A market-based type of zoning that puts a cap on development for the Dolores River Valley was reviewed for a third time by the Montezuma County Planning Commission last week.
And for the third time, the planning board agreed that the plan should not be entirely scrapped, but had differing opinions on whether it should be modified, and by how much.
The planning board has been pressured by the Montezuma County commission to come up with alternatives to the system of Transferable Development Rights (TDR) that regulates the river valley.
“We know which way the wind is blowing on this issue,” said planning board member Dennis Atwater. “If this is a political problem, we won’t find an answer. It is a health, safety and welfare problem, and I don’t see a compelling reason to change it.”
The county commission has been critical of the TDR system, saying it is ineffective, suppresses the real-estate market, and infringes too much on private-property rights.
Newly appointed planning commissioner Michael Gaddy agreed: “I hate telling people what they can and cannot do with their property. Government is not intended to protect us from ourselves, it is there to protect our rights.”
Proponents say that it’s a balanced plan that allows for some development while protecting the critical watershed long-term from the risks of overgrowth and pollution.
“It is not our place (to regulate) until if affects neighbors and society – then we have an obligation to be proactive about preventing contamination of our water source,” said planning board member Tim Hunter.
The limited-development plan targets the Dolores River, which feeds McPhee reservoir and is relied on by Montezuma and Dolores counties and the Ute Mountain Ute tribe for agriculture and domestic water needs.
TDRs uncovered
TDRs can be bought and sold – extinguishing development rights on one 10-acre piece of land and transferring them to another parcel. TDR’s can be shuffled into clustered developments, with the strategy being there are a finite number within the river valley.
There are approximately 600 available TDRs within the Dolores River Valley Plan. The cap on construction was established by an engineering study that concluded that any more development — and associated septic systems — puts water quality at risk, especially in a major flood.
Here is an example on how the TDR system works: Landowner ‘A’ has an empty 40-acre piece of property with four TDR development rights, so a home could be built on each 10-acre parcel.
Landowner ‘B’ has just 10 acres with a home already on it, and wants to build another. To do so, he must buy another TDR from a willing seller (Landowner A), thereby transferring an extra building right.
When a TDR is sold, it cancels the development right from which it originated, however that owner could purchase another TDR for that land in the future if it were available.
How much a TDR is worth has not been determined however, and not one has sold since the plan was put into law in 2004. Some blamed a sluggish real-estate market; others point to property development restrictions of the plan as a possible reason.
Homes and structures within the valley built before 2004 are grandfathered in.
The Dolores River Valley plan and its TDR component was formulated over a two-year period by a group of 30 stakeholders using majority vote. It involved 18 public meetings and hearings before being approved by the 2004 board of county commissioners.
Tweaking the plan
Muddling the issue are alternatives to the situation.
The planning board reviewed three alternatives to the DRVP, and one had some support.
Ten acres equals 1 TDR, but obtaining it is not automatic.
The 10 acres must be platted with the county to qualify for the TDR, which has a survey and administrative cost of about $750, county officials said.
A possible compromise is for the county to absorb the cost of platting, and then distribute the TDRs to each landowner for each 10 acres.
“It gives them something tangible in their hands, a certificate that they can look at, sell, trade and have a better understand of its value,” said Atwater. “The free market and the public controls it, not the county.”
None of the planning members recommended scrapping the TDR system entirely. Adjustments to the plan are being considered however.
“I feel it is over-reach to say I can’t have a deck within 100 feet of the river, or have a bathroom in a shop unless I buy a TDR,” testified valley landowner Bruce Lightenburger.
Board members agreed the valley warranted protection. According to Atwater, if the Dolores Valley Plan was dropped without an alternative, it would revert back to a standard 3-acre minimum for building a home in the county.
Fully built out, that would transfer to 2,495 new units along a 31-mile stretch of river, versus the approximate 600-unit cap on potential new construction in place now, he said.
“That much density would scare me,” commissioner Gaddy relented.
He also did not support eliminating the plan entirely but said it needed “common sense” changes. “I’m torn on how to protect people and rights. It is a tough balance.”
Dolores Valley landowner Aaron Chubbuck wants the rules to be adjusted as well. His current home is connected to the Town of Dolores central sewer, but his 10 acres is just outside the city limits, putting him under the county TDR system.
Chubbuck wants to build a new home that would be tied in with Dolores’ sewer system, avoiding an individual septic, but he cannot find a TDR for sale under $100,000. Last year, he asked for a variance to the TDR system but was denied.
Whether changes to the plan will occur is ultimately up to the county commissioners. A report will be drawn up and submitted to them this month on the planning commission’s agreement that it should not be entirely scrapped and their discussion of various alternatives.
“A clean water supply perspective is why the TDR system is in place,” said planning commissioner Hunter. “It does not stifle growth, it is managed growth to make sure it does not get out of hand so we have a clean water supply into the future.”
jmimiaga@cortezjournal.com
