The ability to make tweaks to zoning rules that limit development along the Dolores River Valley was reviewed for a third time by the Montezuma County Planning Commission. These changes allow for transferable development rights that could be bought and sold on the open market.
And for the third time, the planning board agreed last week 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 Board of County Commissioners to come up with alternatives to the system of Transferable Development Rights, called TDRs, 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 the river valley development plan is balanced, and it 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 it 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, which is used by Montezuma and Dolores counties and the Ute Mountain Ute tribe for agriculture and domestic water needs.
TDRs explained
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 about 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 about 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 excluded from the regulation.
The Dolores River Valley plan and its TDR component was formulated during 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 Dolores River development plan, and one had some support.
Ten acres equals one 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,” Atwater said. “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 overreach 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, that would equate 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 said.
Gaddy did not support eliminating the plan entirely, but he said it needed “common-sense changes. I’m torn on how to protect people and rights. It is a tough balance.”
