March 2008

The complexities of land use in Montezuma County

By Gail Binkly

Land use continues to be a thorny problem in Montezuma County.

Recent meetings of the county commission have included a business owner scolding the county for what he perceived as its flawed zoning scheme and a three-lot, minor subdivision being protested on the basis of inadequate water.

On Feb. 11, the commissioners got an earful from Jay Stringer, owner of a warehouse and Internet business on County Road G southwest of Mancos. In November 2007 the Colorado Court of Appeals, reversing a lower-court decision, found that the county commissioners had erred in granting Stringer a high-impact permit to build a 30,000-square-foot expansion onto his warehouse.

Stringer, who started out in 1992 with a machine shop in the same location, said he had come to the county planning department after the land-use code was adopted in 1998 and asked for his 52-acre tract to be zoned commercial. Instead, he said, he was advised to select AR 35-plus zoning under the county’s system, known as Landowner-Initiated Zoning (LIZ).

AR 35-plus is for agricultural-residential lots of 35 acres or larger. Under that zoning, a wide variety of uses are permitted, including some commercial uses, but a high-impact permit has to be obtained for operations that exceed certain standards for traffic, noise or other factors.

Although Stringer got the permit from the county, neighbors filed suit challenging the decision, saying the warehouse expansion was a non-conforming usse in the quiet, rural neighborhood.

The Colorado Court of Appeals eventually found that, although Stringer had had a commercial business on the property before the landuse code was adopted, “the right to continue the use does not include the right to enlarge the use.”

On Feb. 11, Stringer came before the commissioners to lambast the county for advising him not to seek commercial zoning.

“I did AR 35- plus and everything the board of county commissioners told me to do,” he said. “I did it to the letter and in good faith. I built two buildings totaling $2 million.”

His operation was commercial from the beginning, he said, and it was a mistake for the county to let him have AR 35-plus zoning. He believed, based on what the planning department had told him, that he could grow his business under that zoning, but “my opponents understood it better than I did,” he said.

“My question is, what protection do I have?” Stringer asked. “What protection does any business have on a zoning that came in and the commissioners or the attorneys did not know what that meant? To me, if you’re going to do zoning, understand it. . . If I’m commercial, then I need to be zoned commercial.”

He asked whether, if he sold his property, the new owners could continue to operate a business in his warehouse.

Commission attorney Bob Slough said he could not give Stringer a “blank check,” but that it was only the proposed expansion of his operation that had been ruled in violation of the land-use code. The entire commercial operation was not an issue in the court case, Slough noted.

“You can keep doing what you’re doing,” said Commission Chair Gerald Koppenhafer. “You can sell it and they can do the same, but not expand. That is my interpretation.”

But Stringer complained that the entire LIZ system was “faulty” and built on “false premises.”

“Nobody understood it,” he said, to applause from the audience of 15 or so.

“I’m not disagreeing with you, Jay,” Koppenhafer said.

Stringer said the county needs to begin again with a new zoning system. “We need to back out and build a solid foundation from the beginning,” Stringer said. “I’m not the only guy that’s going to be in here. . . .

“I don’t want to be non-conforming. I want to be somewhere where I can conform. At the same time, the neighbors want some protection.. . . I think you guys should really, really look at restructuring this zoning.”

“I think we will, Jay,” Koppenhafer said. “We know we’ve got some serious problems but we’ve got to try to get it right.”

County Administrator Ashton Harrison pointed out that the land-use code is frequently being amended, with more proposed amendments in the works.

From the audience, M.B. McAfee of Lewis said she didn’t think the code could be fixed with mere amendments. “That’s Band-Aid after Band-Aid,” she said.

But Harrison said it would violate the rights of people who have already been zoned under the current system to throw everything out and start over. “The amendments are not trivial,” he said.

Commissioner Steve Chappell commented that more regulations mean a decrease in freedom. “Every time we enact any of these things, we’re giving up freedoms,” he said. “I think freedom is important and so is liberty. The more laws and the more amendments we throw in, the less freedom and liberty we have.”

Harrison added that no land-use code is perfect. “To think you’re going to have a land-use code where you’re not going to get sued as a county is a mistake,” he said. “We see it with three-acre subdivisions. If you deny one, the applicants say they’re going to sue. If you approve it, the opponents say they’re going to sue.”

Fluctuating pressure

In another example of the increasing complexity of land-use questions in Montezuma County, the commissioners at their meeting Feb. 19 became embroiled in a lengthy discussion of the preliminary plat for a three-lot subdivision that, in the past, would have received approval with few questions asked.

The board did eventually approve the plat for the development, called Heritage Hill, on a 3-0 vote, but not before a long argument involving how far the county should go in ensuring water supplies for new and existing subdivisions.

The discussion even featured dueling attorneys, with Jon Kelly representing the applicant, Bengston Family Trust, and Mike Green representing an opponent, Dave Waters.

Waters said he lives near the proposed subdivision, which is at 21035 Road S, and that he is served by a water line that is shut off past his subdivision. He said the pressure at his house fluctuates dramatically. He and Green argued that the new development would bring the pressure down even further.

However, Scott Wallace, agent for the Bengston Family Trust, and Kelly said Montezuma Water Company had produced a letter stating that the water supply for Heritage Hill was adequate.

“These folks [the opponents] have got a legitimate issue with Montezuma Water,” Kelly said, “but I don’t know how that applies to the issue today, which is if there is water for this subdivision.”

The county land-use code doesn’t address water pressure, but talks about gallons per day, Harrison said.

Part of the problem is that the water line needs to be upgraded, everyone agreed. Green suggested that it might be appropriate for the Bengtsons to improve the line. “When do we say, ‘We’ve got to stop and upgrade the infrastructure to meet the needs of new people and existing people’?” Green asked.

But Koppenhafer said the county can’t guarantee there will be water for homes at all times, just as it can’t guarantee that the electricity won’t go out.

Waters argued that a new subdivision should not negatively impact him.

“Every subdivision in this county affects everybody in this county,” Koppenhafer said. “But it’s not a significant impact.”

‘A work in progress’

Concerns about water adequacy for subdivisions had come before the board the week previous, on Feb. 11, when Casey McClellan, a developer and member of the planning commission, said he thought water companies should be required to provide more details about the amount of water they have to supply proposed subdivisions – instead of just giving the county a general letter that says water supply is adequate.

McClellan asked whether, if the commissioners approved a subdivision based on such a letter, and water proved not to be available, the board might be legally liable.

“It’s always good to have as much proof as possible,” Slough said.

But Harrison said if the water companies hadn’t been doing a good job so far, the county wouldn’t be seeing the boom it is experiencing. “They’re not just up and creating these letters in a vacuum,” Harrison said.

He said a bill before the state legislature would require more proof of water adequacy, but McClellan said the bill only addresses developments of 50 lots or more.

The commissioners said water companies are close-mouthed about the specifics of their water supplies and that not all disputes or problems can be solved by the county.

“I think land use will always be a work in progress,” Chappell said.