July 2010

A step toward county-wide zoning

By Gail Binkly

After a lengthy and free-wheeling discussion of zoning's pros and cons, the Montezuma County commissioners on June 14 gave their planning director the go-ahead to work on options for trying to get the entire county zoned.

“It's not going to be easy,” commented Gerald Koppenhafer. “It's never been easy. But we've got to address this thing. Zone it for what its use is, or get out of the zoning business.”

The commissioners and Planning Director Susan Carver agreed that she will revise two of five options she had earlier presented to the board in regard to zoning the county. Then she will present those revised options to the planning commission for their comment, then to the county commissioners.

On Aril 19, Carver and Jon Callender, chair of the planning commission, presented the original five options to the county commissioners, who asked for more time to think about them and more information on how they were developed.

One of the choices was to eliminate the county's system of voluntary Landowner- Initiated Zoning, or LIZ, and replace it with conventional zoning. The board never seriously considered that.

Another possibility was to do nothing and stick with the status quo. However, after hashing out the issues June 14, the board rejected that possibility as well.

“So 'Do Nothing' is not an option?” Administrator Ashton Harrison asked the commissioners at the end of the discussion.

“No,” Koppenhafer replied, “because we're either going to do something with it [zoning], or throw it out.”

The two options Carver will revise are:

• Option 2 — to divide the county into eight districts, then apply zoning to unzoned residential and agricultural properties according to their existing use and size. This would require a separate public hearing for each district.

• Option 3 — to follow a process like that in Option 2, after first adding a few new zoning categories. One would be for existing tracts under 10 acres created before 1972. Also, the current Ag- Residential 3-9 (acre) category would be split into two, AR 3-5 and AR 6-9, and the existing Agricultural Use zone would be available to parcels of 20 acres or more, instead of 35 acres or more as at present. This would allow smaller tracts to be zoned agricultural rather than ag-residential if they are indeed mainly agricultural, and Carver said there are numerous examples of small growers who sell at farmers' markets.

The fifth option, which was rejected by the board, was to start a streamlined process to encourage voluntary zoning and to hold public workshops, then proceed with zoning for each district.

The push for change came from five workshops the county held last year at different locations to find out whether citizens thought the comprehensive land-use plan should be revised. The majority of people said that document didn't need revision; however, they voiced considerable concern about the numerous still-unzoned properties across the county and the problem of commercial and industrial uses.

Providing predictability

“With 67 percent of the county being unzoned, it doesn't create predictability,” Carver said.

“You know how you have predictability?” asked Commissioner Steve Chappell. “You buy the land around you.”

Chappell said he'd read over the comments from the five workshops and “there were comments both ways” regarding zoning. However, Carver and planning-commission members Andy Logan and Dennis Atwater, who were present at the June 14 meeting, said the majority at the workshops favored zoning.

Carver said there are people who would like to zone their properties but can't afford the $500 application fee, and this new process would give them the opportunity to be zoned for free.

She noted that, for unzoned properties, the only “use by right” is the use that was in existence at the time the land-use code was adopted, in 1998. “To me, I have more rights on my property if it's zoned than if it's unzoned,” Carver said, since each type of zoning comes with a list of “uses by right.”

“What are you going to do with my 20 acres that I run my veterinary practice out of ?” Koppenhafer asked.

“Zone it commercial,” Carver joked.

“It's a great question,” Harrison said. “Hopefully the plan would identify the questions the commissioners are raising today, and we'll be asked other questions by the public.”

But Koppenhafer said the options presented by Carver failed to address the enormously controversial issue of commercial and industrial uses. When such uses are proposed in primarily residential areas, there is frequently a flurry of objections from neighbors, and the cases sometimes result in lawsuits.

One of the most notable of those was the case of a warehouse near Mancos on property owned by Jay Stringer. Stringer, who started out in 1992 with a machine shop in the same location, has said he came to the county planning department after the land-use code was adopted in 1998 and asked for his 52-acre tract to be zoned commercial.

Instead, he said, he was advised to select AR 35-plus (large agricultural) zoning. Under that zoning, a high-impact permit has to be obtained for operations that exceed certain standards.

In 2004, Stringer sought and received a high-impact permit to build a 30,000- square-foot expansion onto his warehouse. Neighbors objected and some filed suit; in November 2007 the Colorado Court of Appeals, reversing a lower-court decision, found that the county commissioners had erred in granting Stringer the high-impact permit.

The Colorado Court of Appeals ruled that, although Stringer had a commercial business on the property before the landuse code was adopted, “the right to continue the use does not include the right to enlarge the use.”

'Dropped the ball'

On June 14, Koppenhafer said Stringer's case is an example of the problems faced by businesses under the current regulations.

“We've got all these small businesses that have been in this county forever,” Koppenhafer said. “If they want to do anything without [getting] the proper zoning, they cannot expand. I think that's the biggest issue we have to address.”

Carver said her idea and that of the planning commission had been to work on zoning the residential and agricultural tracts first, then deal with business uses.

But Koppenhafer said most of the unzoned properties are agricultural and aren't controversial. “To me that is not the issue,” he said.

Koppenhafer said most of the owners of such small rural businesses would never have voted for a 1994 non-binding ballot question to adopt a land-use code if they had known tthey might not be able to expand their operation later.

Chappell agreed. “Most of these [landuse] plans are voted in by municipalities, and the people who are really affected don't have enough voters to say they don't want it.”

Carver, however, said she had researched other Colorado counties of similar size and demographics and all have zoning.

“I'm not saying we don't have zoning,” Koppenhafer said. “I just want to know how we're going to handle all these businesses out there.”

When LIZ was adopted in 1998, landowners had about a year to sign up for a zone of their choosing, although their choices were subject to approval if they wanted small-lot or commercial-industrial zoning. Owners of the smallest businesses merely sent in letters informing the county what they were doing.

That was a mistake, Koppenhafer said, as many people thought they had actually obtained commercial zoning when it had never formally been approved.

“Montezuma County dropped the ball,” he said. “They should have gone ahead to initiate zoning on the properties that people signed up for, not just held those letters. Most of those people thought they had [commercial] zoning.”

Carver said those citizens were told there would be blanket public hearings to get those uses approved, but they never took place.

Chairman Larrie Rule asked how many landowners would now be zoned if that had been done. Carver said at present just 0.5 percent of all the tracts in the county carry commercial or industrial zoning, and she estimated there would be some 300 to 350 more tracts with such zoning if it had been granted during the LIZ sign-up period.

Stopping lawsuits

Rule said there would be good reason to adopt county-wide zoning if it would stop lawsuits, but the commission's attorney, Bob Slough, said that wasn't realistic.

“Nothing is going to stop lawsuits,” Slough said. “Land use and zoning generate litigation. To think zoning is going to stop litigation is a fantasy.”

However, he added, “There are some real issues that come before this table about commercial and industrial zoning. You don't see people in here complaining about AR this or that. Basically all the complaints are about whether you are going to approve a commercial or industrial zone in a given area.”

Slough said he believes the county should zone commercial-industrial uses at the same time as the rest of the tracts.

“A lot of those people feel they have more rights if they stay unzoned,” Koppenhafer said. “It's going to be a fight in here over zoning all those properties, because they feel if they get zoned into an agricultural zone, they are restricted.”

Slough replied, “They shouldn't be in an agricultural zone if they aren't in an agricultural business.”

Koppenhafer suggested allowing commercial- industrial zoning along highways, but Carver said Colorado Department of Transportation officials don't want more such uses along Highway 491 because it would reduce the speed limit.

But whatever the solution, Koppenhafer said, “We've got to fix this, because it's not a good situation.”