April 2008

A controversial decision on land use in Montezuma County

By Gail Binkly

It seemed like déjà vu all over again — again.

A roomful of people had turned out to oppose a major-impact subdivision proposed for the top of Granath Mesa, north of Dolores, Colo. One by one, opponents stepped to the microphone in the commission meeting room upstairs in the Montezuma County courthouse to recite a litany of concerns: lack of water, traffic on the steep hill leading up the mesa, wildfire danger, incompatibility with surrounding land tracts.

Tim and Peter Singleton, real-estate agents representing Summerhaven Subdivision (the property is owned by their family), had been turned down twice previously by the county planning commission and once by the county commissioners on their request for small-lot zoning on their 160-acre tract.

But on March 10, something different happened. The commissioners voted 2-0 (Steve Chappell was absent) to grant approval for the Singletons’ request for AR (Agricultural- Residential) 3-9-acre zoning — thus giving the first green light to high-density subdivisions on Granath Mesa and, as one wag in the audience remarked, “ensuring work for lawyers for years to come.”

Commissioners Gerald Koppenhafer and Larrie Rule, who clearly struggled with the decision, gave no explanation for their change of heart.

But some elements of the Singletons’ planned development had changed from their first proposal, which was for 44 lots on the 160-acre parcel located at roads 31 and W about 2 miles from Dolores.

That plan included a provision allowing for a guest house on every tract. Domestic water would have been supplied only by cisterns and a well or two.

The Montezuma County Planning Commission recommended rejection of that proposal back in February 2007 on a 5-1 vote. When the Singletons appealed to the county commissioners in June 2007, they likewise said no, 3- 0, citing concerns about fighting wildfires without much of a water supply.

The Singletons revamped their plan, scaling it down to 36 lots, eliminating the guest houses, and obtaining permission from the Colorado Division of Water Resources to allow each homeowner to drill a well.

But the planning commission said no to the new proposal with a 7-0 vote in December 2007, saying the development would generate “significant adverse impacts” to adjoining landowners and noting that public utilities were not available.

‘Second rodeo’

The county commissioners, however, ignored the planning commission’s recommendation this time around. The entire debate offered contradictions and raised questions that have broad implications for land-use planning in Montezuma County.

Attorney Kelly McCabe, representing the Singletons, repeatedly argued that the only question before the planning commission and the county commissioners at this stage of the proposal was whether to allow the AR 3-9 zoning. He said specific details of the planned development would be worked out at a later stage, and that it was inappropriate for opponents to be bringing up concerns such as how so many wells on the mesa might draw down the aquifer they were using.

Under the sometimes confusing provisions of the Montezuma County Land Use Code, a proposed major-impact subdivision first gets a public hearing before the planning commission regarding the developers’ requested zoning classification and “presketch plan,” a proposal for how the development will be laid out.

If the zoning and presketch plan are approved, the developers come back for another public hearing on the final plan.

McCabe argued that questions about water were “an issue for later,” and that approval of AR 3-9 zoning did not necessarily mean there would be 36 lots as proposed, but that the lots could be as big as 9 acres.

“You’re confusing an application for rezoning with an application for a subdivision,” McCabe said. “This is not even the appropriate time to consider those issues [such as water].”

However, if the only issue before the board was the requested AR 3-9 zoning for Summerhaven, the board had already rejected that identical zoning in June 2007, noted Jon Kelly, an attorney representing three Granath Mesa landowners.

“This is our second rodeo on precisely the same application, zoning AR 3 to 9,” Kelly said. “We’re here again for zoning AR 3 to 9. That there have been eight lots removed, to us, is not taking away from the fact this is still 3 to 9 zoning.”

Discouraging data-

Further confusing the issue, the county commissioners voted to grant the zoning request but rejected the Summerhaven presketch plan, a move whose meaning was unclear. Normally the zoning and presketch plan for proposed subdivisions are approved or rejected together, not separately.

The commissioners, in rejecting the plan, seemed to be indicating they did not think the water supply had been adequately addressed. However, rejection of the plan means the developers could theoretically come back with something completely different, even the original 44-lot proposal.

Koppenhafer clearly did not buy McCabe’s argument that water concerns shouldn’t be brought up at this stage and weren’t really the county’s province anyway.

“Kelly, I disagree with you 100 percent,” Koppenhafer told McCabe when McCabe repeated his assertion. “I think we have to look at that.”

McCabe argued that the land-use code allows for subdivisions based on cisterns when no other domestic-water supply is available, and that a permit for wells from the state engineer ought to be sufficient for the county.

“As far as I’m concerned, there needs to be an adequate water supply,” Koppenhafer insisted.

Peter Singleton said Montezuma Water Company officials had told him it isn’t economically viable to pipe water up the mesa to the residents.

And Ronda Lancaster, Dolores town clerk, said there is adequate water available at the Dolores water dock to fill cisterns, although the dock has been plagued by vandalism of late. “We are using about one-third of our water supply,” she said.

Although previous public hearings on Summerhaven had brought out a number of concerns regarding whether the subdivision fit the character of the Granath Mesa neighborhood, opponents speaking on March 10 focused more on water concerns.

Sixteen people, including Kelly, an environmental and civil engineer, and the head of a Durango water-consulting firm, spoke in opposition to Summerhaven or to express serious concerns about it.

One woman read a letter of support for the development from an absentee landowner on Granath Mesa who said he wanted to see personal property rights preserved.

Eric Bikis of Bikis Water Consultants in Durango said he had been asked to evaluate the mesa’s water supply, had reviewed well permits in the area and examined aerial photos.

He said not much information is available about the water supply, “and some of the information available is actually quite discouraging.”

Bikis said existing wells on the mesa are predominantly at 150 to 350 feet deep, and there is no recharge to those wells from the Dolores River. All the recharge of the aquifer comes from the north and east, through precipitation, he said.

He said the testing done on one well drilled by the Singletons was not adequate to provide enough data to show whether there is an adequate long-term water supply for so many landowners.

“There’s only so much water to go around [on the mesa],” Bikis said. “There could be a significant impact [on the neighbors]. . . Water-supply adequacy has not been shown, in my opinion.”

Civil and environmental engineer Nathan Barton of Cortez echoed Bikis’ concerns. Although an augmentation plan for the water has been arranged with the Dolores Water Conservancy District, Barton noted, “There is a difference between a physical supply of water and an augmentation plan.” Barton said the numerous wells will have “significant adverse impacts on other folks on the mesa who have wells.”

Other concerns brought up about the proposal included emergency access in winter, when the only road to the subdivision, County Road 31, which is steep, narrow and winding as it climbs Dunlap Hill, is covered with snow or ice; and fire-fighting concerns in the dry area. The Singletons have said there will be at least one 10,000- gallon tank of water in the subdivision that could be used for any fire in the vicinity, but some opponents said that would be inadequate in the case of a large conflagration, and it would be difficult to get people to safety using Road 31.

“If you’re trying to take a lot of people off that hill in a big hurry, you’ve got a big problem,” said Dennis Miller of Mancos, who owns property on the mesa.

Granath Mesa homeowner David Doran said, in addition to those concerns, he felt the subdivision was not compatible with surrounding uses.

“We’re not against people on the mesa, it’s the density of the subdivision,” he said.

Doran later said more than 4,000 acres of the mesa is in tracts of 35 acres or above, while only about 380 acres are in parcels smaller than 35 acres.

Koppenhafer said the water issue will need to be thoroughly addressed in the Singletons’ final plan.

“If it wasn’t for this water issue, I personally have no problem with your lot size,” Koppenhafer said. “This water thing bothers me. I’ll tell you that right up front. I think you’ve got to find some solution to this water thing.

“I have no problem giving you this zoning but I tell you. . . I have a terrible hard time with this and I don’t want to restrict your property rights.”

Koppenhafer also said he was troubled by the implications for taxpayers in general.

“Ten years down the road, those people [moving into the subdivision] are going to be back in here wanting grants to get a water system to supply their water, and I don’t think the other people in this county should be providing that,” he said.

Different commissions in the past have turned down some developments they believed were not compatible with the neighborhood — a high-density subdivision proposed in the Pleasant View area, for instance, and a previous request for AR 3-9 zoning on Granath Mesa in 2001.

Property rights vs. zoning

But the question of whether Summerhaven fit the surrounding neighborhood did not appear to trouble the commissioners, all of whom are strong advocates of private property rights and have consistently voted in line with their beliefs.

In July 2006, the commissioners gave approval to Lebanon Estates, a controversial 19-lot subdivision on 65 acres, although neighbors argued vociferously that it was out of character with the neighborhood, a mix of ag and residential uses on tracts mostly 10 acres or larger.

Following the public comments March 10, it was commission attorney Bob Slough who raised the question of what other zoning was in place on Granath Mesa.

Planning Director Susan Carver said there are a lot of existing subdivisions that pre-date adoption of the land-use code, plus considerable AR-35-plus (large tracts). Some residents have expressed a preference for AR 3-9 zoning, but none had been granted yet by the county, she said.

“You have the authority under the land-use code to establish what you think the zoning should be,” Slough told the commissioners. “I think the water is certainly an issue in the sense of how much development can the water support.”

McCabe argued that the land-use code only calls for subdivisions to be compatible with surrounding uses, and that the uses on the mesa top are largely residential. Size of the tract is irrelevant, he said.

But Slough disagreed. “I think the size of the tract is also part of the usage, so you have to consider the big picture, so to speak, rather than just considering whether there’s a residence on the property.”

Carver added, “I don’t believe there’s a tract of land on the mesa that’s zoned AR 3-9.”

But Koppenhafer and Rule said their main concerns about the development were water supply and fire safety, not compatibility, raising the question of whether Montezuma County’s system of Landowner-Initiated Zoning provides any actual zoning at all — and of whether the majority of county residents even want zoning.