BY GAIL BINKLY

A small corporation that had filed suit to have the county’s entire comprehensive land-use code overthrown was granted a variance Monday that will allow it to proceed with a two-lot subdivision it had sought near the West Fork of the Dolores River.

The Montezuma County commissioners voted 3-0 to grant a variance for the two-lot subdivision, which was recommended for rejection by the county planning commission because of a bridge that does not meet county standards.

The future of the lawsuit is now uncertain, according to Erin Johnson, the attorney who filed it.

Cohaco Building Specialties, Inc., an Arizona-based corporation with two owners, had sought to split a 17.15-acre riverfront parcel into two roughly equal tracts. The property lies on the east side of Road 38 about 2 1/2 miles north of Highway 145 and is reached by a private one-lane bridge used by a few other landowners.

At a public hearing Oct. 28 before the planning commission, Johnson, representing Cohaco, argued that the number of home sites did not warrant the construction of a new bridge, and maintained that it was unfair to require one subdivider to pay for replacing the bridge, which would cost $100,000 or more.

The hearing was continued until Dec. 16, when the planning commission finally decided to reject the proposal, saying "there is no commitment to make the road meet county standards."

In response, Johnson filed suit against the county on Jan. 14, 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. . .," the complaint stated.

"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."

Johnson maintained that the code does not state clearly what subdivision applicants should do in the event that a proposal is rejected by the planning commission. The county commissioners said Johnson’s lawsuit was premature, as Cohaco had not contacted them about the subdivision.

Traditionally, developers unhappy with a planning-commission decision have gone to the county commissioners for further discussion, but the procedure isn’t specifically outlined, Johnson said.

At a public hearing Monday, engineer Bud Roach said the bridge, which was built long before the current road standards were adopted, has a 16-foot usable surface and should be able to withstand loads up to 45,000 pounds without being stressed.

"The whole thing is structurally sound and appears at this time in good condition," Roach said, although he said the bridge does not meet American Association of Highway Testing Officials standards.

J.T. Wilkerson, who owns a tract served by the bridge, said the structure was built around 1970 and had served as a bridge on a state road prior to that.

County and Dolores Fire Protection District officials had expressed concerns about whether the bridge could safely carry emergency vehicles, but Roach said it should be fine for all but the largest tankers used in fire-fighting.

Roach said the bridge should have guardrails installed on its approaches, as there is a vertical drop of between six and seven feet to the river. Steel trusses serve as guardrails on the structure itself, he said.

The commissioners then approved a motion to allow a variance for the width of the bridge, contingent upon the installation of approach guardrails, the improvement of sway braces supporting the bridge, and the posting of a sign stating that the structure is one-lane and has a 20-ton load limit.

"Obviously the bridge doesn’t meet minimum requirements," said Commission Chairman Gene Story. "But based on the assumption that it’s a private bridge not accessing public property, this is my recommendation."

After the meeting, Johnson said she did not know what effect the county’s decision would have on the lawsuit against the land-use plan.

"We haven’t decided yet," she said. "I was frankly surprised [by the decision]. I was quite pleased.