More than four years in the making, a new land use code for the city of Cortez is awaiting final approval by the city council. However, the code faces strong opposition from a concerned contingent of citizens – many of whom live outside the city.
The group, led by Dave and Lana Waters, maintains that the new code should be scrapped entirely and the existing code should instead be tweaked and revised as needed. City officials, however, say the existing code is two decades old and needs more than just a few revisions.
“A lot has changed in the 20 years since the last code was put in,” Mayor Karen Sheek told the Four Corners Free Press.
The council was poised to adopt the code at its meeting on Oct. 8. However, several citizens including the Waters spoke in opposition to it. Several others voiced support for the new code. After a lengthy discussion, the council voted 7-0 to postpone the second reading until Jan. 28.
Opponents have slated a public forum on Thursday, Jan. 9, at 7 p.m. at the Baymont Inn & Suites, 2279 Hawkins St., in Cortez.
They contend that the proposed code is too stringent and poses a threat to private property rights. They also say that at more than 400 pages it is too lengthy, that there wasn’t enough time for the public to become aware of the draft document, and that it imposes controls outside the city’s boundaries.
But city officials say the new code was developed through a lengthy and very public process with numerous opportunities for input. They say some claims made by opponents are unfounded and may represent misunderstandings of what’s in the code and what is actually different from the old code.
Who should vote?
Although the fact that many of the code’s opponents don’t live within the city may seem strange, an interest by outsiders in the city’s decisions is not unprecedented, as Cortez is the commercial hub for Montezuma County. The question of who should be able to vote in city elections arises periodically. In 2001, when city residents voted in a tax to build a recreation center, many outsiders were indignant, feeling that they should have been able to vote in the election because they spend money in the city.
Montezuma County Commissioner Larry Don Suckla expressed a similar viewpoint at the commission’s Dec. 10 meeting. Dave Waters had come to ask the board to adopt a resolution opposing the city’s new code. Suckla was sympathetic to the request. “I think it’s a good idea,” he said, adding that the code “infringes on private property rights” and that it “doesn’t belong here and I 100 percent believe it does affect the county.”
Suckla said, “People in Montezuma County also pay taxes and help fund the city budget so they should have some say, but you’re not allowed to vote.” There was audience applause.
The board did not pass a resolution opposing the code, however. Commissioner Keenan Ertel said that although Suckla had raised relevant issues, it was “inappropriate for the county to make a statement” and that they should “take the high road.”
Commissioner Jim Candelaria was not present that day, but at a subsequent meeting said he opposes the new land use code. While it clearly isn’t feasible to grant people voting rights based on where they shop, many county residents believe anyone who owns property within a municipality should have voting rights.
“People say, ‘You live in the county, why do you care?’ but a lot of the people in the county own businesses or rentals that will be heavily affected by this,” Dave Waters told the Four Corners Free Press. “We can’t vote or run for office even though we own property.” He and his wife are developers and contractors who have been doing business in the city for 34 years, he said.
“People who own property should be able to vote,” he said, noting that the Cortez Sanitation District, which is a special district, does allow property owners to vote in its elections.
Waters said he has a number of specific concerns about portions of the new code, including new design and landscaping standards for businesses.
“We have storage units in the city in the industrial park, which is basically what started this whole thing,” Waters said. “We looked at how it was going to affect us.”
They had planned to put up five storage units on a four-acre parcel in phases. “We were putting up our fourth unit when this all came up,” Waters said, “and we had to buy another permit to do our last because we could not afford to wait for the fifth one because of the walls and buffer yards and irrigation and landscaping [that would be required by the new code].”
Waters said they have put in landscaping at his existing units even though they don’t own a water tap at the site. “We went to Four Seasons Nursery and asked what would survive without water and that’s what we planted. We watered them with a water truck the first year. Now they survive on their own.
“But if this code passes it is required that you put in a drip system, so this four acres would have to have a wall around it, and would have to have a buffer yard of trees and bushes and more landscaping. You have to have the same landscaping in the industrial park you do anywhere else in town.”
Improving the city
Sheek told the Free Press the code does modestly tighten design and landscaping standards somewhat in order to improve the city’s appearance. “It wasn’t done in a way to be onerous or to add extravagant costs,” she said.
“Which Walmart would you rather have? The one we have here or the one in Durango [which is more attractive]? That’s what design standards do. A lot of franchise businesses deal with stronger design standards.”
For instance, the existing code required that 10 percent of a business’s property area of development had to be landscaped “for curb appeal, to break up the concrete,” Sheek said. “We moved it up to 15 percent. That will work in some additional expenses, but over the life of buildings, isn’t that worth it to have something that is attractive? People come to communities for the feel and the appearance.
“Many people have commented to me how much nicer the downtown area looks, with medians, trees, flowers in the planters. People have noticed that,” Sheek said. “If you’re taking a road trip which city will you be more likely to have lunch in or spend the night in? A place that’s attractive? If I were relocating a business I would look for a community that is interested in maintaining the quality of life.”
She noted that the city’s extensive parks are beautiful because they’re landscaped.
The new code was written by Kendig Keast Collaborative of Texas. “We hired a company that does these nationwide, highly recommended,” Sheek said.
“The company came and interviewed everybody on P & Z and everybody on city council and staff. They asked, ‘What do you want to see?’
But the initial draft was too urban in feel, Sheek said. “Tracie [Hughes, the city planner] worked with them and continued to tweak and tweak some of the things she knew would not work. She adjusted those. It wasn’t a case of, ‘Give us a boilerplate and we’ll stamp it good’.”
Waters has other objections to the new code, including one regarding child care.
“If you are a young couple living in town in your own home and one of you wants to supplement your family income, you have to apply to the land use code administrator for a limited-use permit because child care is not a permitted use in R-1 zones.”
Anyone offering child care will have to have additional parking spaces available – one for each three children and one for each provider or employee on duty. He questioned why additional parking is needed when parents will only be dropping off children, not parking all day.
“And at seven children you have to have a buffer yard with trees, bushes and shrubs around your house. This is over-reaching,” Waters said.
Hughes told the Free Press the state makes a distinction between child-care providers that serve up to six kids and those that have seven to 12. “A lot of people don’t want a 12-kid child-care place next to them and having pickups and drop-offs where people are parking in front of their houses,” she said.
Sheek said regulations are needed to help people get along. “You want to project some guidelines so everybody can live together in an area and not fear their livelihood is being infringed upon or that their quality of life is being damaged by what their neighbor’s doing. It’s a fine line.”
Hughes said, “Regulations for urban areas need to be stricter than in minimum-lot- size-three-acres areas. Things are more compact and there are more impacts.”
The influence zone
Another concern expressed by a number of opponents is the term “extraterritorial,” which refers to the area within three miles around the city but not within the actual city boundaries. A number of county residents believe that would give the city the power to dictate to the county what it can do in that area.
However, according to state law, a municipality’s jurisdiction is limited to very specific concerns within three miles of the municipality’s boundaries.
“We only do what the state says we can do,” Hughes told the Free Press.
A municipality has some say over items such as “bawdy and disorderly houses” within three miles of city limits and storage of explosives and waste impoundments within one mile.
“Nowhere do I see that the city has the ability to set design standards for a business or a house outside the city, or say what density a subdivision can have,” Hughes said.
The county also is expected to coordinate with the city’s master streets plan regarding developments in the influence zone. The idea is to avoid having streets that don’t line up, such as the north-south streets on either side of Empire Street in Cortez.
Beyond that, the city has the ability only to give input to the county on developments planned within the three-mile zone of influence.
“The influence area has been in the code for decades,” Sheek said.
However, Waters said the term “extraterritorial” is not in the current code.
He is also concerned about size requirements for lots. “We own part of San Juan Park, the older part of Brandon’s Gate where you drive in from the south,” he said. “It was subdivided in 1956, it was platted. It has some lots in it that are only 6000 square feet. The new code and old code require 7000.
“We have built on the 6000-square-foot lots in the past with no issues, but now the city is saying there are no vested rights in any subdivision that is not built out. We don’t know if it’s an investment any longer. Lots that they used to let us use may or may not be usable in the future.”
He also said there was not enough opportunity for input because many people weren’t aware of the new code.
“We knew it had been in the works for years but not that it was finally done. The only public meetings they had were three meetings last year in a nine-day period in February.”
But the city says there were numerous opportunities for people to weigh in on the code. (See sidebar below.) And the city tries to be as transparent as possible.
“I’ve always found city staff to be willing to talk and explain things,” Sheek said. “I’m available to talk during mayor’s hours.
“We have a city website, you can sign up for notices, you can read my articles [in the Free Press and Cortez Journal], you can come to council meetings, you can view them online – what else would folks like for us to do?”
The council has expressed a willingness to remove a provision in the new code that was roundly criticized by business owners that limits how many posters they can put in their windows. “If people say, ‘We don’t like the window thing’ and council decides not to have that, we can take it out,” Sheek said.
City attorney Mike Green has told the council they can remove sections from the new code and still adopt it, but they can’t rewrite parts without beginning a new process.
If the code is adopted, portions can still be changed, Sheek said. “This is a living document. If something doesn’t work we can change it. Does that take a little bit of time? Yes, but it’s not an insurmountable obstacle.”
At a city council workshop Dec. 10, Hughes explained why the staff felt a new code was needed. The current code, she said, lacks clarity in several places, has inconsistency with other things, and doesn’t adequately address changes in use or temporary sales.
She said the new code eases some regulations. It allows more opportunities for second dwelling units for home-owners, and offers an expedited review process. “Let’s not throw out the baby with the bathwater,” Hughes said.
Sheek agreed. “Know what you are talking about,” she urged. “Take the time to read the code or talk to somebody.”
The code’s fate is definitely uncertain. In December, councilor Jill Carlson resigned. Because council elections take place in April, there isn’t time to advertise for and appoint a replacement, so the board is left with six members.
Councilors Orly Lucero, Sue Betts, and Gary Noyes are expected to vote against adopting the new code if it does come to a vote Jan. 28. Even if the other three members vote for it, it would die on a tie.
The newly elected council would then be left to decide whether to completely throw out a document that cost some $200,000 to produce. (A large chunk of that came from a grant.) Creating a new code or substantially revising the old one would mean beginning another lengthy process.
How the city took input on the code
July 14, 2015 — Stakeholder interviews were held by the consultant.
Feb. 25, 2016 — A Citizens’ Advisory Committee meeting was held (with focus group input).
March 1, 2016 — A general stakeholder meeting took place and a workshop with City Council was held.
April 26, 2016 — The code was discussed at a City Council work session.
April 27, 2016 — The code was discussed at a public meeting at City Hall and at a Planning and Zoning Commission meeting.
Planning Commission work sessions on the code were held on Nov. 14 and Dec. 4, 2018.
Public meetings on the draft code were held Feb. 11, Feb. 13, and Feb. 20, 2019.
The Planning Commission met March 5 and May 5, 2019, to discuss the code. Council workshops were held March 12, March 26, April 9, and May 21, 2019.
A joint work session between council and the Planning Commission was held June 25, 2019.
P and Z had its hearing on Aug. 6 to review the code in advance of adoption. P and Z had its official adoption hearing on Sept 1.