‘unzoned’ is regulatory, ‘historic use’ is regulatory.”
Carver said the landowners who chose to stay in the historic- use zone can still change their minds and seek a different zone.
“Rezoning can always be done. Nobody is stuck in any zoning category,” she said. However, the “historic-use” zone is no longer available as an option for landowners to choose if they are changing from another zone.
The blanket approval of the rezoning recommendations on Oct. 29 was the end of the fee-free period for rezoning, she explained. However, Carver said landowners do have the option to join with other landowners in requesting a blanket hearing to rezone several parcels at once, and they could split the $500 fee.
Likewise, an individual landowner with numerous different parcels he wants to rezone can seek approval all at once and pay just a single fee.
For people in a commercial and industrial overlay area, they can come forward later and request rezoning and the fee would be waived, but they will have to go through a public hearing, she said.
Carver noted that the master zoning process started more than three years ago and involved an enormous amount of work on the part of the Planning and Zoning Commission. She thanked the current members – Atwater, Pock, Clayton, Drew Gordanier, Dennis Pottorff, and Tim Hunter – as well as former members Jonathan Callender, Guy Drew and Andy Logan for their efforts. She also praised the help of county staff members James Dietrich, Loretta Murphy, and Doug Roth.
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