Debate heats up over Dolores River Valley rules

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Are regulations strangling growth in the Dolores River Valley, or are they protecting water quality and boosting property values?

That question is at the center of a debate raging within the valley and among local leaders. It has prompted heated discussions at recent meetings of the Montezuma County Commission – discussions that included charges of bias, accusations that peer pressure kept some people from voicing opinions at a public meeting, and statements that previous county commissioners wanted to shut down growth in the river valley.

On Sept. 16, the commissioners said they want to see existing water-quality data before proceeding with possible revisions to the Dolores River Valley Plan – the regulations that guide development in the valley. They also decided to reopen an online survey about the plan and add two questions – one of which asks whether the respondent lives in the valley and, if so, how many acres he or she owns.

In the meantime, the controversy rages on. Opponents of the plan see the current county commission as sympathetic to their views and likely to change it or scrap it entirely.

Landowner Bruce Lightenburger, who has emerged as a leader among those who want the plan overturned, fired a salvo in a letter to valley residents dated Sept. 6. Lightenburger served on the original working group that crafted the river-valley plan but has become one of its biggest critics.

“Some will tell you that I personally sat on this [group] and voted for all of these things,” he wrote in the letter. “This is true to some extent. As I remember it, I battled everyone and every decision made. I may have voted for the 100 [foot] set-back. Now, ten years later with a new group of County Commissioners we may be able to repeal these frivolous, no-growth laws. The current county commissioners see as I do, that the TDRs and the set-backs may have been a good idea, but have not worked.”

Lightenburger continued, “Ten years ago, my ranch appraised at ten million dollars; today it appraises at three, to the delight of the current Montezuma County Planning Commission.” He also said that landowners in the valley “pay higher property taxes than anyone else in the county” yet get “few services from the county if any. No water, no sewer, no gas, no cable TV, not to mention high speed internet access.”

County Assessor Mark Vanderpool told the Free Press that while real-estate or land values in the river valley are indeed the highest in the county overall, “I can’t say that rates are the highest because classifications and mill levies enter into everything. There are some people in other parts of the county that pay higher taxes.”

Since the plan was adopted, no TDRs have changed hands, “so there’s no history to see what if anything the TDRs have done to the market values,” Vanderpool said. “One could argue that a viable TDR market could add value to property rather than detract.

“There’s no data to suggest that the river valley plan or TDRs have caused a loss in value. Yes, the market in the river valley and throughout the county is slow, but values in the Dolores River Valley have held perhaps better than any values in the county.”

He said his office has definitely not seen any drop in river-valley land values as dramatic as the one Lightenburger described.

“Right now we’re seeing some high-dollar land sales up the valley that are higher than what our values are.”

Triggering concerns

The river-valley plan has two key elements: a 100-foot setback from the riverbank for all structures, and a system of Transferable Development Rights. Under that system, landowners have one TDR for each 10 acres they own. If they want to build more than one home per 10 acres, they have to purchase a TDR from another landowner that doesn’t want to develop.

Existing landowners with smaller tracts were “grandfathered” when the plan was adopted in December 2003. There is a chart that explains how many TDRs different commercial businesses need in order to operate.

The commissioners’ interest in the valley regulations appeared to be triggered April 29 when Mark Rogers, a developer and restaurant owner, came to them to ask what rights he has to develop a five-acre parcel under the TDR system. At that time, the board voiced concern that the system might be stifling growth.

A controversy over a large gazebo built by landowner Grant Smith on the river in violation of the 100-foot setback brought the plan under the spotlight again. Smith has said he didn’t understand that the setback applied to decks and gazebos.

After being contacted by the county planning department and told the gazebo was non-compliant, Smith went ahead and finished it. He has said this was necessary because the structure was not safe and might have collapsed without being completed.

On June 24, the commissioners voted 2-1 to fine Smith $1,000 for violating the code, but also granted him an immediate variance for the gazebo. Critics said the fine was so small it just amounted to a surcharge for building on the river.

All the uproar led the commissioners to call for a re-evaluation of the river plan, starting with the setback.

In response, the planning department and the Planning and Zoning Commission came up with proposed changes that would allow certain structures to be exempted from the 100-foot setback, including “patios, decks, gazebos, pergolas” no bigger than 400 square feet that don’t have plumbing and are not enclosed on more than one side.

Other changes would provide civil and criminal penalties for non-compliance with the land-use code.

‘Should remain intact’

On Aug. 20, P&Z held a public meeting in Dolores to take comments about the proposed changes. The county also took comments via an online survey from July 30 to Sept. 6. P&Z then met to evaluate the comments.

At the Sept. 9 county-commission meeting, Planning Director Susan Carver and Dennis Atwater, chair of P&Z, presented that group’s findings. Atwater said the planning commission had evaluated the comments received, which included 64 from the online survey, 29 from the public meeting, and 34 written comments, and there was “a concurrence” in favor of the new language, among both the commenters and the P&Z board.

Atwater also said that members of P&Z unanimously agreed the Dolores River Valley plan should remain essentially intact.

“After in-depth review and study it is clear that the DRVP continues to effectively accomplish its purpose,” the P&Z Commission reported in its written findings. “Each member of the P & Z Commission as well as Planning Staff were polled individually and unanimously feel strongly, that the DRVP should remain intact, just further define some issues based on public input and issues to date.”

Among the P&Z Commission’s other general conclusions:

• There is a broad lack of understanding of the Dolores River Valley Plan and its relationship to federal and state laws that also restrict development along rivers. For instance, there are state and federal floodplain and riparian-area regulations that apply not just along the Dolores River, but in all such areas.

• Enforcement is a heated issue, but most public comments favored stricter enforcement. A common concern was the recent variances granted for structures on the Dolores River.

• Planning should be “proactive rather than re-active or ‘too little – too late’.”

• Setbacks and regulation of density are key in protecting against “irreversible degradation of the watershed and water quality.”

Taking rights?

But the county commissioners appeared skeptical of P&Z’s conclusions.

“All I see from government is they take your rights and give you regulations,” said Chair Steve Chappell. “Government doesn’t give you rights.”

Atwater said some regulations protect the community from landowners who abuse the floodplain.

“So we’re not going to honor private landowner rights at all?”Chappell asked.

“I think everybody on the commission is a strong advocate of landowner rights,” Atwater said.

However, he said, it is also critical to protect water quality, as the Dolores is the source of drinking water for most of Montezuma County.

Chappell said there is already a requirement that septic systems in the river valley be engineered, so water quality may not need further protection through the 100-foot setback.

Carver said other factors can affect water quality, such as disturbance and compaction of land in the floodplain.

Atwater agreed, saying when people build homes on a waterway they trample and cut down vegetation, but those plants “are the filters that make a river work.”

Researchers say providing riparian buffers protects and improves water quality by intercepting pollutants. In the absence of proper buffer strips, there can be a greater requirement for water-treatment plants and other restoration techniques.

Homes and associated buildings impact the floodplain in many ways, Atwater said. “It takes 325 tons of gravel on average to build one housing unit and the supporting infrastructure, so you’re talking about impaction and ground disturbance,” he said. “Those are the things that make river valleys and riparian areas go away.

“That’s why we’ve gone into this kind of depth and put this much information together, because this [issue] is not a nobrainer. This requires a lot of very in-depth information, which was done in the beginning,” he said. Atwater was referring to the creation of the Dolores River Valley Plan a decade ago by a citizens’ working group that met repeatedly over 18 months or so and studied water quality, floodplains, and riparian areas. The plan they recommended was adopted by the county commissioners.

Chappell said municipalities such as Vail, Eagle, Glenwood Springs and Grand Junction allow high-density development along local rivers. “I’m sure they weighed all those issues. Why didn’t they eliminate all the development?” he asked.

Atwater said he didn’t know, but that he is familiar with areas the working group studied such as Arizona’s Oak Creek and Verde Valley, where there was degradation related to over-development. “Even Telluride said, ‘we got behind on it’,” Atwater commented.

He added, “All those areas you mentioned have building codes . . . We don’t have that. I don’t want that, but it is reasonable to protect our valley and watershed and that water supply. We need to do that and you have an obligation to do that.

“I love the valley,” he said. “I drink that water. That’s my bias.”

Atwater added, “This is not my first rodeo with a river valley.” He said 25 years ago he lived in a home above the Sweetwater River Valley in California and became involved with a group that made planning recommendations. “This was a beautiful valley similar to the Dolores River Valley, with a huge dam at the head,” he said. “We made recommendations to protect that valley that we felt were reasonable.”

However, the recommendations were ignored, he said. “First they built a golf course along the river, then another, with just a county road separating them. Then of course there had to be houses. . . .

“Those houses went under water three times in 16 years. What kind of a property right is that?”

“I don’t understand your point,” said Commissioner Larry Don Suckla. “Do we need a hundred-foot setback on all our streams?”

“I’m just here to report facts of the study,” Atwater said. “We [P&Z] were asked to study this plan and we have. We have spent not just hours, but days, reviewing it. This DRVP appears to have rolled along for 10 years and accomplished its purpose. We are never going to please everybody, but we have come out of this with a consensus.”

Chappell said former commissioners had stated they didn’t want to see the Dolores River Valley developed, and that was the real intent behind the plan.

“Are we getting to the point where we’re just socialistic?” he asked.

“Well, I don’t think so,” Atwater said.

Chappell asked about the town of Dolores’s sewage lagoons, which lie right along the river, and what would happen to them if there were a flood.

“There will be good fishing in a couple years,” Atwater quipped, adding that he doesn’t know why they are situated where they are.

Commissioner Keenan Ertel said more information needs to be made readily available to prospective buyers about development restrictions in the valley. He also called for more clarity in the land-use code, including variance procedures.

The commissioners said they would consider the issues and discuss the matter again the next week.

On Sept. 16, Suckla called for three more public meetings, saying the public does not yet have enough information about the river- valley plan.

He suggested one meeting for people who want to change the plan, one for people who want to leave regulations as they are, and one to combine some of the ideas.

Suckla said the meetings should have a moderator other than Atwater, who conducted the Aug. 20 meeting and was widely praised for his even-handedness.

Atwater was skeptical of the need for more public meetings, saying the original working group had met numerous times and many of those gatherings were poorly attended by the public.

He said at the Aug. 20 meeting, 29 of 99 people in attendance spoke, and more might have given comments had it not been for “peer pressure” generated partly by a letter sent to landowners in the valley “that in my opinion was not factual and was somewhat inflammatory.”

He was referring to another letter by Lightenburger that urged people, “PLEASE HELP US preserve your private property rights and come to this meeting. VOICE YOUR OPINION. We need to stop frivolous land use codes that prohibit private landowners from getting the best use suited to their land. . . . Most people that want these laws and policies enacted do not even own land in the river valley. Without your help and input, these people will dictate to you what THEY think you should be able to do with your own land.”

Lightenburger told the Free Press in August that he did not believe his letter had been inflammatory.

Suckla said he took offense at Atwater’s resistance to more meetings and suggested

Atwater was too biased to have good judgment. Atwater said he didn’t want to offend anyone, but that he was likewise offended by charges he’d heard that P&Z skewed or weeded out public comments. Nothing was changed in any of the comments except spelling and grammar, he said.

Ertel asked what impact the TDRs and other restrictions had had on development over the last 10 years. Atwater said because of the poor economy it was difficult to judge, but he thought the impact had been to sustain or increase property values.

Carver said over the last 10 years, there was growth of 10 percent in the county vs. 6 percent in the valley.

Carver then brought up a P&Z proposal to seek expert information, because it wasn’t enough to rely solely on public opinion in such complex issues. The board agreed and said the planning department should research existing reports to see how the river’s water quality has been affected or improved over the last 10 years.

Suckla said he would like to keep the online survey open, and Carver suggested adding a question specifically about the 100-foot setback.

Chappell then suggested the question about whether the respondents own land within the river valley and, if so, how many acres.

Those questions have been added, and the survey is currently online.

The planning department will try to have more information to present to the commissioners in October, according to Carver.

In an interview with the Free Press, Atwater said he was somewhat troubled by the county commissioners’ response to the P&Z recommendations.

“There seems to be a sense that the report we gave was not acceptable, and that disturbs me because we put a lot of work into it,” Atwater said.

He supported the idea of obtaining indepth information.

“The Planning and Zoning Commission has worked to the extent of our expertise, and our recommendation was you need to get engineering reports if you want to make decisions to change the Dolores River Valley Plan, which was based on engineering data and studies. We can’t ethically go in and change that plan without accurate data.”

Atwater said he isn’t convinced that the plan is shutting down development, because it’s difficult to separate the plan’s impacts from the severe recession that began in 2008.

“The highest percentage of the homes in the Dolores River Valley are now second homes,” he said. “In this market, people are having trouble holding on to their first homes and are not buying second homes, so that is having an impact.”

He said the system in place in the valley may be protecting rather than harming property values.

“People are likely to invest where their investment is protected,” he said. “When you put regulations in place, you’re putting rights in place.”

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