BY GAIL BINKLY

A small, Arizona-based corporation whose proposed subdivision was rejected by the Montezuma County Planning Commission has filed suit against the county, calling for the invalidation of the comprehensive land-use code adopted in December 1996.

"The land-use code is riddled with legal and procedural problems similar to the few described here. . .," states the complaint filed Jan. 14 by local attorney Erin Johnson on behalf of Cohaco Building Specialties, Inc.

"The applicant believes that the entire land-use code and the actions of the county to enforce and administer it are arbitrary and capricious and constitute severe violations of state and federal law, and that the code in its entirety should be invalidated," it states.

At a continuation of a public hearing Dec. 16, the planning commission voted 8-0 to recommend rejection of Cohaco’s proposal for a two-lot subdivision along the West Fork of the Dolores River, according to county planners.

The two owners who constitute Cohaco bought the property in the ’70s, according to county records. Now, they each want to build a cabin on the acreage, Johnson said, so they proposed splitting the 17.15-acre parcel into two roughly equal tracts, each with a narrow piece of frontage on the river and the bulk of the acreage extending up a hillside.

The parcel, which lies on the east side of Road 38 2-1/2 miles north of Highway 145 near the Dolores County line, is reached by an old, one-lane bridge called the Wilkerson Bridge and used by some 10 to 12 other landowners in the same area.

The proposal first came before the planning commission on Sept. 23, when Johnson, representing Cohaco, gave preliminary plans for the split. At that time, county officials said the bridge could be a safety problem because it was not wide enough for emergency vehicles.

There is another, better bridge across the river at the north end of the cluster of lots, but it’s owned by the Forest Service and can’t be used by the public except for foot access, Johnson said. However, heavy trucks sometimes use that bridge when they need to cross the river, she said.

At a public hearing on the plan Oct. 28, Johnson argued that the number of home sites did not warrant the construction of a new bridge, and proposed setting up an association among the landowners to address maintenance of the aging structure. Cohaco was willing to pay for a structural analysis of the bridge, pay for and install traffic signs, and chip in for repairs, Johnson said then.

However, the landowners apparently weren’t interested in improving the bridge, she said Friday.

"I sent out 12 letters and three or four came back and said, basically, ‘We’re OK,’ " she said.

The county road department, however, maintained that the bridge was not adequate to meet safety standards and that no further land splits should be allowed unless the bridge was improved and widened to 24 feet, the standard width for roads serving more than three lots.

Johnson maintained that it was unfair to require one landowner to pay the cost of replacing the bridge, which would be "easily over $100,000."

The public hearing was continued from Oct. 28 to Dec. 16, at which time the planning commission approved a motion to reject the plan, "as there is no commitment to make the road meet county standards."

Johnson said the land-use code provides no clear explanation of how to appeal such a decision. Traditionally, developers unhappy with a planning-commission decision have gone to the county commissioners for further discussion, but the procedure isn’t specifically outlined, she said.

"By state law, the planning commission is just an advisory board," she said. "but they’ve screwed up this code so horribly from a procedural standpoint — it doesn’t tell you that I even have the right to appeal.

"They say, ‘Of course you have the right,’ but it isn’t in the code. Procedurally, you don’t know what to do."

Johnson served on the 12-member citizens’ working group that developed the general idea of the comprehensive land-use plan and its controversial zoning scheme, Landowner-Initiated Zoning.

She was then hired by the county to draft the land-use plan, and did so. However, the county commissioners were not happy with her effort and had much of her language rewritten.

"We felt that the intent of the land-use committee was not being served by the regulations she was attempting to draft," said Commission Chairman Gene Story on Friday. "We felt we needed to take another look at that."

The county contracted with a highly recommended land-use attorney from Gunnison County, Story said, and he made numerous changes and additions; commission attorney Bob Slough also had input.

"I do not think there’s a problem with the code," Story said. "We had it reviewed in detail by other land-use attorneys.

"At this point I think we’re very, very comfortable with it, but when you get into this stage, all attorneys are going to interpret that language differently."

Story said the 24-foot road requirement had been applied by the county for several years.

"It all goes back to the public-safety issue," he said.

Story said he thought it premature for the developers to sue the county when they had not attempted to meet with the county commissioners to work out a solution to the bridge problem.

"There’s never been any discussion at our level," he said. "It appears to me it’s almost premature to go to this degree."

Johnson said she originally had not planned to press the matter so far.

"I wasn’t going to make a big issue out of this," she said. "I was going to let somebody else sue them. We just wanted to do a simple appeal to the commissioners.

"But I know it’s a poor document. I just started working through the code and realized how bad it is. You can’t get worse than this."

Under state law, the planning commission must direct its planning staff, after the public hearing, to prepare findings of facts on the situation and send them to the county commissioners and the applicant, but that was not done, Johnson argued in the complaint.

In addition, the planning commission’s minutes do not show the vote on the motion to recommend denying the subdivision, she said.

And, she reiterated, the code does not explain how applicants are to proceed in the face of a planning-commission rejection.

"Nobody understands the importance of proper due process," she said. "It’s best to bring this up sooner than later."

She said the problems could not be resolved by a simple revision of the land-use code.

"They’ll have to rewrite the whole thing," she said.