The non-compliant deck that prompted a review of the Dolores River Valley Plan came before the Montezuma County commissioners again on Feb. 24, when they held a public hearing regarding property owned by Grant Smith at 18440 Highway 145 adjacent to the river.
The deck had been the subject of discussion last summer, when the commissioners learned it had been built in violation of a setback requirement in the county’s land-use code that says no structures in the Dolores River Valley are to be built within 100 feet of the river. Smith had been notified by the county to stop construction on the deck, but ignored this notice and completed the project, explaining to the commission that it would have been dangerous to let the deck stand only partially completed and therefore without structural integrity.
After a hearing on that issue June 24, 2013, the commissioners voted 2-1 to grant a variance for the deck if Smith agreed to pay the county $1,000. They also directed the Planning and Zoning Commission to review the rules governing the Dolores River Valley to see if they needed to be revised.
On Feb. 24, the deck and a nearby workshop were the subject of another public hearing, this one because Smith had failed to provide forms showing the structures were in compliance with minimum requirements of the Federal Emergency Management Agency.
The deck and a shop lie one foot below the floodplain, according to county planners.
Smith had not shown up for a previous hearing on the issue Jan. 27, even though he had been sent certified letters to two addresses, but was present on Feb. 24.
James Dietrich, the county’s community- services coordinator, said the deck and shop had been surveyed and both found to be about a foot below the floodplain, meaning their plans must be certified as meeting the FEMA requirements, and this had not been done for either.
Dietrich said landowners are supposed to certify to the county that structures were built in compliance with the county’s floodplain resolution adopted in 2008 and updated in 2014. Landowners must provide a form stamped by a registered professional saying structures were built according to FEMA standards.
“We have an incomplete floodplain development compliance form, so we’re just requesting the forms be completed for both structures,” Dietrich said.
Surveyor Ernie Maness said he is working with Smith to provide the certificate.
Maness said an engineer has addressed how to remediate the workshop so it can be brought up into compliance and it should be fixed by April 1. Remeditation will involve placing a berm around the shop to prevent floodwaters from reaching it and reinforcing the anchors of the deck.
Dietrich said the deck also needed certification as meeting the county’s floodplain regulations. Smith said he thought he already had a variance for the deck, but Dietrich said the variance was specific to the setback, not the FEMA requirements.
Maness said they hadn’t really addressed the deck but he believed it could be brought up to compliance.
“The [FEMA] standard has nothing to do with setbacks or water quality,” Dietrich said. “The minimum standards apply to all structures for the purpose of being able to get flood insurance.”
During the public-comment portion of the hearing, Planning and Zoning Commission Chair Dennis Atwater – who said he was speaking only as a private citizen – seized the opportunity to chide the commissioners for ever granting a variance for the deck.
He read language from the county’s floodplain resolution that specifies when variances may be given. The resolution states that variances from the river-valley plan are only to be issued upon “showing a good and sufficient cause [and] a determination that failure to grant the variance would result in exceptional hardship to the applicant. . .”
“I have not seen a good and sufficient cause,” Atwater said. “Generally there has to be a hardship. It appears to me that the only hardship here is self-improvement.
“I’ve been unhappy with this variance . . . because I don’t feel this board followed the procedures required in this resolution in granting the variance from the very beginning.”
But Bruce Lightenburger, a landowner in the river valley and a member of the group that created the Dolores River Valley Plan, said he had come to believe the working group had “made some major flaws when we put together the TDRs for the valley plan.”
“All it’s done is kill the property values down on the river,” he said.
He said the plan’s rules “are so convoluted that a normal man can’t read them and understand them,” and urged the board to scrap them and start over.
Smith then asked, “How do you know I’m underneath the floodplain?”
Dietrich said it’s incumbent on the landowner to prove that he is in compliance – not on the county to prove he isn’t.
“Nothing in this proceeding has anything to do with the Dolores River Valley Plan at all,” Dietrich explained. “The standard has nothing to do with setbacks or water quality. Minimum standards apply to all structures for the purpose of being able to get flood insurance. This would be the same standard for any floodplain within the county,” including McElmo Creek, Hartman Draw or others.
The standards are set by the state, Dietrich said. He pointed out, however, that many structures are “grandfathered” because they were built before the floodplain standard was adopted.
People who don’t participate in this program find it difficult to get a loan or insurance on their property, he said.
The commissioners made no decision on whether Smith was in compliance, but continued the public hearing to Monday, April 14, at 1:30 p.m., to give him time to get the certifications.