February 2010

Setback for a controversial subdivision

By Gail Binkly

Win one, lose one.

A month after receiving a favorable court ruling about a land-use decision, Montezuma County has wound up on the losing side of a different court decision.

On. Jan. 16, District Judge Sharon Hansen overturned the county commissioners’ decision in March 2008 to approve 3-to-9-acre zoning for the Summerhaven subdivision on Granath Mesa north of Dolores.

The development proposal turned into one of the most convoluted sagas in recent county history, prompting four lengthy public hearings.

The subdivision, proposed for a 160- acre tract owned by the Singleton family and their company, Sin Vacas, LLC, had drawn opposition from some other residents of the rural mesa, who said it was not compatible with the generally large tracts in the surrounding area [Free Press, March 2007, January 2008, April 2008, August 2008].

They also raised concerns about water supply to the development, which would rely on wells or cisterns. Running a pipeline up to the 7,000- foot-elevation mesa would be cost-prohibitive, according to officials with Montezuma Water Company, the rural water supplier in the area.

Tim and Peter Singleton, real-estate agents representing their family and Sin Vacas, came before the Montezuma County Planning Commission in February 2007 seeking approval for AR (Agricultural-Residential) 3-9 zoning and a presketch plan for what they then projected to be a 44-lot subdivision, called Summerhaven.

The planning commission voted 5-1 to recommend denial of the zoning and plan.

The Singletons appealed to the county commissioners, who unanimously rejected the zoning and presketch plan on June 18, 2007, citing concerns about water for firefighting. The Singletons then scaled their plans down to a 36-lot subdivision, and also obtained permission from the Colorado Division of Water Resources for each homeowner to drill a well, with the water being augmented through the Dolores Water Conservancy District.

In December 2007 they went again to the planning commission, which again recommended denial of the zoning and plan — this time on a 7-0 vote.

On March 10, 2008, the county commissioners had a public hearing on the new proposal and, reversing prior decisions, approved the zoning 2-0 (Steve Chappell was absent). However, they rejected the pre-sketch plan, reiterating their concerns about water.

“If it wasn’t for this water issue, I personally have no problem with your lot size,” Commissioner Gerald Koppenhafer said at the time. “This water thing bothers me. I’ll tell you that right up front.”

Three landowners on the mesa — David Doran, John Hernandez and Don Raney — subsequently sued the commissioners and Sin Vacas over the decision.

Substantial changes?

State law provides for judicial review of “quasi-judicial” decisions made by government entities, such as zoning and land-use decisions. Generally, such reviews are limited to ascertaining whether the government body based its decision on evidence, or acted arbitrarily.

On Dec. 23 of last year, Hansen found in favor of the county in a lawsuit by Four Corners Recycling Systems and brothers Casey and Kelly McClellan over an energy-waste facility that the county commissioners had rejected. “The decision of the [commissioners] was not arbitrary; it was supported by competent evidence in the Record. . .,” Hansen wrote in regard to that case.

But in her eight-page ruling in the Sin Vacas case, Hansen said that a key consideration was the fact that the commissioners had first rejected the zoning.

“In a case where a zoning designation has previously been denied and then approved, a Court must determine whether there had been substantial changes in facts or circumstances (emphasis added) demonstrated to the Board. . .,” she wrote.

Additional evidence presented at the second hearing before the county commissioners consisted of a letter from the Dolores Water Conservancy District indicating its willingness to sell augmentation water to the subdivision’s landowners, Hansen wrote, along with a statement by the developers that the residents could get water from wells. At the first hearing it was stated they would get water by well or cistern.

Issues about fire suppression were unchanged between the first hearing and the second, Hansen wrote.

“The evidence in the March 20, 2008 hearing failed to support a finding by the [county commissioners] that a proven water supply existed that was any different from the water supply proposed by Sin Vacas in the June 18, 2007 hearing when the A/R 3-9 designation was denied,” she wrote. “Both proposals relied upon water for the Summerhaven Subdivision through wells.”

Hansen also noted that at the time of the approval there was no other A/R 3- 9 zoning on the mesa and most tracts were 10 acres or larger. Some landowners had expressed a preference for A/R 3-9 zoning, but it had not been formally granted by the county. There are some older subdivisions with small-acre zoning, but they predate the Montezuma County Land Use Code.

She concluded, “The decision to approve the A/R 3-9 zoning, made on March 10, 2008, is therefore an abuse of the [commissioners’] discretion as defined by [state law].”

At their regular meeting on Jan. 25, the commissioners discussed the decision, saying they did not concur with it.

“The difference between the two hearings to me was that we actually heard they could augment the water and provide the water,” said Commissioner Gerald Koppenhafer. “It wasn’t there in the first hearing and it was in the second. To me that was the difference. We knew it was available.”

The town of Dolores, he noted, also had said it has plenty of water to fill the subdivision’s cisterns.

The commissioners asked their attorney, Bob Slough, what would happen if the Singletons appeal the court’s decision. “Would we still be involved?” asked Chairman Larrie Rule.

Slough said the extent of their involvement would be up to them. “The county does not have to take a position,” he said.

The Singletons now have the option of appealing the district court’s decision, or returning to the county with a proposal for a different zoning designation with larger lots.