July 2005

Is 'LIZ' crazy? A unique zoning system is challenged

By Gail Binkly

When people first hear about Montezuma County’s zoning system, they have one reaction: They laugh. The idea of landowners zoning themselves is so unusual that it sounds absurd, at least on first mention. Some of the county’s residents firmly believe LIZ – the county’s Landowner-Initiated Zoning scheme– IS absurd. In two separate lawsuits, citizens who found themselves next to land uses they think are incompatible with their neighborhood have challenged the whole concept of LIZ.

But county officials staunchly defend the system, saying it was a necessary compromise between property-rights advocates and those wanting conventional zoning. Because it places zoning choices in the hands of the landowner, they say, it will only work if landowners do their part and choose a zone for their property.

A chance for input

Some people have the idea that Landowner-Initiated Zoning means every landowner can do whatever he wants, when he wants. But that’s a misconception. Zoning changes, subdivisions and high-impact operations require county approval and go through a step-by-step process that involves the county planning department, planning commission, and county commissioners, and includes a public hearing.

Landowners can indeed pick their own zoning, designation, subject to approval, but their options are limited by how big a piece of land they own and where they’re located. Someone with a 3-acre tract obviously can’t be zoned A-80 (for large-scale agriculture), and someone who lives in the remote parts of the county can’t choose an Urban Service Zone, which has to be near a municipality.

Landowners can also opt to stay unzoned, but that doesn’t mean they can do whatever they want, either, though many may have that illusion. It means they can continue in their current land use but have to apply for a zoning chance if they want to do something different.

In each zoning designation, there is a list of the uses by right, along with uses that would be conditional. It’s not an anything-goes system, but it’s clearly more lenient than most zoning schemes.

“As LIZ is currently structured, every use is a conditional use,” said Mike Preston, who worked with the county during the planning process to facilitate community involvement. “Nothing is absolutely prohibited.”

However, anyone wanting to start a commercial or industrial operation that exceeds certain “threshold standards” has to obtain a high-impact permit. For example, a business that would generate more than 15 vehicle round-trips per business day or create noise of more than 70 decibels at its boundary line would have to seek a permit. LIZ and the high-impact-permit system are two major elements of the county’s land-use code.

County officials say the fact that the code requires a public hearing for high-density subdivisions and major businesses or industries is one of its most important provisions.

“Before LIZ, and it’s easy to forget this, there was absolutely no public input on any of these decisions, except under the subdivision regulations,” said Preston. “What LIZ and the highimpact permits have done is create an opportunity for a proposed development to be considered in the publichearing process, and for everybody to come in and give input.”

An unconventional county

But why not simply adopt a conventional zoning system? County leaders give a couple of reasons.

Traditionally, Montezuma County has shied away from imposing topdown land-use regulations, turning instead to citizens’ working groups to develop its land-use policies. It was such a group that created LIZ, and another group that more recently came up with development restrictions for the scenic Dolores River Valley. The other reason is simpler: A conventional zoning system would not be politically feasible in Montezuma County, officials say.

The unincorporated parts of the county were unzoned until the mid-1990s, and many residents liked it that way.

“It was pretty much do as you please,” except for some subdivision and septic regulations, said current County Commissioner Dewayne Findley. “It was zoning by variance and exemption. There was no predictability with that – it was entirely up to the discretion of elected officials.”

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.

The group, which had only one member who was a strong advocate of traditional zoning, came up with the idea of voluntary zoning initiated by each landowner him- or herself.

The county’s new comprehensive plan was adopted in January 1997. The land-use code, with the LIZ component, was adopted on July 20, 1998.

Bulls and cows

“If the (ballot) referendum had been for an official zoning system with zones to be determined by the government, the referendum would have never passed,” Findley said.

“Montezuma County was too adamant about their private property rights to have ever accepted that intrusion.”

Indeed, arguments over whether to have any zoning at all were bitter and protracted. One county resident got up at nearly every public meeting of the citizens’ planning group to complain that zoning was “Nazi-ism.” Then- Commissioner Tom Colbert, a conservative rancher who supported private property rights, was roundly lambasted at one public forum for even considering a land-use plan and accused of doing to the county “what the bulls do to the cows.”

Some members of the citizens’ group strongly opposed conventional zoning, saying it was a sham because anyone with money could get a zoning change, so what was the point? They frequently repeated the mantra, “If you want to have say over the land next to you, buy it!”

On the other side, some citizens argued that zoning is a function of government and that Landowner-Initiated Zoning was untried, unclear and overly lenient. One former county resident, perhaps prophetically, said at a public meeting that it was unconstitutional and would be thrown out the first time it was tested in court.

At the time, there were about nine counties in the state without zoning. Today, there are just three or four, most on the Eastern Plains, according to Andy Hill, planner for the Department of Local Affairs Office of Smart Growth.

She said even counties without traditional zoning usually have a permitting system that is similar to zoning. Dolores County is an example, she said.

Hill added that Montezuma County’s system is the only such system she’s ever heard of.

In adopting LIZ, the county tried to walk the line “between zero zoning and a full-blown standard method like the city of Cortez,” explained Findley. County officials hoped landowners would talk to each other about how to classify their tracts and, over time, patterns of similar zoning would evolve in neighborhoods.

How well is LIZ working?

In the seven years LIZ and the landuse code have been in place, some patterns have indeed emerged: The county’s northwest quadrant is mostly zoned for large agricultural lots, for example.

On the other hand, 46 percent of the county’s land parcels, and 56 percent of its total acreage, remain unzoned. Preston emphasized that does not mean owners of unzoned parcels can do anything they want. “Unzoned means you’re zoned into your current use,” he said.

But critics of LIZ contend that it simply does not provide residents enough protection from the possibility of living next to a land use they would find obnoxious. Anyone who’s ever lived within half a mile of another human being knows few things can ruin one’s quality of life faster than a neighbor who does something noisy, smelly or potentially hazardous with his land.

A number of highly controversial subdivision or business proposals have come before the county in the last seven years. In a few cases, LIZ was used to reject a proposal outright.

In 1999, the county turned thumbs down on a treatment center for at-risk youth proposed in an upscale neighborhood near Summit Ridge. In 2000, commissioners said no to a highimpact permit for a proposed wilderness camp for at-risk youth at the foot of Mesa Verde and also rejected a proposal for a high-density subdivision just outside Cortez city limits.

In 2001, the county also denied a request for small-lot zoning on Granath Mesa outside Dolores, where surrounding landowners were mostly zoned for larger lots.

But generally, even the most controversial developments gain approval.

County officials instead try to mitigate neighbors’ concerns by requiring the developers to enact specific measures. For example, in the case of the hotly debated Line Camp gravel pit in the Dolores River Valley, the board limited its hours of operation and required acceleration and deceleration lanes at the turnoff to the pit on the highway.

“It’s the planning commission and county commission’s job, where you can, to act as a mediator and an arbitrator between the proposed development and adjoining neighborhood,” Findley said. “You try to find ways to mitigate the adverse impacts. I think that’s our role rather than just looking for ways to say no.”

Some individual decisions the county has made under the LIZ system have been challenged in court, but the two recent lawsuits go a step further, challenging the system itself.

Conflicting uses

A complaint filed May 17 in District Court objects to the county’s decision to allow the expansion of an existing warehouse owned by Jay and Lea Stringer in the Mancos Valley. Another complaint filed June 15 in District Court against the county involves its approval of a high-impact permit for a gravel-crushing operation in the Lewis area.

The plaintiffs in both cases are represented by Goldman, Robbins and Rogers of Durango, the same law firm that represents La Plata County.

In both lawsuits, the plaintiffs charge “that the County’s Landowner-Initiated Zoning scheme is facially invalid because it provides for illegal spot zoning” and “does not establish a comprehensive or logical plan for land use and development of the unincorporated territory within the County.”

Spot zoning – zoning small islands within rather than broad areas – is prohibited by state law.

The Stringer warehouse is home of Farm Goods for Kids, an Internet business, as well as other similar businesses with different names. Last year, the county approved a high-impact permit for the Stringers to construct a 30,625-squarefoot warehouse for their operation.

Many neighbors objected, arguing that the area along Road G southwest of Mancos is mainly residential and agricultural. The land surrounding the Stringers’ 52-acre tract is all either unzoned or zoned AR 3, for Ag- Residential 3-acre tracts. The Stringers’ land is zoned AR 35.

In April, the Stringers withdrew a request to have 17 acres of their land rezoned as commercial/industrial after legal concerns were raised.

Jeff Corbin, one of numerous plaintiffs in the lawsuit against the Stringers and the county, said he and his wife bought their land 16 years ago and watched as the Stringers moved in, started a small machine shop (to which they did not object) and then expanded.

The county’s approval of the highimpact permit for a new warehouse is out of line with the quiet rural nature of the surrounding land, Corbin contends.

Although there are other businesses in the area, he said they are “basically residence-operated” and have only one or two outside employees, if that.

The Stringers’ expansion plan allows them to have up to 60 employees. Corbin said the county planning process didn’t seriously consider the neighbors’ objections. “Dealing with the commissioners has been extremely frustrating,” he said. “That’s why the lawsuit got filed. We just felt like our concerns were never heard.”

Corbin said the LIZ system is worthless without a master plan that would set out zones for the future. “I’ve heard the commissioners say they just need to tweak it a little bit, but for me, tweaking isn’t going to work unless they really set forth some limits that say what the different areas are.”

He also said he felt that the decision to approve the warehouse expansion had been made before the public hearing ever took place.

Findley, however, adamantly denies that. “We don’t just rubber-stamp these things,” he said. “I read the regulations. I don’t just say, ‘I feel like approving this one.’ You wouldn’t be successful very long doing that.”

Chuck McAfee, the plaintiff in the other lawsuit, which is against the county and Stone Crushing, likewise believes LIZ and the land-use code aren’t working. McAfee ran for county commissioner in 2002 on a platform that included reform of the land-use code, but lost to Findley. McAfee then served on the county planning commission but recently resigned.

“I believe that the land-use code is being improperly and inconsistently applied,” he said. “My situation is a case in point.”

On May 16, the county approved a high-impact permit for the Stone gravelcrushing operation on 232 acres on remote Road Z, about a half-mile from McAfee’s 2,300-acre tract. The surrounding properties are zoned AR-35 or AR-10 or are unzoned. The property in question, like Stringer’s, is zoned AR-35.

McAfee said the gravel operation is incompatible with the neighborhood. “It’s not associated with agriculture and it’s certainly not residential,” he said. Under LIZ, he noted, “If certain zoning patterns happened in an area, that was supposed to be recognized and honored.

“The gravel pit is an example of how adjoining landowners and the permittees can’t predict what’s going to happen to them.”

Losing the war?

But what will happen if the plaintiffs win their lawsuits and LIZ is thrown out? Would the county revert to being unzoned? Would all the decisions made under LIZ be invalid? No one seems to be sure. Plaintiffs attorney Jeffrey Robbins did not return a phone call from the Free Press.

“It means they won the battle and lost the war,” Findley said. “If the landuse regulations are no longer valid, we go back to 1998 when we had nothing. Landowners can go out and do what the heck they please. We go back to the Dark Ages.”

McAfee said he does not believe the entire land-use code would be thrown out even if the LIZ portion were successfully challenged.

“I suspect some zoning that has happened under LIZ would be invalid and that could have implications on permitting that has been allowed under the zoning,” he said.

“But if it is invalid, we need to know so we don’t keep on using it, and it seems to me our county government and administration will do nothing to examine this and fix it if without being compelled to do so.”

Deterring business?

Although LIZ’s effects on individual property owners are the basis of the lawsuits, some local leaders are concerned about a broader problem: They worry that LIZ is hampering economic development.

Cortez City Manager Hal Shepherd said the lack of a clearly defined industrial zone could deter some businesses from locating here. He said he has urged that some areas away from residential areas be “pre-zoned” as industrial.

“The problem is we have few industrial sites, so if we do get lucky and get somebody to come take a look at us and they know they’re going to have to go through a re-zoning situation, they’ll probably go somewhere else,” he said. “During the six months it takes to go through the zoning process and public hearing, they could be starting up someplace else.”

He said he would like to see at least a couple hundred acres zoned for light industry – “not smokestacks” – where a few businesses could locate. Having industries to create jobs is critical to the local economy, he said.

“You don’t create a sustainable economy by just having retirees and people on limited incomes. You need that money from salaries to change hands four or six times in the community if our retail is going to make it.”

The area already suffers from the absence of an interstate highway or major airport, Shepherd said, so an uncertain zoning system is just an additional obstacle to economic development.

The easy availability of domestic water fuels sprawling residential growth and further crowds out places where industry might locate, he said. Without zoning, Shepherd said, even when a business does starts up in a remote rural part of the county, it may soon find itself surrounded by homes as adjoining agricultural tracts are subdivided.

“Then you’ll have a conflict between the later-arriving residential users that don’t like the noise and trucks and traffic associated with the business.”

He said LIZ was probably a “great first step” for the county but that an overall plan is needed to guide growth.

“I don’t think there is any vision to tell how this county’s going to look in the next 20 to 40 years,” he said.

‘Make a statement’

Findley concedes that LIZ may not offer much predictability, but he said most county residents probably wouldn’t support a conventional zoning system. He pointed out that the 1994 ballot question never mentioned zoning.

“I think LIZ has accommodated the resolution and the wishes of the people,” he said.

But, he added, the system would work better if more people would designate a zone.

“If it’s unzoned, they have made no statement as to what their neighborhood is going to be or their own land, other than the current use,” Findley said. “If I could make one request of the citizens it would be to zone their land,” he said. “Take advantage of LIZ and make a statement as to what the future of your neighborhood will be.”