July 2006

Growth boom prompts heated debates

By Gail Binkly

Times are changing.

GROWTH BOOMTen years ago, if Montezuma County had been having a public hearing on anything to do with a land-use code, the room would have been filled with private-property-rights advocates vocally opposed to more regulations. But when such a hearing was held on the evening of June 20, the people filling the chairs were a different crowd — one overwhelmingly in favor of stricter rules and more protection against unwanted development.

As a development boom brings new people to the Four Corners area — many accustomed to stricter zoning as well as greater formality in their public meetings than has been traditional here — both newcomers and some long-time area residents have stepped up the pressure on the Montezuma County commissioners to manage growth more stringently. The board is increasingly squeezed between conflicting views of county land-use policies, with some citizens demanding an over-arching zoning plan and others preferring the more laissez-faire approach that exists.

It may also have been a sign of changing times when Commissioner Larrie Rule, at the land-use hearing, attempted the sort of banter that was fairly common at meetings in days gone by and was bluntly told he was rude.

“I’m not sitting here asleep,” he was saying after being asked if he and Commissioner Gerald Koppenhafer would express their views. “Of course, I may have fallen asleep yesterday when Kerry O’Brien (a Mancos-area citizen) was talking.”

At that point, a woman in the audience rose and cried, “You are rude!” before walking out — despite Rule’s and O’Brien’s protestations that it had all been a good-natured jest.

Burden of proof

In recent weeks the commissioners have been grappling with a variety of issues related to land use. Two of the stickiest are a planned high-density development on Lebanon Road and some new language proposed for the county land-use code.

The latter is not the sort of issue that normally gets people excited, but one change in particular proved so contentious that the commissioners had to continue a public hearing on the matter from June 12 to June 20. The change would amend Part 1202 of the code to say, “Any person alleging a significant adverse impact to the health, safety or welfare of the citizens of the County, a significant reduction in neighboring property values, or other unfavorable or harmful consequences, must prove said adverse impact by clear and convincing evidence.”

Alarmed by the vision of ordinary citizens having to hire lawyers and engineers merely to speak out against a proposed development, more than 30 people came to the evening meeting, most to protest the wording.

“We get a lot of input,” Koppenhafer explained of the proposed change. “You can allegate whatever you want to say. We need some evidence to make a decision.”

Commission Chair Dewayne Findley agreed.

“What we’re trying to do in my mind is to level the playing field where both sides [the developer and those opposing the development] have to present evidence.”

But citizens took issue with the idea of their having to “prove” a harmful impact “by clear and convincing evidence.”

“Why isn’t the burden on the applicant?” asked Judy Scheunemeyer of Cortez. “Usually when someone wants a change, the burden of proof is on them.”

O’Brien commented that it’s difficult to prove an adverse impact before it happens. He also questioned whether applicants for subdivisions or high-impact permits are normally made to produce much evidence on their part, a sentiment echoed by others. “My experience in this county is the applicants check the boxes and they aren’t required to bear the same burden of proof,” O’Brien said.

Alfred Hughes of Mancos agreed that a “very low threshold of evidence” seems to apply to those seeking high-impact permits.

Laird Carlson of Mancos referred to public hearings the previous day on the proposed Rally in the Rockies motorcycle rally and concerts at Echo Basin Dude Ranch. “On at least one threshold standard the applicants did not give clear and convincing evidence — sound,” he said. “I can’t prove that it’s going to impact Kerry O’Brien’s house at 70 decibels, because it hasn’t happened.”

However, the motorcycle rally’s promoters likewise haven’t shown that their event and concerts will be under 70 decibels (the standard in the landuse code), Carlson noted.

“I would be glad to bring in a sound engineer if [rally promoter Dan] Bradshaw had to prove something too,” Carlson said. “Until you start asking them to be on that level playing ground, you can’t start to ask us.”

Gravel pits and pig farms

Citizens also wondered how they could prove that a nearby development such as a gravel pit would lower their property values. Findley suggested if such a thing occurred, they could have a Realtor write a letter saying their values had been reduced, to which many in the audience responded, “By then it’s too late!”

Joe Milarch of Mancos also argued that values are not always monetary. Speaking to Koppenhafer, he asked, “Will [your [home’s value] fall if I put a pig farm next to you? Maybe not in money, but will it fall?”

“No,” replied Koppenhafer. “It won’t fall to me, because I like my house. I’m going to stay right there.”

Koppenhafer, a staunch advocate of private property rights, served on the 12-member citizens’ working group that created the county’s zoning system, which was adopted as part of the land-use code in July 1998. The unique system — called LIZ, for Landowner- Initiated Zoning — allows landowners to choose their own zoning, subject to some limitations and county approval.

When LIZ was proposed by the working group, the idea of having any zoning in Montezuma County was vocally opposed by a sizable contingent, although 56 percent of county voters had said yes to a non-binding resolution in 1994 asking for a land-use plan. Many on both sides of the issue believed that LIZ was not a real zoning system at all, just a means of throwing a bone to those wanting a plan.

However, the county worked to pre- pare a thorough, codified system based on LIZ that included public hearings for major subdivisions. A separate permitting process governs highimpact industrial or commercial developments. Periodically, LIZ and the land-use plan have been amended with little controversy, but the most recent proposed amendments caused a furor.

Commission attorney Bob Slough suggested the language regarding proof could be changed to say complainants have to show a “preponderance of evidence” or something less onerous than “clear and convincing evidence,” an idea the commissioners said they will consider. They decided to continue the hearing once again, to 3 p.m. Monday, July 10, in the courthouse, before rendering their decision.

Counting intangibles

The hearing often veered into broader questions about growth and the county’s ability to handle it under current regulations.

“Do we have a vision?” asked Penny Welch of McElmo Canyon, to which Findley replied: “We do have a vision. The problem is it’s not a common vision.”

M.B. McAfee of Lewis said it was “time to step forward and see if the code isn’t a bit off.”

“Will these amendments fix it?” she asked. “Maybe we need a moratorium on some kinds of development” until the code can be examined, she suggested.

Findley answered, “It’s not the code that’s the problem, M.B. It’s growth.”

Growth is occurring at a rapid pace in rural Montezuma County. So far in 2006, there are 132 new subdivided lots in the works, according to Planning Director Karen Welch.

Angi Sauk, who lives on Lebanon Road near the proposed high-density subdivision, asked how many people would have to present evidence before the county would turn down or modify a proposal. “What about the intangibles, like light pollution and noise pollution? How can you quantify that with numbers?” she asked. “The only thing I have heard in the last four meetings is the rights of private owners for being developed.”

Findley suggested that if people want protection from conflicting land uses they should make sure they’ve chosen a zone for their own parcels. He also advised residents to take the initiative to develop plans for specific areas, similar to the Dolores River Valley plan that limits growth along the river.

But Hughes responded, “What difference does it make when you can have something zoned Agricultural/ Residential and you can have any use at all on it?” Most applicants can obtain a high-impact permit for nearly any type of activity on larger ag parcels.

And Milarch said, “I want my county to be done right — not just the Mancos Valley, not just Dolores.”

Following the code?

Questions linger as to how the landuse code should be interpreted, whether it is adequate to handle the accelerating growth, and whether the county is even following the code in all cases.

LIZ’s legality was challenged by Chuck McAfee, M.B.’s husband, in June 2005 after a gravel pit was approved near his Lewis home. McAfee’s suit charged LIZ was invalid because it “provides for illegal spot zoning” and “does not establish a comprehensive or logical plan for land use and development.” [See Free Press, July 2005.] McAfee’s suit failed, but District Judge Sharon Hansen did rule that the county had not followed the land-use code in approving the gravelpit permit and had to go through the process again.

During a packed public hearing on June 12, opponents of Lebanon Estates, which would consist of 19 lots on 65 acres on a former hayfield at 13800 Road 25, charged that the subdivision had not followed all the steps outlined in the land-use code. Zoning of AR 3-9 (Agricultural/ Residential lots of 3 to 9 acres) for the site was approved by the county commissioners after a contentious public hearing on May 22. However, under the land-use code, several other stages remained for the development to receive final approval.

On May 25, the county planning commission could not agree whether to recommend approval or denial of what was called the “development plan” for Lebanon Estates and in the end provided no recommendation to the county commissioners.

That led to confusion June 12, as the commissioners struggled to understand their options and attorney Slough repeatedly asked for clarification as to what, exactly, the county was voting on. Mike Preston, a Lebanon Road resident as well as the county’s federal lands coordinator, said the confusion stemmed from the fact that the planning group was uncertain what step of the process it was in.

Under the land-use code, after a developer has obtained the appropriate zoning for a major-impact subdivision, he is supposed to submit a rough “presketch plan” to the county planning department for review. After the department gives an OK, the developer submits a sketch plan that goes to the planning commission, which holds a public hearing on it.

“The purpose of a public hearing at the sketch-plan phase is to involve the public early on, to help shape the proposal,” Preston told the commissioners.

Then the proposal — adjusted if necessary — is submitted as a “preliminary plan” for further review by the planning department, planning commission and various state and other agencies. If it passes muster, it is submitted in the form of a final plat to the county commissioners. Preston said the planning commission was told it could not address lot density or layout in its decision May 25, but no sketch-plan public hearing had ever taken place to allow the public to shape the proposal.

“The neighborhood came forth with specific concerns about adverse impacts and pointed to some mitigations,” but not a single thing was changed in the proposal, despite a petition of opposition with 270 signatures, Preston said. “The developers have been trying to fast-track this through the system.”

Planning director Welch said over the years the county had combined the public hearings for zoning and the sketch plan into one step and had likewise done so for Lebanon Estates. However, county officials recently decided to return to the full process mandated by the land-use code.

“We followed this the way we did other developments in the past,” she said. “They have met the criteria as required per the land-use code.”

‘Lust for dollars’

A number of citizens expressed specific concerns about the proposed development, in particular about the traffic it will bring to Lebanon Road (Road 25), a typically narrow county road with no shoulders.

Preston said State Patrol records show there were 14 accidents and 12 injuries on the road in 2005, and asked for a professional traffic study.

Developers Jim Candelaria and Dean Matthews disputed the need for the study, saying they had already presented one. However, that was a simple traffic count done by the county road department in 2002.

Carolyn Mathes, who lives just off 25 on Road M, said she’s had to “head for the ditch several times” because of dangerous drivers and was rear-ended while turning left with her signal on. “Don’t just have a public hearing and let us talk on and on, and then go ahead and approve it as if we never said anything,” she pleaded.

Much of the hearing turned into an impassioned debate over growth in general as well as Lebanon Estates in particular. Residents spoke eloquently about the negative impacts of high-density subdivisions and — on the other side — the need for affordable homes.

“We cannot let the developers and their lust for dollars destroy our farm zone or our quality of life,” said county resident Carol Miller.

“We’re losing the very thing that attracts people here,” said Mel Houx of Highway 184, adding that five new houses are being built across from him. “They want me to give up my view so they can have one.”

Many residents asked that Lebanon Estates’ lot sizes be increased to reduce the number of homes, pointing out that AR 3-9 zoning means lots could be as large as 9 acres. They argued that high-density lots don’t fit the neighborhood. But the developers said larger lots would be more expensive, and some citizens agreed.

“I can’t afford these lots if they’re 10 acres,” said Brian Balfour, who said he and his family want to move to Lebanon Estates. “Everybody that wants to buy a lot there right now is from this county,” he added.

‘A free-for-all’

Rick Corbitt of Road P said he had grown up in the county, moved away to work, and saved money to buy land and retire here, which he did. “I wanted to get away from light and noise pollution,” he said. “Then Mildred Estates happened.”

Mildred Estates is a development of 45 homes on 3-acre lots at Mildred Road and P. Corbitt said the development’s effect on the rural neighborhood was dramatic.

“As far as I can tell, each of those owners believes they are on a remote island and nothing they or their pets do affects anyone else,” Corbitt said. “I sit on my porch and all I can hear are barking dogs, lawn-mowers, Weed-Eaters and traffic. I don’t know whether to cry or throw up or both, but I know one thing: You will diminish the qualify of life for a lot of people.”

He said subdivision covenants are meaningless because there is no one to enforce them and “everyone wants their porch lights and their cats running loose and their three to four barking dogs running loose.” He noted the county has no leash law and said it is “like a free-for-all.”

The commissioners discussed sending the subdivision back to the planning commission, which had been struggling through a 21-item agenda when it failed to make a recommendation. Koppenhafer said the development had met all the required regulations and appeared ready to approve it, but Findley said granting approval at that stage would be tantamount to granting final approval.

Preston insisted the neighbors’ ideas for mitigation measures had never received a full airing.

In the end the commissioners — pressed for time because a farewell party for former Administrator Tom Weaver had been scheduled in the room after the hearing — voted to continue the hearing to Monday, July 24, at 2:30 p.m.

They also required the developers to pay for a professional traffic study of Lebanon Road and have that information for the hearing.

Matthews was one of those who came to the June 20 public hearing on the land-use code. He asked for stricter regulations so that he could have more certainty for his plans.

“As a developer, I agree with M.B. [McAfee],” he said. “It would be easier if we had zoning.”