An Animas Valley property owner must reapply for a floodplain development permit after the La Plata County Board of Commissioners unanimously voted Friday to rescind the permit he’s held since June.
Larry Simmons has been hauling fill – dirt, asphalt, rock and concrete, he says – off and on over about 17 years, with plans to build a house when the site is elevated out of the floodplain. But neighbors Jane Gerstenburger and Anne Markward appealed the floodplain permit, claiming county Building Director Butch Knowlton issued it in error.
Friday’s decision was the result of miscommunication between the Colorado Water Conservation Board and the county about state requirements. Knowlton had asked Simmons to obtain a hydrologic analysis of his property with the incorrect understanding that the state required it.
The state regulation indicates a hydrologic study is not, in fact, necessary to acquire a floodplain development permit. Rather, documentation including a site map certifying that no fill has encroached upon the floodway is all state and county code demand. As a result, both parties have spent thousands on what appears to have been unnecessary scientific analyses.
“Knowlton’s only mistake was in relying upon CWCB’s interpretation of state rules,” said county attorney Kathleen Lyon in Knowlton’s defense. “His issuance was based in part on findings from the hydrologic study. Since there is no basis in our code to require the study, it can’t be used to determine the issuance of a permit.”
The county’s decision neither limits Simmons’ ability to reapply to the building department for a permit nor condemns him for error. His lawyer, Tom Dugan, said his client may reapply as early as next month and asked that the process be conducted “efficiently, fairly and correctly.”
But the issue runs deeper than that.
Last month, the same neighbors objected that the planning department does not require Simmons to have a land-use permit to allow trucks from about 15 local companies to haul fill to his 35-acre property. They claimed Simmons is running a commercial operation under the pretense of elevating the property to build a home that has not appeared after nearly two decades. A split vote from the county Board of Adjustments rejected that appeal.
The fill is monitored by neither Simmons nor the county. Commissioner Gwen Lachelt suggested that in the future evaluation of Simmons’ floodplain development permit, the county consider whether illegal debris is hauled to the property, as the neighbors testified, and if it is compactible.
Pending approval of a new floodplain permit, Simmons is not allowed to haul fill onto his property.
The neighbors called for revisions to county processes for both land use and floodplain development permitting.
“There needs to be some education for the floodplain administrator on what the standards are, and how to make this not happen again,” said Amy Huff, attorney for Markward and Gerstenburger. “Best management practices aren’t employed in La Plata County.”
Huff urged the county to begin from scratch in its analysis of Simmons’ impact to the floodplain.
Shane Sigle of Riverwise Engineering was hired by the neighbors to analyze the hydrologic study for the Simmons property.
He said the floodplain issue outstrips county regulation and is under the jurisdiction of the Federal Emergency Management Agency. Sigle advised two actions for the county: ask FEMA for guidance about permitting and appoint an advisory task force of engineers and hydrologists.
Sigle later told The Durango Herald that in the worst case scenario, if Simmons continues to haul fill unchecked to the site, it could cause flood hazards for adjacent properties as well as disqualify the county for disaster funding if it does not comply with FEMA regulations.
Asked why a house has not manifested in nearly 20 years, Dugan told the Herald it is an exaggeration to say fill has been dumped on the property consistently since the late 1990s. For instance, there was a break during the recession, he said.
jpace@durangoherald.com
