April 2007
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County works to deal with growth-related problems

By Gail Binkly

The development boom in Montezuma County is creating a few headaches for county officials. On the one hand, they have to deal with developers who follow the rules but whose subdivisions prove controversial for various reasons.

On the other, they have ongoing problems with people who don’t follow the rules but try to circumvent the county’s land-use code and regulations entirely.

How fast is Montezuma County growing?

According to the county planning department, 20 developments totaling 128 new lots are in the works, with 109 of those lots being 9 acres or smaller. However, two of those subdivisions received negative recommendations from the planning commission recently, so their future is uncertain.

In addition, four subdivisions totaling 15 new lots have been approved in 2007 so far, and three other subdivisions were amended this year to add 18 lots.

Reports of people attempting to create “subdivisions by mortgage” prompted County Administrator Ashton Harrison to send a letter March 19 to real-estate professionals in the area notifying them that the county takes a dim view of such actions.

“Recently, it has come to the attention of Montezuma County officials that some people believe that encumbering a portion of land with a deed of trust constitutes a legal subdivision without having to comply with Montezuma County subdivision regulations and state subdivision law,” states the letter, which was sent with the blessing of the county commissioners.

“It is the position of Montezuma County that the only time a parcel can be legally split without approval of the Board of County Commissioners per the Montezuma County Land Use Code is by foreclosure or court order.

“Montezuma County will vigorously pursue civil and/or criminal action against any party or parties and associated party or parties who attempt to split parcels without going through the established subdivision process with the exception of parcel splits resulting from foreclosure or court order.”

Harrison said the county planning department had encountered instances of people obtaining mortgages on tracts of land before the tracts were officially split via the county’s planning process.

“People were saying they didn’t have to go through the subdivision process if they mortgaged off the property,” Harrison said. “Say they had 40 acres. They’d think, ‘I can build a house and sell off the house and five acres’.

“We don’t believe that’s true. We believe the only time you can split a parcel off without going through the whole process is by foreclosure or court order, or if the parcel is over 35 acres in size.”

Not a loophole

State statutes define what constitutes a subdivision (subject to county regulation), and they do allow for land splits by court order, for instance in the case of a divorce settlement. There is also an exemption for a subdivision “which is created by a lien, mortgage, deed of trust, or any other security instrument.” That language has led some people to assume they could get a mortgage on a piece of land first, then come to the county for after-the-fact approval.

Harrison said the county clearly does not believe that is the case.

“Why would the state require counties to have a subdivision law if that were true?” Harrison asked. “That’s not a loophole, it’s an entire bypass.”

The county commissioners were concerned about illegal land splits as far back as the mid-1990s. On Aug. 14, 1995, they passed a measure saying that anyone with property subdivided after June 14, 1994, had 90 days to come to the commissioners to have the problem cleared up. Following that time, after-the-fact exemptions were not to be granted.

Different boards have given after-thefact exemptions to a few landowners since then in extraordinary circumstances, but the policy remains to not do so when someone has ignored the rules.

“We’ve been diligent in making people abide by the process,” Harrison said. He said the assessor’s office notifies the planning department of unapproved parcels when it becomes aware of them.

Neighbors also sometimes report problems. At their March 19 meeting, the county commissioners heard from Planning Director Susan Carver that the planning office had been informed of one landowner within a subdivision who told the neighbors, “We’re going to develop my land by way of mortgage.”

The planning office had no application for a land split, she said. Harrison said he’d heard of similar occurrences within the town of Mancos and city of Cortez, in which people tried to obtain a mortgage on a tract before it was officially split off, then assumed they could use that to gain approval for the division. He said the county is trying to make sure banks, real-estate companies and landowners are aware that land divisions involving tracts of under 35 acres require county approval.

“We’re trying to pre-empt it so people don’t get themselves in a serious bind,” Harrison said.

Assessor Mark Vanderpool, who was at the meeting, said he had contacted officials with the state Division of Property Taxation and they agreed with the county’s opinion that “a partially encumbered parcel does not constitute a split.”

“I’m thrilled you allowed Ashton to send a letter to real-estate professionals,” Vanderpool said.

Enforcing the rules

Another problem involving county regulations came up at the March 19 commission meeting: that of people who try to flout the rules involving commercial or industrial activities.

Carver said she had had complaints about two separate incidences of people operating unpermitted automotive repair or detailing businesses. In one case, the landowner had built an enormous building with large bays on his property; in another, the owner was storing and working on numerous vehicles. In neither case had the owner sought a high-impact permit. Harrison raised the question of whether the county needed a codeenforcement officer to check on such matters.

“As it is, the commissioners have to pass a resolution for an enforcement action against someone,” he said. “We’re comfortable with the status quo, but you’re going to be seeing more of this as more subdivisions are coming in.

“As we’re becoming more of an urban county, you’re going to see more and more of these situations. With more people living closer together, there’s going to be more complaints and more demands for county government to at least investigate alleged violations of the land-use code.”

Commission attorney Bob Slough said the commissioners have the power to enforce land-use regulations the same way they did in the instance of the Rally in the Rockies last summer. In that case, the motorcycle rally’s promoters were denied a high-impact permit from the county, but decided to have the rally anyway.

The county then went to court and obtained an injunction shutting the rally down.

When the county hears about anyone operating a high-impact business without a permit, Slough said, the commissioners can use the same process. First, they would set a public hearing to hear input on the situation and decide if the activity does indeed require a permit. Then, if the landowner persists in pursuing his activity without a permit, the county can seek an injuction to stop the illegal actions.

If a code-enforcement officer were appointed, on the other hand, he or she would have the ability to write citations to offenders that would be processed in county court.

‘Zoning by Band-Aid’

Vanderpool urged the commissioners to consider appointing such an officer.

“I think the most important thing government should do is treat everybody the same,” Vanderpool said. “What we have now is zoning by Band-Aid.” He said enforcement is completely dependent on people complaining.

“I believe the board should seriously consider appointing a compliance officer so you three individuals are not bothered by each and every case,” he told the commissioners.

However, Slough said previous boards had weighed their options and decided that in most cases people would ultimately come to the commissioners anyway.

“The board gets drawn in on almost everything,” he said. “You’re still probably going to end up spending more time listening to complaints about [the code-enforcement officer’s actions] than you would by dealing with it yourselves. I think they [previous boards] felt like it was simpler to do it themselves. I think that’s what it boiled down to.”

Slough emphasized, however, that the board had the right to appoint a code officer. Harrison suggested the position could be funded by fees.

The commissioners decided for the time being not to appoint an officer. Harrison said the planning department gives people the benefit of the doubt when it comes to complaints about unpermitted activities, and that often a strongly worded letter or two might do the trick in bringing the offender in to the planning office.

But even individuals who followed the rules have wound up creating controversy recently.

No to 51 lots

For the second month in a row, the county planning commission in March issued a “no” recommendation on a proposal for a large, high-density subdivision.

In February the planning commission rejected a zoning request for a 44- lot development on 160 acres on Granath Mesa near Dolores, where the only water source would have been cisterns.

On March 22, the planning board voted 3-2 against a zoning request by developer Don Etnier that would have given the green light to a 51-lot development on 199 acres on Road L in the Totten Lake area.

In both cases, developers may still appeal the planning board’s recommendation to the county commissioners Although only a handful of neighbors spoke against Etnier’s proposal, the planning board had concerns about infrastructure, especially water.

Etnier, acting as agent for landowners Larry and Donna Suckla, told the board the property was well-suited to such a development, with BLM land bordering much of it on the east. The property lies just 2 to 3 miles from Highway 160, he said, and Road L to the site is paved.

He said there is plenty of water available, but the pipeline servicing the area is inadequate at the moment. “It’s true, there is no water now because it’s a 2-inch water main in there,” Etnier said. “You have to go back and upgrade the line to a 4-inch line.”

However, he said Mike Bauer, manager of Montezuma Water Company, had told him supplying 51 water taps was “not a problem.” Etnier said plans were for an underground pipe system to carry water to each lot.

Bauer, however, had not provided a letter to the county guaranteeing that water was available.

Several neighbors voiced concerns about the proposal.

Larry Hartzke of Road L said he moved there in 2004 from Wisconsin “because we liked the amenities the county offers. We value peace and quiet, and we chose the Simon Valley for its quiet and the dark skies at night. The proposed subdivision in our opinion would seriously degrade many of the quality-of-life attributes for which we moved here.”

He also cited a preliminary engineering evaluation done on behalf of the county that said considerable work would have to be done to both Road L and Road 29, including work to culverts and drainages along both roads, to accommodate the subdivision.

Chris Foran, also a resident of Road L, expressed concerns about traffic the development would generate and the safety of the narrow rural roads.

Ray Lunnon of Road L said, “Our place is currently up for sale, upon finding out about this development.” He added that there are problems with drainage off the largely flat area. “Last year during a heavy rain a significant amount of water came through our place, so I do think some drainage issues need to be addressed,” Lunnon said.

Planning-board member Cindy Dvergsten said she had numerous issues with the plan. “I’m concerned we don’t have proof of water at this point in time,” she said. “It’s hard to approve a zoning of this nature without that.”

She also said she was troubled by the potential hazards of so many septic systems in that soil and in a wet area, about drainage, and about whether some of the property might be wetlands.

“The U.S. Army Corps of Engineers generally doesn’t consider artificially irrigated wetlands to be wetlands,” Etnier said.

“But that determination has not been made on this property,” Dvergsten responded.

She added that a detailed traffic study usually was required for a development of such magnitude.

Board member Jon Callender commented that the Cortez Fire Protection District said it cannot service the entire subdivision as it develops and that additional water supplies would be needed later. The proposal involves three phases, but Etnier was seeking approval for all three at once.

Etnier said there are three ponds on the property with water for firefighting.

It was also noted that there is an electrical transmission line on the tract requiring a 125- foot easement, and that because of it, hills and an irrigation canal, some of the lots would have very little space on which a home could be built.

Board member Andy Logan argued for the proposal, saying there was an easement for the power line “and that’s all we have to worry about” regarding that. He said one nearby parcel of 80 acres was already zoned for small lots and the property in question is unzoned.

However, Dvergsten said the 80-acre parcel has only a zoning preference and that small-lot zoning has never been officially approved there.

And unzoned property, under Montezuma County’s rules, is zoned by default into its current land use — not actually unzoned.

Callender said he had concerns about whether the area was “inadequate to support this level of development.” “I would like to know whether this is the best plan for the use of this land. Is this the appropriate place for three-acre zoning or are there alternatives that would fit the area better?”

The board ultimately voted 3-2 to reject the plan, with the dissenting votes coming from Logan and Guy Drew.


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