It was no surprise that the plaintiffs dropped their lawsuit against the Montezuma County commissioners for rescinding the transferable development rights program for the upper Dolores River Valley.
We admire people who will put their money where their mouths are and challenge decisions they believe are wrong. Lawsuits require substantial funding to pursue, though, and that support was not available in Montezuma County. A like-minded outside organization could have stepped into to help, but that is not the way local politics should play out — and the tale is instructive for commissioners beyond Montezuma County; these are issues that county governments frequently must address.
A victory was not likely. County commissions do have the power to set land-use policy, including by changing or voiding past policies. Ideally, they make those changes thoughtfully, with one eye on their current constituency and another on a future that may be difficult to forecast.
The program was a unique way to address the challenges of growth in a still-pristine landscape restricted by physical terrain and bordered by public lands. Transferable development rights could have been a good thing over the long run, allowing some landowners to profit while maintaining their open space and agricultural operations, and others to profit by developing their property to a higher density, all the while protecting a very valuable resource.
But in order for the TDRs to be lucrative someone had to want to spend substantial money to build a high-density development, and for the past few years, the economy has not favored that. It has not favored development at all. TDRs were a minor hurdle compared to the economic downturn. With no demand, the TDRs essentially were worthless. Meanwhile, trees on the hillsides were dying. The land use code was not to blame for either of those circumstances.
It is true that conservation easements offer possibilities similar to those provided by TDRs, and some land in along the river already is protected in that way. TDRs, though, provided a mechanism to acknowledge and address the tradeoffs inherent in development. Without them, county government will have to do that. It cannot let money win every time. It cannot let the costs of development flow downstream from the benefits.
It has been hard for some people to foresee a future when the upper Dolores would be heavily developed. With so little growth happening, they wondered, why not let the market move freely and see if that speeds up development? The result remains to be seen.
The free market, however, provides for the most profit, not the best protection for the watershed, nor for the viewshed that makes the land desirable. Those challenges can be managed, if the current and future county commissions are willing to realize that growth is never free of costs. There will be problems that need to be addressed. There will be conflicts of interest between downstream water users and the highest upstream bidders. Some of what we value — both the tangible and the ineffable — will be sacrificed. The market never favors the little guy, and there is some naivete in Montezuma County about how different the big players really are from the rest of us.
The economy is improving. On Dec. 23, the Dow Jones Industrial Average rose above 18,000. Demand for mountain real estate will rise. With that in mind, the commission should place clean water as its highest value, as a previous commission did when it instituted the TDR program. Whatever regulatory mechanism the county uses, protection of the Dolores must be the result. For Montezuma County commissioners and those observing this case, keeping a long view would best serve the county. While legal, rescinding the TDR option fell short of that standard.
