A lawsuit has been filed against the Montezuma County commission for eliminating the Transferable Development Rights program within the Dolores River Valley.

The plaintiffs listed are Greg Kemp, landowner Monica Murphy, other interested parties, and a new nonprofit called Protect Montezuma County Water. They are represented by attorney Erin Johnson, of Rico.

Plaintiffs are seeking a court order to nullify the July 7 decision by the county commission that canceled the TDR program outlined in Chapter 8 of the Montezuma County land use code.

"We believe the TDR program should be re-instated," Johnson said Monday morning. "The county commission acted in excess of their authority and made the decision to eliminate TDRs in an arbitrary and capricious manner under Rule 106."

The suit, filed Friday, Aug. 1 in District Court, also claims removing the TDR program is an illegal property-taking in violation of the U.S. Constitution.

"People platted TDRs, they have value, and the commission took them away on a whim, saying they were confused by the program," Johnson said. "Landowners were relying on the program, and people were interested in purchasing TDRs."

While the case is pending, the lawsuit requests the court to issue injunctive relief "to maintain the status quo, which existed before the July 7, 2014 decision of the BOCC to eliminate TDRs and Chapter 8 of the Montezuma County land use code."

Development cap

TDRs were approved by the county in 2003 after a 20-month process of community meetings and majority agreement from multiple stakeholders.

The form of market-based zoning put a development cap within the county's portion of the Dolores Valley to 620 new homes, each represented by one TDR.

To add flexibility, property owners with a minimum of 10 undeveloped acres could voluntarily sever and convey development rights called TDRs.

The system provided a mechanism by which cluster development could occur that exceeded the base density of one residential unit per 10 acres through the purchase of TDRs. No recorded TDRs have been bought or sold since the program began.

Proponents of TDRs said the development cap was critical for protecting water quality long term. Since it was canceled, the valley land-use regulations revert back to the accessory dwelling allowance for each ten acre parcel, potentially doubling density.

Opponents of the plan said it unfairly restricted property rights, was confusing, and that TDRs were difficult to purchase and cost prohibitive.

Flawed process

The lawsuit cites "confusing" procedures during the July 7 public hearing that resulted in TDRs being canceled.

The public meeting attracted 120 people. Forty people spoke during the hearing, mostly in favor of keeping the TDR program.

Following reviews in the months leading up to the hearing, the Montezuma County planning commission suggested several revisions to the Dolores Valley Plan, but recommended three times that the overall TDR system remain intact.

However, in the 2-1 vote, commissioners Steve Chappell and Larry Don Suckla agreed to end the TDR program. Commissioner Keenan Ertel voted against its elimination.

When asked earlier if there would be a vote that day, Ertel, the board chairman, indicated that he was not prepared to vote because he needed more time.

Chappell then made the motion to eliminate TDRs, which had to be repeated for the clerk. Commissioner Suckla added an exception to the motion "that those lots already platted would be grandfathered in."

The lawsuit claims the decision was not supported by "findings of fact," and it was "altered by a confusing 'exception', making the effect of the commissioners decision unclear."

According to the lawsuit, the commissioners majority vote to end the program "abused its discretion" because it was done "in a fashion that does not indicate understanding of the purpose and function of TDRs."

The county is required to submit a certified record of proceedings of the decision, after which a timetable of court dates is set.

The lawsuit relied on Rule 106, Johnson said, which permits court review of a government body actions if plaintiffs believe they have exceeded jurisdiction or abused their discretion.

Anyone interested in re-instating the Dolores River Valley's TDR program is invited to attend an informational meeting hosted by "Save Montezuma County Water" Thurs, Aug 14, 6 p.m. at the Dolores Public Library.

jmimiaga@cortezjournal.com