A land-use plan that uses a system of Transferable Development Rights (TDRs) to limit building in the Dolores River Valley is being tested and will be reviewed by the Montezuma County Planning Commission for possible changes.

County commissioners denied a variance request by landowner Aaron Chubbuck, who wanted to exceed building limits of one home per 10 acres under the TDR system.

"I'd like to build a new home while living in a house currently on the property that is connected to Dolores sewer and water lines," Chubbuck said. "TDRs are based on protecting water quality from (individual) septic systems. I don't have that, so that's why I request a variance from Chapter 8," Chubbuck said, referring to the portion of the code limiting development through TDR.

Citing legal requirements, the commissioners denied the variance. Larry Don Suckla made a motion for it, but it failed for lack of a second. All three commissioners said the code lacks flexibility in some cases.

"Your case has merit and is something we will have to address," commissioner Steve Chappell said. "The land-use code is a living document, but at this point, it does not allow us to have a variance on TDRs."

Area towns, farms and communities depend on the upper Dolores River for clean water. To protect the watershed, development is limited to one home per 10 acres within that portion of the county.

"He's asking for an exemption for a rule he was aware of when he bought the property," planning director Susan Carver said. "The code states that you can't circumvent the TDR system."

However, additional homes can be built on a 10-acre parcel through purchasing a TDR from a landowner willing to give up the right to develop on their platted 10-acre lot.

The TDR system limits building in the valley to approximately 600 new homes, with development rights allowed to be sold and transferred in the open market for those wanting more than one home per 10 acres.

But no TDR's have sold since the plan was put in place 10 years ago. And Chubbuck learned the asking price for valley landowners willing to sell their development rights is very high.

"I contacted a lot of valley owners to sell a TDR and could not get less than $100,000," he said.

One was found for $12,000, but the estate has multiple owners who could not reach an agreement.

"People are holding on to their TDRs to see what the first one will sell for," Carver said.

James Dietrich, county community service director, noted there is a way forward for Chubbuck to build his home without purchasing a TDR, but under the current rules it would require decommissioning the current home by disconnecting the water and sewer lines.

"This is a request to increase density," he said of the proposed variance. "There are no guarantees for purchasing TDR; It is just an opportunity."

Chubbuck said he supports the plan's premise for protecting water quality by limiting development.

But he countered that the current home is connected to the nearby Dolores town sewer line as would the new home, thereby eliminating pollution risks.

"We're connected to the town sewer line. We've also improved river habitat by removing a berm, with permission from (Bureau of) Reclamation. Now, there is higher water level there for fish," he said.

The commissioners expressed concerns that there was no flexibility in the code for properties just outside Dolores town limits that are tied into central sewer and water.

"I sympathize with your situation," commissioner Keenan Ertel said. "It is tough to abandon a perfectly fine home. I recognize you have done work to improve the river and have tried to purchase a TDR, but they are too expensive."

Chappell agreed, "It's a unique situation when you are on city septic and water. There is no pollution to the river that way. We've talked about variances in these situations, but we have not done it in black and white."

Carver said other towns and counties have a point system for mitigation: Earn enough conservation points and an additional building site is possible.

The commissioners sent the issue to the planning board for consideration and research.

Another proposed change to the land-use code - adjusting what can be built within 100-foot setback of the river - is set for a public hearing Nov. 12.

But that meeting was canceled until recommendations can be made on potential changes to the TDR system.

The plan is to have a public hearing that combines all proposed changes to the Dolores Valley Plan.

"We will postpone the November 12 meeting and tie both proposed changes together into one public hearing," Carver said.

jmimiaga@cortezjournal.com