June 2010

Not in the zone: Montezuma County seeks to get landowners to sign up

By Gail Binkly

What's your land zoned? Or is it zoned at all?

It's a question that has come up more and more often of late.

The Montezuma County commissioners are still pondering what to do about the two-thirds of private land in the county that remains unzoned.

Although they said on April 19 that they would revisit the issue in about a month, that time line has been extended.

Planning Director Susan Carver and Jon Callender, chair of the planning commission, had visited the board that day to present five possible options for handling the zoning situation. The commissioners asked Carver to return to them with background information on how she had come up with the options, but she hasn't had the time yet, she said.

Carver said she is just seeking direction from the commissioners. “I want to know, where do you want us to go from here, because of the resources, time and energy put into this, not only by staff but the planning- commission board members,” she said. “We'd like to come up with something that's going to be adopted.”

The push to deal with zoning in a new way stemmed partly from workshops held last year by the county to gather public input on whether to rewrite the county's comprehensive plan, a broad document that offers a general vision for future planning.

The feedback from the meetings indicated that a rewrite of the comp plan wasn't necessary, but that there was concern among many residents about the large number of unzoned properties and the problem of commercial and industrial uses

cropping up in residential neighborhoods. The five options, which ranged from adopting conventional zoning to continuing with current policy, were largely aimed at getting the county zoned and providing a plan for handling commercial and industrial uses.

Confusion and controversy

There is little disagreement that the "unzoned" category in the county's landuse plan has caused considerable confusion and created some headaches for the commissioners in the form of controversies and lawsuits - most recently, lawsuits stemming from the approval of high-density zoning for a subdivision on Granath Mesa north of Dolores and from the approval of industrial zoning for a planned business park north of Cortez.

But allowing people to choose to remain unzoned was a key component of the zoning scheme, known as Landowner- Initiated Zoning, adopted by the county commissioners in 1998 as part of the landuse code.

Under LIZ, county residents were given a period of about a year during which they could choose how their property would be zoned. The idea was not to impose zoning through county government but to let neighborhoods establish their own characteristics over time.

Landowners didn't have carte blanche to choose just anything, however. People wanting potentially controversial zoning designations, such as small 3-to-9-acre lots or commercial and industrial tracts, could only express a "preference" to the county. That preference had to then be approved following a public hearing.

But that step was not widely understood.

“So many people thought they were zoned and that wasn't the case, because the county didn't do what they started out to do back then,” current Commission Chair Larrie Rule told the Free Press.

“People expressed a ‘preference’ — somehow that word ‘preference’ got involved. Those people turned in what they wanted to do. They thought they were going to be zoned, and that left a lot of people in limbo.”

Rule said he and his wife, Pat, were among the citizens left hanging in the process. “We actually turned in the whole works and it never got done," he said. "There was a number of people in that same boat and then they started to do something [a new land use] and found out they didn't have the zoning.”

Rule said he and Pat then owned a tract with a trailer home and some activities that he regards as commercial, "but they call it industrial now." They sought to have the tract zoned for a commercial Planned Unit Development, "but it never got done. We still have all the paperwork, but we never went through the hearing." He has since sold that piece of property, he said.

‘Sucker-punched’

Rule said such a case came before the commissioners recently when Kevin "Boss" Wright asked for industrial zoning on 123 acres on County Road F south of Road G. According to Rule, Wright thought he had been zoned long ago, during the sign-up period, but none of his property was actually zoned.

Carver agreed there is a great deal of misunderstanding about what happened during the LIZ sign-up period, and that many landowners truly believe they're zoned when they aren't.

"You see that mainly with the commercial- industrial zoning," she said, also citing the example of Wright. "Six months ago he came in here and just knew it was zoned commercial. He said his dad had zoned it commercial during LIZ. We said, ‘Your dad sent in the form for LIZ but it never went to public hearing so it was taken off the zoning map.’

"He was stunned. It was like I had sucker- punched him." This is not an uncommon occurrence, she added. “I'd say 70 percent of the time they feel stunned.”

Wright went through the public-hearing process after being advised to seek industrial rather than commercial zoning, and his application was recently approved by the county commissioners.

Carver said the commissioners at the time had promised there would be “blanket hearings” to formally zone some of the properties where landowners expressed a preference, but many of those hearings did not take place.

‘Nazism’

Newcomers to Montezuma County are often startled to learn that the county is not formally zoned, and many people are highly critical of local government for not acting faster to establish a more conventional land-use system.

However, zoning has always been highly controversial here, and many residents believe it violates basic private property rights. Until the mid-1990s, the unincorporated parts of the county were entirely unzoned.

“It was pretty much do as you please,” except for some subdivision and septic regulations, former County Commissioner Dewayne Findley (2002-2006) told the Free Press in an interview in 2005. “It was zoning by variance and exemption. There was no predictability — it was entirely up to the discretion of elected officials.”

After urging by the now-defunct Montezuma County Economic Development Council, the commissioners put a question to voters in 1994 asking whether they wanted to adopt a land-use plan (there was no mention of zoning). The question, which was non-binding, passed by a margin of 56 to 44 percent. The commissioners then appointed a 12- member citizens' working group to develop the basic concepts for a plan.

“If the referendum had been for an official zoning system with zones to be determined by the government, the referendum would have never passed,” Findley said.

The working group was heavily stacked with owners of large agricultural parcels, the rationale being that they were the ones who owned most of the county’s private land and stood to be most affected by landuse decisions. Only one member, Chris Eastin of the Cortez Planning and Zoning Commission, was a staunch advocate of conventional zoning.

The group’s lengthy meetings generally drew a couple dozen people, almost all vocal opponents of zoning. Audience members, for instance, frequently labeled zoning as “Nazism” and suggested that things such as predator control were what belonged in the land-use code. That camp favored the idea of adopting a land-use code similar to that in Catron County, N.M., which stated in part, “Federal and state agents threaten the life, liberty, and happiness of Catron County. They present a clear and present danger to the land and livelihood of every man, woman and child.”

It was group member Wayne Lee, a developer, who proposed the idea of selfzoning as a compromise measure. And when the group took a weighted vote back in April 1996, that idea gained the most points out of six alternatives, with conventional zoning coming in last. A hybrid plan that combined self-zoning with a few defined industrial-commercial zones came in second.

The LIZ concept drew robust debate. Chair Larry Johnson, who opposed all zoning, commented, “Although the voluntary thing might have some pleasing points, I think it will be like being pregnant. Once you get the thing started it will keep growing and growing, and pretty soon you have a monster.”

Eastin, on the other hand, argued for conventional zoning and said LIZ would give landowners few reasons to choose a category instead of remaining unzoned - comments that now sound prophetic.

Eastin also said that landowners might not understand that remaining unzoned would not mean they could do anything they chose on their property, but that when they wanted to change from their existing use they would have to apply and go through a process.

“[LIZ] sounds like a good deal because it's neighbor-to-neighbor and voluntary, but the truth is it’s just as likely to create a tremendous amount of differences,” Eastin said at the time.

But others argued that it was already too late to impose conventional zoning on a county where widely differing land uses existed side by side.

The down side to being unzoned

A decade later, the end result is that much of the county remains unzoned.

Rule said there was a definite down side to the LIZ plan and that he has even voiced that to one of the former county commissioners who adopted it. “I told him, ‘What are you doing? You're messing up this whole deal. Either zone everybody or forget about it. Don't go halfway into something.’

“Every road that comes into Montezuma County has a sign saying, ‘Montezuma County is zoned,’ Rule continued. “But it’s not zoned. It sort of is but it's not. It's just one of those half deals that has got people totally confused.”

Although the intention at the time was that neighborhood patterns would emerge, “the only pattern that's really been established is north of Cortez in the Pleasant View area," Carver said. “They came in and zoned A-80 [large agricultural] and AR 35+ [ag-residential over 35 acres] to qualify for cluster incentives. They came in as a group.”

Carver believes landowners are missing the boat by not getting zoned, however.

“Your property rights are limited being unzoned, it seems to me,” Carver said. “What if we had a commission with a different philosophy that was more prescriptive than now? If you are unzoned, your uses by right aren't established. Zoning your property ups the ante and gives you more defined uses. Those uses are unprotected if you aren't zoned.”

Rule agreed and said cost is also a factor to be considered. Back when LIZ was adopted and there was a sign-up period, people could zone their land or state a preference for free. “They were just going to let people come in and do it,” Rule said. “Now it costs.

“That’s a big issue that people need to think about," he said. "If they have something they really intend to do [such as a subdivision or commercial use], they might as well do it now rather than four or five years down the road, when it might be more expensive. It’s not going to get any cheaper.”

Carver said if people want to get together and put in a zoning application for several parcels simultaneously, they can save money by doing so. “If people come in and they want to do neighborhood zoning, say they have 10 properties, their application fees would be only $50 apiece. If they do it separately the same application would be $500. For these landowners that have multiple tracts, they could put all their tracts in one application, even if they're not adjacent.”

Rule said he has mixed feelings about pushing to get the remainder of the private land zoned. “I'm still not too crazy about the zoning part because the county's not that big yet,” he said, adding that he's already heard from citizens opposed to mandatory zoning.

“I've had people call and rip me over it because they don't want to see it happen.”

But Carver would like to see some resolution to the ‘unzoned’ question.

“This is super important and I would be thrilled to death if we put together a plan that the county accepted and it worked for the landowners and helped to create predictability and alleviate some of the concerns people have,” Carver said. “That would be a major accomplishment.”

If the commissioners eventually pick an option and people are zoned, it will finalize LIZ, she said, and that was always the intent. “I'm shocked that 10 or 12 years later so many properties are still not zoned.”