In a split vote, the Montezuma County commissioners on Monday approved a variance to a regulation prohibiting structures nearer than 100 feet from the Dolores River.

Commissioners Steve Chappell and Larry Don Suckla disagree with parts of a provision in the land-use code requiring the 100-foot buffer zone for all commercial and residential structures, arguing it is too restrictive.

In a 2-1 vote, with commissioner Keenan Ertel dissenting, the commissioners allowed landowner Grant Smith to keep a deck and gazebo structure at its location on the river bank.

Smith was ordered to pay a $1,000 fine for violating the code. Neighbors complained about the structure, which Smith recently expanded.

A contentious exchange last week between commissioners and Smith ended in a stalemate and the meeting was continued.

Chappell feels the setback policy overreaches the primary goal of water quality for the Dolores River.

He said he understood a setback regulation for protecting the river from commercial wastes and septic systems, "but a total ban is more aesthetics and political. It goes beyond our control of private property that people have made the payments on and worked hard for."

Suckla agreed: "Who would want the property if they can't have a deck on the river to enjoy it?"

PREVIOUS DECISION

Ertel said he was not a big fan of the restrictive buffer either, but felt the process of a fine and variance of a regulation was flawed and gives tacit permission for people to violate regulations.

He pointed out that the setback rule was developed 10 years ago as part of a development plan specific to the Dolores River Valley. Public hearings and meetings were held for two years before the rules were enacted by a previous county commission.

"I don't necessarily agree with the rule, but it should be revisited to let landowners have a say, and then make a decision to keep it or not," Ertel said. "At that point a decision can be made. If it is the same, you have to remove (the non-compliant structure); if we change it, then it gets to stay.

"This thing bothers me because I feel we have to abide by previous commissioners' decisions unless we do something to change them, which we have not done."

At any rate, the commissioners agreed that the Dolores Valley Plan and its regulations specific to protecting the river should be re-examined during future community meetings with residents. However, it was clear that the board didn't favor the rule's prohibitive nature.

"I lost sleep over this deal," Suckla said. "We have to govern with common sense. In Dolores, you can build right up to the river, such as the library, but one step over the line into the county you can't. (The rule) needs to be readdressed."

Landowner Smith looked relieved at the decision saving his project, and said he believed the regulations only applied to residential and commercial buildings.

"That is how it looked to me, the regulations need to be more in plain English as to what can and cannot be allowed," he said.

BAD PRECEDENT

Planning director Susan Carver responded that the information is all available on-line and people can come into the office or call with questions. She added that it is incumbent on the landowner to know and follow the regulations.

"The regulations were enacted from a well-developed policy process, and enacted in 2003. It applies to all structures, including decks, and we have been enforcing that," Carver said, noting that corrals and irrigation pump houses are exempt.

She said it may be a good time to re-evaluate the Dolores River Valley Plan through public meetings and hearings, a requirement to amend the code.

But in the meantime. Carver emphasized that to be fair, the land-use code needs to enforced evenly, and allowing variances weakens the law while setting a bad precedent.

"There are many landowners who have been denied permission to build within the 100-foot setback on the Dolores, and they adjusted their plans, so why should you get an exception?" she asked Smith at a previous meeting. "We're not singling you out; it applied to everyone."

But for how long remains to be seen.

County attorney John Baxter reported county government laws are enforceable through the courts and the district attorney. The misdemeanor deck violation in county court could include jail time and fines for each day out of compliance. If charges are filed in district court, an injunction could force the removal of the deck or for it to be dismantled.

jmimiaga@cortezjournal.com