35-acre parcels exempt from county's rule, judge decides

35-acre parcels exempt from county's rule, judge decides

May 3, 2001

By Jim Mimiaga
Journal Staff Writer

A Montezuma County subdivision regulation requiring neighborhood consent for additional lots does not apply for land divided into 35-acre parcels or more, District Court Judge Sharon Hansen ruled last week.

To facilitate communication and cooperation between landowners within an established subdivision, the county regulations require that an individual lot-owner wishing to further subdivide obtain unanimous consent from all other owners in the subdivision.

Each lot-owner must sign off on the development plan before it can be approved by the commission.

But a Colorado statute that exempts land subdivided into 35-acre tracts or more from the planning process also exempts those tracts from that consent rule, Hansen said.

Under Colorado Revised Statute 30-28-101, a subdivision "shall not apply to any division of land which creates parcels of land each of which comprises thirty-five or more acres of land. . ."

James and Juanita Adams planned to use that law to subdivide their 35-acre lot into three parcels. The tract is one of eight 35-acre tracts within the so-called Merritt Properties subdivision south of Dolores. But attempts to get unanimous consent from other owners within the development were unsuccessful. And after the commission denied the Adams’ request in 1999 for a variance of that rule, the Adamses took them to court, arguing Merritt Properties was not a legal subdivision.

The courts agreed, essentially ruling that under Colorado law, land subdivided into 35-acre lots or above cannot be legally deemed a "subdivision" under county authority.

"The reliance (of the subdivision consent rule) of the Montezuma County Land Use Code is misplaced," wrote Judge Hansen in the April 23 court opinion. "The division of the properties into Merritt Properties, where originally all properties exceeded thirty-five acres, did not create a subdivision."

"What it means is that we cannot enforce this policy on those size tracts," said Karen Welch, Montezuma County planner director. "However, any further subdividing below 35 acres still requires going through the subdivision process," which the Adamses must still go through.

That process involves public hearings, letters to neighbors, impact studies, utility availability, adequate roads, etc. The consent rule still applies for all amended lots within subdivisions that have lots of 35-acres or less.

The commissioners during their regular meeting Monday said they do not plan an appeal.

Also on Monday:

The commission heard from Dolores road foreman Jim Sattley about a new type of material being tested to replace magnesium chloride, the dust-abatement chemical sprayed on area roads. The sales pitch for the new chemical-based solution is that it lasts longer and is less corrosive than the salt-based mag chloride. A test application was applied near Haycamp Tuesday.
The bridge replacement down McElmo Canyon is going as planned, the commissioners heard. The slabs have been poured and supports are ready to be installed. Completion of the $267,000 bridge, paid for by the Bureau of Indian Affairs and a gaming-impact grant, is expected by July. It replaces an aging structure designed to be one-lane, but dangerously used for two-lane traffic on a road seeing increased traffic.
County Administrator Tom Weaver discussed census data. He pointed out that most of the growth occurred in the unincorporated areas of the county, straining county revenues. Montezuma County overall experienced an increase of 5,158 residents between 1990 and 2000. Four thousand of those moved to unincorporated areas, outside of Mancos, Cortez and Dolores town limits.

"That is why we are seeing so many impacts these days in the country," Weaver said.

The commissioners discussed how increased traffic and growth beats up on roads and infrastructure, but because of the spending caps set by Amendment 1, the county is strapped with a limited budget to deal with it all.

Heard from the owner of an innovative home-builder who may relocate a factory to Cortez pending positive market studies. Bill Smith, of Logsmith Homes, British Columbia, demonstrated to the commission a successful technique that utilizes scrap wood to construct solid wood homes. The small pieces are cut square, finger-jointed and glued into a series of interlocking, insulated blocks which can then be assembled at the home site in weeks, at a cost less than that of traditional wood homes.

The alternative building method may work well for this area, because it could tap into the smaller-diameter trees being weeded out in the San Juan Forest to minimize fire danger. That scrap-wood market has been sagging lately because of limited uses for it, causing several mills to go out of business.