Should it stay or should it go?
A deck along the Dolores River that was built in violation of county land-use regulations – despite a notice to the owner to stop its construction – continues to be the subject of controversy despite having been given an after-the-fact variance by the Montezuma County Commission last year.
On Jan. 27, a public hearing on whether the deck and a shop comply with federal requirements for structures in a floodplain was continued to Feb. 24 after owner Grant Smith didn’t show up.
Smith never responded to three notices asking him to be present for the hearing, Planning Director Susan Carver explained to the commission. She said communications were sent to mailing addresses both here and in Pennsylvania, the third being a certified letter.
The commissioners pondered whether they should even open the hearing without Smith’s presence, but decided to hear other from county staff regarding the alleged violations and to take public comment from others concerned enough to show up.
James Dietrich, the county’s community services coordinator, said the deck and a nearby shop had been surveyed and both found to be about a foot below the floodplain, meaning their plans must be certified as meeting the minimum requirements of the Federal Emergency Management Agency, and this was not done for either.
The hearing was intended to possibly work out a means to comply, which Dietrich indicated might be just a matter of adding another concrete anchor wall to the deck’s foundation and adding “flood panels” to the shop, vents in the lower portion of the building that would allow flood water to flow through it rather than creating an obstruction.
The deck had previously been the subject of discussion last summer, when the commissioners learned that 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.
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.
On Jan. 27, Dennis Atwater, who was recently re-elected as chairman of the county’s planning commission, condemned Smith’s blatant disregard for the regulations and urged that the structures be removed entirely rather than allowing Smith any more exceptions to the rules.
A county ordinance on flood-damage prevention adopted in 2008 requires that people building within the floodplain submit a compliance form from a professional engineer, surveyor, or architect stating that the structure has been built according to regulations.
“No structure or land shall hereafter be located, altered, or have its use changed without full compliance with the terms of this resolution and other applicable regulations,” states the ordinance.
“He [Smith] is thumbing his nose at us,” said Atwater, who strongly supports the Dolores River Valley Plan, which is designed to protect the river and its riparian areas from overbuilding and pollution. “He’s not a little boy and is really knocking the county around.”
Atwater, who helped develop the plan, said that Smith had completed other projects successfully along the river and is acutely aware of what’s required. “He needs to be told to remove them.
“We’re all dependent on that river – it’s the life blood of the county and this [decision] affects everybody.”
Beyond that, Atwater added, allowing the structures to remain as they are would be setting a terrible example for others who might wish to build closer to the river or flout other aspects of the regulations.
“The real issue is precedents,” he said. “You have court cases when things aren’t done properly in the first place.”
In this matter, in fact, a possible next step would be for the county to take Smith to court for willfully violating the land-use code, a misdemeanor for which he could be fined or jailed or both.
However, John Baxter, the commissioners’ attorney, urged them to send Smith one final notice and get “proof of mailing” from the Post Office to demonstrate to the court they had exercised all due diligence before taking this step.
