January 2008

A high-density subdivision high on a mesa gets a 'no' vote

For the second time, the planning commission rejects a Granath Mesa proposal

By Gail Binkly

For the second time, the Montezuma County Planning Commission has said no to a proposed major-impact subdivision on Granath Mesa about 2 miles above Dolores, Colo.

On Dec. 20, the planning group voted unanimously to recommend denial of Summerhaven Subdivision, which would consist of 36 lots on 160 acres at roads 31 and W.

Back in February 2007, the planning commission had said no to a very similar proposal by the same developers for a subdivision of 44 lots on the same property. That time, the vote was 5-1.

“Last time, you wanted 44 lots,” said commission member Drew Gordanier. “We asked for larger lots. They kind of did that, but not exactly. I would still like to see more, larger lots.”

DEVELOPERS WOULD LIKE TO SEE A HIGH-DENSITY SUBDIVISION ON THIS 160-ACRE PARCEL ALONG ROAD W ON GRANATH MESAThe original 44-lot proposal had also been turned down — somewhat reluctantly — by the Montezuma County Commission in June after developers appealed to that board. (The planning commission can only make recommendations, not final decisions.)

Technically, the developers weren’t seeking approval for the subdivision itself, but for the zoning necessary for such a development. They were asking for AR 3-9 zoning, which means agricultural/ residential uses with lots of 3 to 9 acres in size.

Brothers Tim and Peter Singleton, real-estate agents representing Summerhaven (the property is owned by their father and brother), have repeatedly argued that a high-density subdivision on Granath Mesa would provide much-needed affordable land with easy access to the national forest.

Their original proposal had an average lot size of 3.6 acres, while the revised plan upped that to an average of 4.4 acres. Three acres is the county’s minimum lot size.

The second time around, they also eliminated guest houses, which were allowed under the original proposal. Neighbors had argued that such houses would effectively double the density of the subdivision.

Scarcity of water and the danger of wildfire were major concerns with the original proposal. The subdivision has no domestic water supply and originally would have relied on cisterns and a well or two for water.

This time, the developers proposed allowing each homeowner to drill a well. After some discussions, the state engineer’s office with the Colorado Division of Water Resources approved the plan for more wells, sending a letter dated Dec. 6, 2007, stating, “it is the opinion of this office that the proposed water supply is adequate and would not injure decreed water rights.”

However, the same letter, by water resource engineer Heidi Frey, also noted that an existing well drilled on the property “is permitted to provide water for not more than 3 single-family dwellings. . .” and that the state would have to considered “the cumulative effect of all wells which would be located in a subdivision. . . in determining injury to decreed water rights.”

According to the developers, there are two aquifers on Granath Mesa, one around 300 feet and a deeper one at 1,100 feet.

In addition, homeowners could still use cisterns, and the town of Dolores has stated it has adequate water at its water dock to supply those.

Attorney Kelly McCabe, representing the developers, told the planning commission he believes the water issue has been addressed satisfactorily.

“A single well has been drilled there, a very successful well,” he said. “None of us can tell what would happen upon additional wells being drilled,” but he said the engineer who drilled the well believes there would likely be plenty of water for future users.

Drawing down

However, planning-commission member Andy Logan noted that, so far, there is just “one well that’s been tested for a short period of time.”

“There’s other houses that have wells up there now. We need to make sure we don’t impact them,” Logan said. He said an aquifer draw-down test needed to be conducted.

McCabe argued that concern about other water users is why the state requires augmentation through the Dolores Water Conservancy District. “The premise is that the groundwater is from the Dolores River,” McCabe said. “So the state requires these people as they drill wells to go out and replace the water.”

Not all the Dolores River water coming into McPhee Reservoir has been allocated, so the district is able to sell to individual users as needed. If the users are above McPhee, they buy augmentation water just as someone in the Montezuma Valley would buy water.

The state engineer’s office has to issue a permit for each well and ascertain what the individual’s need is. Then the person enters into an agreement with the DWCD, which requires a minimum purchase of one acre-foot per year.

However, that arrangement doesn’t address the potential impact to other homeowners on Granath Mesa who have existing wells, the planning commission noted.

“The Dolores River is not recharging a reservoir [aquifer] in the Dakota Formation, which is the 150-foot reservoir,” said commission member Jon Callender. “It’s recharged by rainfall. There’s capacity there, but those types of aquifer clearly need to be aquifertested.

“If every landowner were to drill to 1,000 feet then I have no doubt the recharge into the Dolores River is relevant. I’m unclear what wells we’re discussing.”

Peter Singleton said the 1,100-foot aquifer is the primary aquifer, while the shallower one is “hit-or-miss.” He said there is little drawing-down of aquifers in the county at present.

McCabe said the “legal requirements” had been complied with.

But Tim Hunter, an alternate on the planning commission, said the state engineer’s letter did not completely address the situation. “If there’s a draw-down effect on the neighbors, they’re going to stop allowing wells,” Hunter said. He also said having to drill down to 1,100 feet hardly made the lots affordable.

McCabe said each new well application will have to be addressed on its own merits and that the issue was beyond the purview of the planning commission that night. “This is just zoning,” he argued. “This is not the time to consider the whole subdivision. Our obligation today is to comply with state law and we think we’ve done that.”

However, attorney Jon Kelly, representing three other landowners on Granath Mesa, disagreed. “The question is whether this application is in compliance with the Montezuma County Land Use Code,” not just state law, he said.

“What Mr. McCabe is trying to do is state that the burden of proof is on the neighbors to show they will not be injured by the proposed subdivision. . . . Quite frankly, we have a lot of smoke and mirrors here in regard to the adequacy of the water,” Kelly said.

David Doran, who owns 92 acres on Road W, also took issue with the welldrilling idea. “I question whether a well on Granath Mesa as a primary source can be trusted,” he said.

Dennis Miller of Mancos, who said he is buying property on Granath Mesa and is a water resource engineer, called the augmentation plan “not realistic” in addressing concerns of existing landowners on the mesa.

“The augmentation plan is designed to replace water that might be lost downstream for senior water rights,” Miller said.

Kathleen Butler of Road 31, who has lived on the mesa all her life and has two wells, agreed. “I really would resent having this subdivision draw down the water in my wells,” she said.

Lack of water for firefighting was a special concern of the county commissioners when they rejected the original, 44-lot plan. Several Granath Mesa residents spoke on Dec. 20 to say they were still concerned with fire danger related to the subdivision.

John Cowell of Road W said he assumed that, in the event of a fire on the mesa, firefighters would concentrate their efforts where the most people and property were. “If this means in the event of a serious fire the rest of the mesa goes unprotected. . . we should pursue any legal compensatory recourse available,” he said.

Christia Cushman of Road V.6 compared the situation to the wildfires that raged across southern California last fall. “I don’t think anyone could fail to see the parallels to the situation here,” she said. Although the vegetation is different, the land is similarly dry and winds can be high, she said.

However, McCabe countered that the presence of the subdivision would actually increase fire safety. Strict firemitigation and control of brush will be required in the covenants, he said, and a 10,000-gallon water tank will be installed on the property and would be available to fight any fire on the mesa.

But the biggest issue raised by many of the neighbors who spoke against the proposal was that of compatibility.

The future of large parcels

Most parcels on the mesa are large, and although there are some residents who have expressed a preference for AR 3-9 zoning, none have had it granted yet by the county.

“It’s certainly not within the character of the mesa up there now,” Miller said.

“If this passes it will set a precedent for the mesa,” said Doran.

Attorney Kelly also argued that the proposal is incompatible with surrounding uses. “This is a unique area, a rural area with large tracts,” he said.

John Granados of Road W said 3-9- acre home sites were not suitable for the area. Currently there are 56 dwellings on the mesa, he said, and the proposal would nearly double that number.

“The county needs to consider the future of large parcels,” he said. “The rezoning of any large parcel of land to AR 3-9 may cause irreversible impacts to the county taxpayers and the environment.”

“I think the heart of the issue is not the resource issues but the compatibility issues,” agreed board member Callender.

Peter Singleton, however, said that AR 3-9 zoning is “about the only thing left for the locals of this county” and that requiring the lots to be 10 acres or larger “would be removing the working class from the area.”

“Making smaller parcels from bigger parcels – that’s the nature of development,” McCabe agreed. He also said that if the county approved this proposal it didn’t necessarily mean it had to approve more high-density proposals on the mesa. “If you approve one subdivision that doesn’t mean you have to approve somebody else,” he said.

Commission member Casey McClellan said, however, “It would be hard to deny it if it’s right next door. On what grounds?

“I think each application is unique, but each neighborhood is unique and this is a neighborhood that has lowdensity development.”

Fellow member Guy Drew concurred. “I just don’t see that this is a place for 3-acre or 4- or 5-acre lots,” he said.

Under fire

The proposal will likely go to the county commission again to see if that board feels different about it. The current commissioners are strong supporters of private property rights but also have expressed concern about the cost to taxpayers of supporting large subdivisions in remote areas.

Granath Mesa is not far from Dolores and the road to the development is paved, but access is via Dunlap Hill, a steep and narrow route that is icy in winter. The commissioners had worried about how emergency vehicles would reach the homes during cold weather and how swiftly people could evacuate during a wildfire.

Whether these concerns have been adequately addressed in the new proposal the board will have to decide.

So far, the commissioners have been loath to turn down development proposals solely on the basis of incompatibility with neighbors, although the county’s land-use scheme, Landowner- Initiated Zoning, allows them to do so.

LIZ has come under fire from area residents who prefer a more traditional zoning system, and recently it was dealt a blow in the courts as well.

In November 2007, the Colorado Court of Appeals struck down the county commissioners’ approval of a warehouse expansion near Mancos.

That decision reversed one by District Court Judge Sharon Hansen, who had upheld the county’s approval for the high-impact permit in 2004.

Jay and Lea Stringers, owners of an Internet sales operation, had proposed building a 30,000-square-foot addition to an existing warehouse on land zoned for agriculture, but neighbors had objected on the basis of traffic and incompatibility.

The Court of Appeals said the commission had “exceeded its jurisdiction and abused its discretion in approving the expansion of a nonagricultural, commercial enterprise in an area zoned for agricultural and residential use.”

The high-impact-permit process for commercial enterprises is separate from the process for residential subdivisions, but the latter has also come under its share of criticism.


Foes of LIZ, the unconventional zoning system under which residents choose their own zoning subject to county approval, have said it has led to high-density developments being scattered around the county without regard to compatibility.

Its supporters maintain, however, that it’s a flexible system that fits with the sentiments of the populace.

The process for getting subdivisions approved has also been criticized because it is somewhat non-traditional.

Under the Montezuma County landuse process, developers first obtain approval for the zoning and a “presketch” plan for their proposal, then come back for approval of the actual site plan. This allows for a public hearing early in the process, so citizens can express concerns about the proposal, giving developers time to alter lot sizes, roads or other features.

In the past, however, this process was sometimes compressed, leading to confusion over what the planning commission was actually voting on and what powers it had.

Also, developers wanting high-density subdivisions frequently argued at the first hearing that they were only asking for zoning approval and their lots might not actually turn out to be as small as shown on the pre-sketch plan. Then, when their AR 3-9 zoning earned an OK, they contended that their specific proposal, with 3-acre lots, couldn’t be rejected because they already had the zoning established.

That confusion was exemplified in 2006 during discussions over Lebanon Estates, a controversial 19-lot subdivision on 65 acres on Road 25 (Lebanon Road). Developers argued it would provide affordable lots for locals; neighbors objected strenuously, saying it didn’t fit the rural area.

On May 25 of that year, the county planning commission could not agree on what was termed the “development plan” for Lebanon Estates and ultimately provided no recommendation at all to the county commissioners.

Neighbors said they had had no chance to tell the planning commission their concerns about density and other factors. County planning staff admitted the process had been somewhat streamlined, but the commissioners ultimately approved Lebanon Estates.

‘Not pleasant’

Neighbors’ distaste for a subdivision is rarely enough to sink it, as was shown with Lebanon Estates.

On March 22, the county planning commission voted 3-2 against recommending approval for a zoning request by developer Don Etnier for a proposed 51-lot subdivision on 199 acres on Road L in the Totten Lake area. Several neighbors voiced concerns about traffic on the narrow Road L, changes to quality of life, and so many septic systems in a wet area.

However, unlike Summerhaven, the property lies just a couple of miles from U.S. Highway 160, and domestic water will be available.

The county commissioners have granted preliminary approval to the first phase of Etnier’s proposal, which would consist of 19 lots on 63 acres.

In 2006, some of the largest subdivisions approved by the county included Mesa Sky, 14 lots on 49 acres, Piñon Hills, 47 lots on 291 acres; and Red Tail Meadows, 12 lots on 120 acres off Highway 184 near Narraguinnep Reservoir.

In 2007, other large subdivisions that were approved included Juniper Lane (Polston), 15 lots on 74 acres; and Cottonwood Ranch, 10 lots on 120 acres. Also in the works is a 22-lot development by Sisters Two Hofsan on 155 acres on Road H south of Cortez.

Tim Singleton told the planning commission that such subdivisions could prove less compatible than Summerhaven. “I feel there are subdivisions that have been passed in other areas that created more impacts than ours would,” he said.

He mentioned Cedar Mesa, a huge subdivision across from the entrance to Mesa Verde National Park, and the 47- lot Mildred Estates a few miles north of Cortez.

Peter Singleton said the county’s subdivision process is not too lenient but rather too stringent.

“If anyone else wants to split, they can come to me and I’ll tell them what the process was really like. It’s not pleasant,” he said grimly.