May 2010
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Commissioners mull options for zoning

By Gail Binkly

The Montezuma County commissioners are pondering whether to revise the landuse code to deal with the perennial problem of unzoned properties.

On April 19, they heard from the county planning commission and planning department about options for dealing with zoning concerns. The presentation came about a week after the commissioners learned that their zoning decision in a case involving Empire Electric Association had been upheld in district court.

About a dozen people attended the April 19 discussion, at which Planning Commission Chair Jon Callender and Planning Director Susan Carver presented five options for the commissioners to mull regarding zoning.

About a year ago, the county started on a process of reviewing the current comprehensive plan, a separate document from the land-use code. After holding public workshops around the county, the planning department and planning commission recommended that the comprehensive plan not be rewritten but that zoning needed work.

“At the end of 2009 we made the recommendation to you that the comprehensive plan should not be revised or rewritten," Callender told the commissioners, "but also that there were certain issues that seemed to be substantial that the workshops brought out, and things going on that suggested another look at zoning the unzoned portions of the county.”

The comprehensive plan was created in 1996 and offers a broad, general vision for development, while the land-use code provides details to carry out that plan. The land-use code and its system of landownerinitiated zoning (LIZ) were adopted in 1998.

Under LIZ, landowners were given a certain time period to voluntarily zone their properties, the idea being that neighborhood trends would thus emerge without zoning being imposed by the county. However, two-thirds of the county remains unzoned more than a decade later, Callender said, and a number of citizens at the comprehensive-plan workshops said that was a concern.

“It was recommended that action be taken to zone the unzoned parts of the county and create zoning districts,” Callender said, reading from a paper on options that was given to the commissioners.

Critics have said that the large number of unzoned properties means no predictability as to land use.

“Montezuma County, utility service providers, and others are having a difficult time with handling long-term planning for future developments and to adequately respond to growth in a cost-effective manner,” the options paper states.

In response to a question from the commissioners, Callender and Carver said the comprehensive-plan meetings had had uneven attendance, with only a handful of people showing up to some while the Mancos meeting drew around 70.

“Some meetings were better attended than others, but we felt confident that we had gotten a diversity of views,” Callender said. “The comprehensive plan did not need to be revised, but the issue of clarifying predictability for future land use was one that was identified in all the workshops.”

Another issue that was cited at all the meetings was the question of handling commercial and industrial uses.

That question was at the heart of the Empire Electric lawsuit, which was filed by three citizens against the county commissioners, Empire Electric, Montezuma Valley Irrigation Company, and a private landowner, Keith Cole, over Empire’s plan to create a a two-lot planned unit development west of Highway 491 and north of Road L. The business park is to be located on a 43-acre tract that Empire purchased from Cole that was zoned for agricultural use and an adjoining four-acre tract owned by MVIC that was unzoned.

Empire officials say the co-op is running out of space at its aging facilities at 801 N. Broadway. Empire’s headquarters are to remain there for now, but Empire wanted the new space for the maintenance shops. The companies ultimately sought to have their properties zoned industrial.

The planning commission had earlier struggled with the proposal, taking three votes to clarify its final position. On April 23, 2009, the board rejected 3-2 a motion to grant commercial zoning to the tract, then voted down industrial zoning 5-0, then passed a third motion 4-1 to deny either zoning to the applicants. The planning commission recommended against the industrial re-zoning on a 5-0 vote, citing concerns about compatibility with the surrounding neighborhood, which is residential and agricultural with some commercial activities.

Empire took its case to the county commissioners, and on July 20, 2009, they voted unanimously to grant the zoning change.

A number of neighbors objected to the proposal, saying it would create a precedent by establishing industrial uses in their area. But Commissioner Gerald Koppenhafer noted that most of the neighboring properties were not actually zoned residential or agricultural, but remained unzoned.

Neighboring landowners Shawn Well, Glenn Wells, and Danny Wilkin then filed the lawsuit.

“Evidence at the July 20, 2009, hearing indicated that there were existing industrial areas in the County available for EEA and MVI’s expansion plans, but that these were not as convenient for the Applicants,” attorney Jon Kelly wrote for the plaintiffs in their complaint.

“The neighboring Landowners presented evidence that EEA’s proposed use was industrial in nature and therefore entirely out of character with existing uses in the area. . .”

The plaintiffs charged that the zoning application and proposal failed to meet the requirements of the land-use code, and that the zoning change “would cause significant adverse impacts to surrounding properties, including those of the plaintiffs.”

However, Kelly wrote in the complaint, “The Board found that if landowners wished to protect their properties from encroaching industrial uses, they must zone their property from unzoned to some other zoning designation. . . and that the only means for neighboring land owners to protect their property values . . . was this: ‘You better get it zoned, the whole neighborhood, if that’s what you want to do to keep everything else out of your neighborhood’.” The latter was a quote from Koppenhafer.

The plaintiffs also quoted Koppenhafer’s statement that “I’m here to protect the [applicants’] property rights as much as I can."

However, Senior Judge Robert Ogburn, acting in the place of District Judge Sharon Hansen, ruled in favor of the county in a decision issued April 9.

Ogburn, whose writing style is less formal formal than that of Hansen, opened his written decision with an African proverb: “When elephants congregate, the grass suffers.”

Ogburn noted, under state law, the key question in such zoning cases is whether there is competent evidence in the record to support the commissioners’ decision — not whether the original decision was right or wrong.

"In fact, it has been held that it is inappropriate for a reviewing court to ‘weigh the evidence’ in a zoning case," Ogburn wrote.

"Plaintiffs have a tremendous burden in this kind of case,” he also wrote. “. . .The plaintiffs simply cannot sustain this burden.”

He wrote that the plaintiffs “seize upon the inartful expressions of Commissioner Koppenhafer” to suggest the board was biased in favor of landowner Cole rather than the neighbors, but “there is no evidence that BOCC gave different treatment to the property rights of any similarly situated persons. . .”

Ogburn wrote that the rezoning decision also did not constitute “spot zoning,” as the plaintiffs had charged.

“The decision in this case was made with thoughtful consideration and balancing of both the public interest of the community and the interest of the immediate neighbors of the property in question. It is true the elephants have congregated; but, hopefully, because of careful planning, the grass will not suffer too much.”


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