A lawsuit has been filed challenging the July 7 decision of the Montezuma County commissioners to scrap part of the county land-use code governing the Dolores River Valley.
A new nonprofit group called Protect Montezuma County Water and a county resident outside the valley, Greg Kemp, are plaintiffs in the suit, which was filed Aug. 1 in District Court. A Dolores River Valley landowner was also supposed to be a plaintiff, but the name was not available at press time.
On July 7, after a lengthy public hearing before a crowd of 120, the commissioners voted 2-1 to end the system of “transferable development rights” that had been adopted in December 2003 for the valley. The system restricted residential structures to one per 10 acres in order to protect water quality, but allowed landowners to sell any development rights, or TDRs, they did not want to use. An owner with one house on 20 acres, for instance, could sell the extra TDR to someone who wanted to build another home but didn’t have the necessary acreage.
The complaint charges that the board of county commissioners “abused its discretion, and exceeded its jurisdiction in voting to eliminate TDRS in a fashion that does not indicate understanding of the purpose and function of TDRs. No findings of fact or a basis of other credible information to support the decision of the BOCC was given.”
It also charges that the board “never stated any defect with the TDRs system, other than it confused them.”
“No written findings were made by the Board; no discussion was made of the specific reason for or need to eliminate the TDR that could not have [been] addressed through amendments provided by the planning department,” the complaint further states.
“The decision is not supported by competent evidence in the record.”
The complaint notes that the commissioners had asked the county Planning and Zoning Commission three times to review the river-valley plan, and in every instance the majority of the P&Z members supported keeping the plan as it was.
The suit also notes that of the more than 40 people who spoke at the public hearing, the vast majority supported retaining the TDR system, and that the county’s director of emergency planning, Paul Hollar, spoke about his concerns that eliminating the system could create safety problems in case of fire or flood in the valley.
The complaint calls the decision by the commissioners “arbitrary and capricious.” It states that Commissioner Keenan Ertel, who dissented in the vote, was included in the suit as a member of the board, not as an individual.
The complaint also says that the elimination of the TDR system constituted a “taking” of a private property right without compensation because, “The TDRs created a property interest that was available for purchase by any person or entity, to develop or hold for speculation, for example sale to a third party developer.”
In scrapping the system, the commissioners “also eliminated the right of parcel holders of three acres or more, but less than ten acres, to purchase a TDR,” the complaint states.
The lawsuit sought an injunction to prevent the board from taking any action that would conflict with the land-use code as it existed prior to the July 7 vote. At press time, word was not available on whether the injunction would be granted.
