by Gaily Binkly and David Grant Long | July 1, 2013 4:39 pm
An illegally built deck may lead the county to revisit the decade-old plan guiding development on the Dolores
The Montezuma County commissioners are planning to review and possibly rewrite parts of the plan that guides development in the Dolores River Valley.
Following a discussion at their June 24 meeting about a structure built on the river in violation of setback requirements, the commissioners said it was time to take a new look at the plan, which was adopted into the county’s land-use code in December 2003 on the recommendation of a citizens’ working group.
How far they will go with revisions is not certain.
Planning Director Susan Carver told the Free Press that she will bring some proposed amendments to the board this month that would relax setback requirements for auxiliary structures on the river. She said she will work with James Dietrich, county community- services coordinator, on language that would identify auxiliary structures, or any structures, that could be built within the setback, perhaps with square footage as a factor.
“I don’t think the intent of the [original] regulations was to take away from enjoyment of the river, but to protect water quality,” she said.
However, it’s possible the commission will want to look at other aspects of the Dolores River Valley plan.
Two of them have previously expressed distaste for the system of “transferable development rights” established under the plan – which limits development to one unit per 10 acres unless a landowner buys development rights from another landowner – and have spoken about rescinding that aspect of it. However, they also indicated they would do so only if they heard from a number of constituents pushing for such a change.
The third, Commissioner Keenan Ertel, has said he wants to know more about TDRs before forming an opinion.
On June 24, the board discussed starting a “focus group” to re-examine the plan, with notices going to landowners in the river valley.
“It’s a good time to revisit this,” said Commission Chair Steve Chappell.
Carver agreed. “Just because a plan is in place for 10 years doesn’t mean it’s the best plan,” she said.
At their regular meeting on July 1, the board again said they were planning to have a focus group in Dolores, but its composition has yet to be decided and the process has not begun.
River-valley landowner Pat Kantor told the commissioners they should make sure they are thoroughly educated about the plan before they begin re-examining it.
“As the economy picks up, the demand for riverfront property will increase,” she said. “It’s important you understand the rationale for the group’s decisions [that created the river-valley plan].”
100 feet back
The talk about a focus group stemmed from a complaint brought to the board on June 17 about a large gazebo built on the river by landowner Grant Smith and builder Kelen Lovett. That afternoon, Chappell was absent and the other two commissioners were deadlocked over what to do, so the issue was brought up again on June 24.
No structures are supposed to be built within 100 feet of the river, according to both the county’s land-use code and its comprehensive plan.
Page 3 of the county’s land-use code contains the following statement in a chart: “Within the Dolores River Valley: All new commercial And residential construction, including I.S.D.S. [individual sewage disposal systems] set back 100’ from existing stream bank.”
The restriction is repeated on Page 48.
Also, the county’s comprehensive plan contains a section consisting of amendments pertaining to the Dolores River Valley. One of those is a recommendation that “the Montezuma County Land Use Code require that structures are set back a minimum of 100 feet from the Dolores River bank.”
But two years ago Smith began building a large, covered deck that hangs over the river and is anchored with “sona tubes,” or concrete cylinders sunk into the riverbank.
Carver told the board she had recently received two letters of concern from the public about the structure, leading her to investigate, and that Smith told her he was aware of the setback requirement but interpreted it to apply only to houses, not decks. He said he had thought the planning department was aware of the deck and no one had stopped him from working on it.
He continued to work on it even after being contacted by the planning department, later telling the board that it was for “safety reasons” because he was afraid the structure would collapse.
Carver said the working group that developed the Dolores River Valley plan recommended banning any structures, not just those with septic systems, from being built within 100 feet of the river. The goal was to protect water quality, she said.
“Since 2003, the county has enforced that policy and stringently interpreted that it applies to all structures set on piers or foundations,” she told the board. “It has precluded decks from being built.”
She said other landowners have asked to build on the river, but have been turned down. There are indeed structures within the 100-foot setback, she said, but most are “grandfathered in” because they pre-dated the land-use code.
The only exceptions, she said, have been for irrigation structures or livestock fencing. She said the planning department suggested three options:
• Find the deck/gazebo to be non-compliant and order it to be removed;
• Find it non-compliant, levy a fine, and work out an agreement with the landowner;
• Delay immediate action and prohibit further construction on the gazebo while the county launches a review of the river valley’s planning restrictions. Carver said that review could probably be done within a couple of months.
The board opted instead, on a 2-1 vote, to grant Smith an immediate variance for the structure but to also fine him $1,000. The board refused to allow comments or questions from the audience, saying this was not a public hearing.
Not that unclear
A week earlier, Smith and Lovett had argued their case strenuously before Ertel and Commissioner Larry Don Suckla. Smith said he had spent more than $50,000 on the gazebo and did not want to tear it down. He said he thought the setback applied only to permanent foundations, and that he did not understand the county’s interest in regulating other structures.
“If I build a shop in the floodplain and it gets swept away, why does the county care?” he asked.
Carver said, “We don’t know what chemicals or fuel you may have in your shop.”
At that time, Suckla had suggested a $500 fine would be sufficient, but after hearing the discussion June 24, he said he wanted to double that.
“I haven’t got much sleep over this deal – I have really, really thought about it,” he said. Lovett argued before the board that the land-use code was unclear and that he had talked to previous commissioners who said the setback regulations were mainly intended to deal with structures that had septic systems. He said other people had been denied the right to built a deck on the river because of “a misinterpretation of the land-use code.”
He also said he had not seen the language in the comprehensive plan because that information was not available to him “without digging awfully deep.” He said the land-use code “is what’s available to the common people.”
Lovett later asked, “How can I get my hands on this [comprehensive] plan?”
Carver replied, “It’s on the Internet right next to the land-use code.”
“Well, I couldn’t find it, and neither could my brother” or their attorney, Lovett insisted.
The plan and the code are listed one after another on the county’s web site under the planning section.
Chappell pointed out that the code is a legal document delineating actual policy and regulations, whereas the comprehensive plan is just an overall vision and set of guidelines.
County attorney John Baxter said the regulations seem straightforward. “The landuse code does say ‘residential and commercial construction’. I don’t know that it’s that unclear. . . I think the land-use code prohibits it,” he said.
Lovett responded that the document should be written in “plain English, for a dumb builder and homeowner to understand.”
Granting a variance
Dietrich told the board the county has no setbacks on any other streams or riparian areas in the unincorporated county, but state regulations require a 50-foot setback. At any rate, Dietrich said the deck is definitely not out of the floodplain and also that “you can’t get out of the floodplain by going vertically.”
La Plata County has a 50-foot setback requirement on the Animas River, Carver said, and the town of Mancos has very strict rules about any activity in its watershed, including weed-spraying.
Lovett countered that the town of Dolores has a new restaurant that overhangs the river.
But Commissioner Ertel said that, as a home-rule municipality, Dolores can do things differently.
Ertel said he was troubled by Smith’s and Lovett’s disregard for the law. “You knew there was a hundred-foot setback to build certain types of structures.
You knew that,” he said. “You assumed that did not include decks and roofs and stuff. You assumed it was only a very specific type of building or residence. Did you ever call the county and ask?”
“That deck’s been there two years,” Smith said.
“This rule’s been here 10 years,” Ertel said. Smith said county planners hadn’t told him he was in violation.
“You’re making us police officers,” Carver said. “I see a lot of violations when I’m driving down the road, but I’m not a police officer.” Ertel said laws should either be followed or changed.
“I don’t necessarily agree with a hundred-foot setback, but that’s the way it is right now, and that puts me as a commissioner in a real bind,” Ertel said. “Back in 2003 they felt that [policy] was in their best judgment and the commissioners implemented that, and now here we are 10 years later and I have to abide by what’s been put down by previous commissioners unless there’s some action to change that.”
Ertel argued that no decision should be made about Smith’s gazebo until the board decided whether to change the rules about setbacks.
“If we end up with the same policy, then he has to remove his deck,” Ertel said, adding that to him, assessing a fine was “giving permission” to flout the law.
Chappell noted that in 2006 a fine of $7,500 had been assessed for a house built too close to the river.
He said he didn’t want to “create a situation where builders say, ‘I’m going to build on the river, pay a $7,500 fine and get $100,000 more in property value’.”
However, he also said he wanted to be consistent with the previous decision to levy a fine on the house but let it remain.
The commissioners then voted 2-1, with Ertel opposed, to assess the $1,000 fine but immediately sign a variance so Smith could keep his gazebo.
They also seemed to agree the river plan should be revisited.
“The primary focus of the plan was to protect water quality,” Chappell said, adding that aesthetics and politics were also involved. “People that had property and wanted to control other people’s property” made the decisions, he said.
He added, “I agree we should revisit this and get the opinions of the landowners, and not six people that don’t even own river in the valley. Maybe get Val Truelson [owner of the Ponderosa Restaurant and some gravel-mining operations on the river] involved this time.”
A diverse group
Kantor, who served on the working group that came up with the valley plan, told the Free Press she found the board’s apparent interest in hearing mainly from river-valley landowners during the proposed review of the plan “really disheartening.”
“When we had the Dolores River Working Group, it was a diverse group,” Kantor said. “There were property owners large and small, environmentalists, ranchers – a good cross-section. To think that the Dolores River is just within the aegis or purview of people living and owning property on it is such a narrow perspective. It’s the most significant resource we have in the county. Where would we be without it?”
The group had 15 members, including Bruce Lightenberger, owner of a large tract on the river; Chris Majors, a landowner, rancher and accountant; Richard Tibbets, a developer; Dewayne Findley, owner of a lumber-related business; and Gene Story, then a county commissioner and also a landowner in the valley.
“We tree-huggers were outnumbered,” Kantor said.
The group convened for more than two years in lengthy meetings that often started with a presentation by different experts on water quality and floodplains. “Sometimes I didn’t get home till after 11 o’clock at night,” Kantor said. “Water managers were there and they all spoke about how it’s so important to protect the quality of water in the river because clean-up is not only so expensive, it’s often very lengthy.”
Carver told the Free Press she believed the setback requirement came out of the group’s concern for protecting that water quality.
“It’s not just sanitation that may contaminate a river,” Carver said. “There would be an auxiliary structure that someone stored solvents and oils in.”
However, she said a case certainly could be made that items such as picnic tables and tree houses should be allowed on the river.
She said she hoped to be able to bring options for amendments related to setbacks to the board by July 8 and to have a work session with the Planning and Zoning Commission at its meeting July 25.
Any changes in county setback requirements won’t affect applicable state and federal regulations, she noted.
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