by Gail Binkly | September 1, 2013 4:12 pm
Regulations guiding development in the Dolores River Valley were lambasted as examples of government overreach, and praised as needed to protect water quality, at a public hearing Aug. 20 in the town of Dolores.
The hearing, which drew nearly a hundred people, was held by the Montezuma County Planning and Zoning Commission to gather input on some proposed changes to the county’s land-use code that would ease restrictions regarding setbacks along the river.
Dennis Atwater, P&Z chair and moderator for the meeting, said the original regulations, called the Dolores River Valley Plan, were developed by a citizens’ working group a decade ago and had been prompted by concerns about possible developments such as golf courses and condos along the river.
“The No. 1 priority of the plan is to protect water quality,” he said. “All of us that live here who aren’t on our own well depend on that water.”
Atwater said the Town of Dolores had passed a resolution dated Aug. 12 supporting protection of the Dolores River water quality as in the existing DRV plan.
The meeting was to take input on three specific proposed changes related to the existing 100-foot setback rule along the river:
• A definition of “structures”;
• A list of structures that would be exempted from the setback regulations. (Current rules state that, within the valley, all new commercial and residential construction must be set back 100 feet from the stream bank. The new rules would allow certain recreational structures such as patios and decks that are not over 400 square feet, have no plumbing and are not enclosed on more than one side.)
• Civil and criminal penalties for noncompliance with the rules.
However, many people who spoke did not address the proposed changes specifically, instead using the opportunity to talk about broader concerns.
Dolores Mayor Val Truelsen said not everyone’s opinions were relevant. “I greatly appreciate comments from the landowners on the Dolores River and people in the town of Dolores. Others should be ignored.”
But Greg Kemp of Mancos responded that such an attitude is “very shortsighted.”
“I’m not a water recreationist, but as a user of the water that comes from the Dolores River, my life depends on it, as does the livelihood of many thousands of people in Montezuma County. . . so in my opinion everybody who lives in Montezuma County has standing to express an opinion,” Kemp said.
Larry Berger of Cortez agreed. “Everything you do will affect us down here.”
Charles Unsworth, a valley landowner, asked why “equipment” was listed under the definition of “structure,” which under the proposed rule would be defined as “any building, equipment, device, or other facility made by people and which is fixed to land, including a gas or liquid storage tanks above or below ground, as well as manufactured homes and recreational vehicles.” This definition is taken from a floodplain resolution passed by the county commissioners in 2008.
Atwater said agricultural structures including fences and pumps are permitted within the setback area under the proposed rules. He said the idea of setbacks is “to avoid degradation of water and add another layer of protection,” and 50 feet is the minimal standard in the state.
“La Plata County has a 50-foot setback on the Animas River, but it also has additional restrictions on what homeowners can do,” he noted.
He said the working group’s original proposal was to establish the floodplain boundary as a setback, but that would have eliminated a “whole lot more of the valley.”
Julieta Unsworth expressed concern about listing an RV as a structure. Atwater said RVs would be allowed to stay in one place for 90 days, but she said they ought to be allowed to stay without restrictions. “Is it my land or is it your land is my question,” she said.
Marianne Mate, who served on the working group that developed the original rules, said, “When we looked at some of the science from other communities where there was too much density, things that were floating down the river were unbelievable – RVs, carports, cars, barns. I’ve seen chairs, parts of cars [on the Dolores]. Anything that could cut loose of the ground and start floating down the river is a structure.”
But Larry Fitzwater, who lives near Bear Creek, said trees also have the potential to fall and be carried down the river. “Are you going to cut all the cottonwoods and the spruce?” he asked.
Tony Littlejohn of Mancos said vehicles should be counted as structures because “they would wash into the river just like every other structure in a 30-, 50- or 100-year flood that could occur any day now. . . and we don’t need a lot of human-fabricated debris in the river.” He said cars are hard to remove from the river.
Atwater said the last hundred-year flood on the Dolores was in October 1911, and the river was flowing at 10,000 cubic feet per second or more. He said there have been five floods in the last 90 years that were at 7,000 or more cfs.
Pat Kantor, also of the valley and a member of the original working group, asked why poured concrete slabs aren’t included in the definition of “structure”, saying no poured concrete slabs or impermeable foundations should be allowed within the setback.
The floodplain slows the velocity of water coming down the river in the event of a flood, she said. “It absorbs sediment, replenishes the underground water and supplies nutrients to the soil. . . . The floodplain is really very important, and obstructing the floodway diminishes the natural capacity of the floodplain to save lives and keep the river environment flourishing.
“We looked to the future when we were making the plan,” she added. “It’s just not one concrete slab that’s not permeable [that would cause problems]. We’re looking at many. The more we develop, the more there could be, especially for a resort development, and every slab diminishes the ability of the floodplain to act as it should.”
Atwater said 22,788 acres have been identified as being in the valley, which includes 31 miles of river, 547 parcels surrounded by public land, and 392 different landowners. “Fortunately this community got ahead of the problem instead of behind it.”
Atwater said in contrast, some other places along waterways, such as Oak Creek Canyon in Arizona, are “built out.”
“I love the place but it’s way overbuilt,” he said. “Coconino County was way behind the curve. They reacted when it was too late. Telluride was way behind the curve. So should we do this now or should we wait 10 more years? I think we should do it now.”
Although the system of Transferable Development Rights that governs growth in the valley was not on the table for discussion, many people brought it up. In the Dolores River Valley, people are allowed one residential structure per every 10 acres they own outside the floodplain. That right is a TDR, and it can be sold separately from the land. For example, someone who doesn’t want to build a second home on his or her 20 acres can sell that TDR to someone who wants two homes on a 10-acre parcel.
Atwater said there are 620 TDRs available in the valley, but without those, another 2,495 more residences could be built. “Without TDRs, this valley could be built to 1000 percent of what it was in 2002,” he said. He said adding many homes into the valley could raise numerous concerns. “There is an incredible amount of chemicals that come off a house – just the roof alone.”
He also noted that rivers and riverbanks don’t naturally stay stable, but homeowners work to stabilize them, affecting the way the water flows and the way the floodplain is shaped.
“Setbacks are specifically for water quality. The TDRs are for density,” Atwater said.
Charles Unsworth pointed out that cattle and wild animals also contaminate the river. “You’re trying to say this river should be made pristine and it won’t,” he said, adding that in a flood the Dolores sewage-treatment facility would flood too.
Lightenburger said it was “bizarre” to limit decks to 400 square feet, a comment that was echoed by several other people who expressed resentment over the restrictions within the setback area.
Lightenburger asked why the town of Dolores has no setback, and suggested reducing the county’s to 50 feet.
Atwater was asked whether there is data showing that there is a significant difference between a setback of 50 and 100 feet.
He said there is such data and the planning commission and working group did look at it.
“As they looked at setback distances, considering the terrain, it seemed like 100 feet was the right distance. Riparian areas generally are 100 to 300 feet. We’re at the minimum of that. That riparian area is absolutely critical to the health of our environment and water.”
Fitzwater asked the percentage of people on the working group that lived upriver. Atwater was unable to say off the top of his head, but he said there were about 20 members on the working group, all from the local area. The group met 18 times over the course of about two years.
According to a list later provided to the Free Press by the county planning office, the group had 15 citizen members, three staff members and three consultants. Of the citizen members, at least eight owned land in the river valley at the time, according to people who served on the group, and two others lived in the town of Dolores.
Atwater said, “In some cases there are folks who don’t live in the valley who care more about it than those who do. That’s my opinion.”
Chris Majors, a rancher and accountant, told the crowd he was more interested in keeping density low in the valley than in worrying about setbacks.
“I served on the evil, evil Dolores River group,” Majors said. “To me, the biggest protection for ag irrigation water is reducing density. I’m a little concerned about getting hung up on the setbacks. I hope we can let people do what they want, with the exception of houses with septics, on the river. The biggest protection is the 10-acre lot size.”
Pat Kantor agreed. “I live on the river and I cherish it,” she said. “I own the property on either side of the river but I don’t own the river… Those of us who live on the river have an obligation to take care of that river for the health and welfare of the people who live here.” She said the Dolores is “the lifeblood of the county” and is crucial to its economy.
“I think the Dolores River Valley Plan has been successful,” she added. “Water quality is still good.”
But others said the TDR regulations are too restrictive, impinging on the rights of people who own small lots that are “grandfathered” because they were created before the current system. Likewise, they said, there is no provision for people who want to build within 100 feet of the river because their land is elevated well above the river level.
Many brought up the fact that no TDRs have been bought or sold since the regulations were adopted into the county’s landuse code in December 2008.
Some raised the possibility of extending a sewer line up the river. Atwater said the cost of doing so was found to be prohibitive in 2002, about $42,000 per lot.
“This is a very narrow valley so it would require some above-ground sewer line,” he said. “How would that work in a flood?
“You would have to have package treatment plants along the route, not a very good idea when you’re trying to protect river quality. And they are state-regulated. It’s beyond the county to enforce that.” The state, Atwater added, has done “a damn poor job” of enforcing such regulations. “The county has seen numerous complaints on smells and stuff coming out of those plants onto the surface.”
Josh Munson said he had lived here 10 years and that the valley plan should not be changed “on a whim.”
“And if it is to be changed, we should consider the long-term future of the valley,” Munson said, adding that the common good should take precedence over individual desires. He said the penalties for noncompliance should be increased.
Joel Kantor agreed, saying he had lived on the river 14 years. “As far as I can see it’s a surcharge for building on the river.” He compared it to “shoot, shovel and shut up.”
Atwater said under state law the commissioners can increase the penalties or remove structures.
Others asked whether warnings would first be given to noncompliant landowners. Planning Director Susan Carver said that could be done.
The planning commission is set to present a summary of the public input gathered from the meeting and from a survey on the county’s web site at the county commissioners’ next meeting on Monday, Sept. 9, at 2 p.m.
The commissioners have not yet said what deadline they might set for making a decision on the setback question or for considering TDRs, but they seem poised and eager to make changes in the original regulations. At previous meetings they have questioned the current setbacks, saying people need to be able to enjoy their riverfront property, as well as the TDR system, with Steve Chappell and Larry Don Suckla both saying they do not like TDRs.
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