September 2009

Never a quiet moment for Montezuma County: Industrial proposals spark more lawsuits

By Gail Binkly

Two lawsuits filed this summer against Montezuma County indicate the amount of controversy that continues to swirl about major land-use decisions.

In one case, the county is being sued for approving an application. In the other, it’s being sued because the county commissioners turned a project down.

What should Montezuma County look like in 10 or 20 years? Does the current comprehensive plan offer enough guidance, or should it be revised?

Citizens will have the opportunity to give input into those questions on Thursday, Sept. 10, at 6 p.m. at the Lewis-Arriola Community Center, 21176 Road S. The Montezuma County Planning Commission has been conducting scoping meetings focusing on the need to update or rewrite the county comprehensive plan. This is the fourth in a series of four meetings.

Anyone interested can attend and give input; you don’t have to live in Lewis-Arriola.

For a Power Point presentation about the current plan visit www.co.montezuma.co.us and click on Montezuma Comprehensive Plan Presentation.

Still, the two cases have a couple of things in common. In both, the county commissioners made a decision that was contrary to the recommendation of the planning commission. And both suits involve plaintiffs who were interested in becoming county commissioners themselves.

A complaint filed Aug. 19 in District Court against the commissioners, Empire Electric, Montezuma Valley Irrigation Company, and landowner Keith Cole seeks to overturn the commissioners’ July 20 decision to approve an application by Empire and MVIC for industrial zoning on a 76-acre agicultural tract owned by Cole at 11401 Road 24, near Highway 491.

The zoning change paved the way for Empire and MVIC to create a twolot planned unit development to house their headquarters. The actual PUD plan, however, still must be approved by the county.

The plaintiffs — Shawn Wells, Glenn Wells and Danny Wilkin — are neighboring landowners who opposed the zoning change. They and their attorney, Jon Kelly of Dolores, state in the complaint that the plaintiffs and others at the July public hearing presented evidence that rezoning the property as industrial violates the requirements of the land-use code, “would cause significant adverse impacts to surrounding properties, including those of the plaintiffs,” and “impairs the health, safety and welfare of the surrounding property owners. . .”

The complaint also charges that the decision does not comply with state law, the land-use code or the county’s comprehensive plan; that it is not supported by competent evidence in the record; and that it constitutes unlawful spot zoning.

The complaint seeks an order from the court vacating the approval of the industrial zoning and compensating the plaintiffs for attorney’s fees.

Not on the list

The other lawsuit — by Four Corners Recycling Systems and Hovenweep Canyon Ranch — was filed June 30 against the county over the rejection of an application for special-use and high-impact permits for a proposed waste site near Hovenweep National Monument.

The highly controversial facility was proposed for 83 acres of a 473-acre tract in the remote western part of the county. It would have been for the storage, treatment and recycling of wastes from oil and gas exploration and production.

Such wastes include briney, chemical- containing liquids and petroleumcontaminated soils, E & P waste facilities are typically controversial. Another, much smaller proposal for evaporative ponds 16 miles east of Monticello, Utah, recently received a thumbs-down recommendation from the San Juan County Planning Commission and now will go before the county commissioners there, according to the San Juan Record.

The complaint by Four Corners Recycling and Hovenweep Canyon Ranch, which is owned by brothers Casey and Kelly McClellan, charges that the commission’s 2-1 decision on June 1 to deny permits for the waste site was “based solely upon its legal conclusion” that Section 3303.4 of the land-use code does not allow such a project because it does not list wastedisposal sites as among the uses allowed under a special-use permit.

The plaintiffs and their attorneys, Michael Chapman and David Hall of Durango, claimed the commissioners have the discretion to approve special uses not specifically identified on that list and that they have in fact already done so.

The language in 3303.4 was revamped in July 2008, when the commissioners adopted amendments stipulating that a wide variety of industrial and commercial uses can be allowed on agricultural or unzoned tracts through special-use permits, without rezoning the properties.

Among the 14 uses listed as allowed by permit are sewage systems, oil and gas wells, gravel mines, mobile asphalt plants, and special events such as concerts and motorcycle rallies.

“Waste-disposal sites” and “public and private landfills” were originally also among the uses proposed for listing, but they were removed from the list by the county commissioners and were not adopted as part of the 2008 land-use-code amendments.

‘Adverse impacts’

In the county’s answer to the complaint, commission attorney Bob Slough denied that the board’s decision was based solely upon waste facilities not being a listed use, and also denied the claims that the commissioners have the discretion to approve other special uses and have already done so.

In their formal findings regarding the decision, the commissioners had stated that the proposed special-use permit was “not in conformity with the Montezuma County Land Use Code” and that it would “generate significant adverse impacts on other property in the area. . .”

Also, during discussion at the June 1 public hearing, Slough noted that the land-use code says that conditional uses on ag lands must satisfy several conditions, including that the proposed use “does not create any danger to safety in surrounding areas.” He then cited a state statute that says that “disposal of wastes from oil and gas energy and production raises public health concerns. . .”

The county’s response also notes that one of the owners of Hovenweep Canyon Ranch, Casey McClellan, was a member of the planning commission at ºthe time the amendments were crafted and adopted, and knew that waste sites were not on the list.

McClellan, the response states, “was involved in the legislative process of amending the Montezuma County Land Use Code. . ., including the current version of Sect. 3303.4. . . . Because of his involvement in said legislative process, Plaintiffs’ principal has personal knowledge that Defendant Board specifically refused to include ‘Public or private landfills’ and ‘Waste disposal sites’ in said amendments.”

McClellan had talked seriously of challenging incumbent Commissioner Gerald Koppenhafer in the 2008 election, but at the last minute decided not to, saying he was moving to another district. He resigned from the planning commission July 5 of this year after 3 1/2 years of service.

Wilkin, a residential developer and one of the plaintiffs in the Empire Electric lawsuit, did run against incumbent Larrie Rule in 2008, but lost in the Republican primary.

Where to put industry?

Wilkin told the Free Press that he and his co-plaintiffs were reluctant to sue. “We’re suing ourselves three times,” he said. “We all own shares in MVIC, we’re all members of Empire Electric, and we’re all county residents.”

However, he said he feels strongly that the Empire development should not be allowed in an agricultural-residential area. “I really feel what they’re doing is irresponsible development, because everybody knows we need an [established] industrial zone in the county, and until the commissioners draw the line and say, ‘We’re doing something that makes sense,’ we’re going to continue to have these battles.”

He said this would have been the perfect time for the commissioners to figure out where an industrial area or industrial park should be located. “I think the commissioners really dropped the ball,” he said. “We feel like they totally overlooked that industrial zoning has impacts on neighborhoods.”

Wilkin said Empire Electric probably will be a good neighbor, “but once you set the precedent of industrial zoning in that area, you don’t know who your next neighbor is going to be. We’ve chosen to build our homes there. We don’t want industrial zoning out there - that’s the bottom line.”

Wilkin said either the area south of Cortez along South Broadway and around the airport, or the area east of Cortez near the fairgrounds, would be better-suited to an industrial area. Such a project could actually beautify the entryway into the city, he said. “Look at Bodo Park [in Durango],” he said. “It’s not an eyesore. There’s a lot of good professional businesses. It creates a lot of jobs. We could have something comparable.”

He said he doesn’t believe land prices in these sites are too high, as some have said, but added that at any rate, “Who says industrial development should always be cheap?”

The reluctance of companies to locate within 5 miles of the state port of entry on South Broadway (because their trucks then must clear the port every time they leave the business) is also a weak reason not to have industry south of Cortez, Wilkin said.

“If there’s a problem with the port of entry, the commissioners need to talk to the state or the legislators or whoever to get it changed,” he said.

Confusion over zoning

Wilkin also criticized the commissioners for citing the fact that properties surrounding the Cole tract are unzoned as justification for allowing an industrial use in the neighborhood.

“The land-use code allows for unzoned property,” Wilkin said. “It’s a land-use classification. If they’re going to use that against a person they need to tell everybody that. They need to say, ‘If your property is unzoned, you have no rights.’ ”

However, when he ran against Rule, Wilkin was highly critical of the unzoned classification, saying it needed to be taken off the books. He says that’s still the case.

After the land-use code was adopted in 1998, county landowners were given a year to voluntarily zone their own properties. If they chose a small-lot designation such as 3-to-9-acre zoning, however, they could only express that as a “preference” until they actually applied for the zoning change and got county permission.

Landowners who didn’t zone themselves were considered unzoned.

Wilkin said there is widespread confusion about what it means to be unzoned, with people thinking they can do anything they want on their land. (Actually, if they change their current land use, they have to seek county permission.) He said people also mistakenly believe if they expressed a zoning “preference” they are already zoned, which they aren’t.

He said the commissioners should set about getting the entire county zoned, starting with seeing what preferences people have chosen but not finalized. However, he said the fact that people have to pay $500 for an application for zoning is a deterrent. “The county ought to look at changing that and make it simple and easy for people.”

Wilkin also said there needs to be more consistency and predictability in the code and in how applications are approved or denied. He noted that the county commissioners ignored the recommendations of the planning commission both in the Empire PUD approval and in the rejection of the Hovenweep-area waste pits.

“Whether you’re a property owner, a business owner, or a developer, you don’t know what’s going to happen in Montezuma County on any given day,” he charged. “You should be able to say, ‘All right, we know this project will never fly in the county.’ But you don’t have that.

“I’m not a person who wants to stop everything. But I think we’re always slapping a Band-Aid on something and always putting out fires, and until we get things in the land-use code cleared up, that’s going to go on.”