Beyond the Chicken War: Part 2 – What Does the Current Delta County Master Plan Say? What Should a New Plan Address?

Delta County Land Use Planning may be approaching its latest crossroads.  Tom Wills photo

Beyond the Chicken War: Part 2 – What Does the Current Delta County Master Plan Say? What Should a New Plan Address?

Revision Planned Over the Next Year

Essay, report and analysis by Thomas Wills

Current Status

Back on February 11, 2015 Delta County administrator, Robbie LeValley, told a joint meeting of what is left of the County’s area planning committees (APCs), that the County Planning Commission will begin a process of updating the very stale 1996 Delta County Master Plan. After several previous, aborted attempts at revising the plan over the last decade, LeValley described this process as having a goal of being a more professional, formal one, including hiring consultants to direct the process and incorporating surveys, public meetings, social media and Internet driven input including a dedicated e-mail address for comments and a plan to work closely with municipalities.

“This will not be done in isolation,” LeValley assured the attendees at the February meeting.

By State statute it is the Planning Commission, not the Board of County Commissioners, which has the power to write and officially adopt the County’s Master Plan. Practically speaking, most plans are written by professional planners, not the appointed boards, and the Board of Commissioners will have to agree to use and implement any planning commission adopted plan for it to be useful. The State requires every county to have a master plan but does not require that such plans be “comprehensive plans” that include standard land use planning tools such as zoning and building codes. It does require that plans address a list of specific land use and general development concerns including such items as how the county will deal with tourism.

In the mid 1990’s the Colorado legislature passed a law that allowed counties and municipalities to adopt their master plans as regulation, something that came about due to a frustration with many jurisdictions writing plans that supposedly reflected the will of the residents and then failing to implement them and, under pressures from growth, making decisions that contradicted them. The recent Delta County “Chicken War” case added significantly to case law related to what constitutes “adoption” of master plans as regulation.

In recent Colorado Court of Appeals rulings related to a suit filed by neighbors of two county- approved chicken layer operations near Hotchkiss, the court stated that the Delta County plan was advisory, not regulation, and said that it appeared to be mostly aspirational and not specific enough to be applied as law.

With somewhere around $200,000 or more spent in legal and administrative costs by the county in the chicken farm case debating issues that consistently returned to items directly  related to the 1996 master plan, the County understandably would like clarify both the Plan and the regulations that implement it; in the case of the chicken farm issue, the 2000 Specific Development Regulation that addresses new commercial development in the unincorporated county exempting most agricultural businesses but including confined animal operations.

Prior to the February 11 meeting the County was proposing stripping out most references to the master plan and its goals from the Specific Development Regulations  as a way of avoiding confusion and future lawsuits similar to that brought by the neighbors of the Hotchkiss chicken barns. After receiving input at the joint APC meeting LeValley announced that removal of the referenced goals would not be done at this time and the Master Plan revision process would move ahead.

History

In the very early 1990’s, Delta County proposed to adopt a Change of Use regulation using a similar measure in place at the time in Gunnison County as a template. The proposal was put aside after public meetings drew mostly negative responses.  Planning on the issue began again about a year later under the impetus of the land use committee of the Western Slope Environmental Resource Council (WSERC).  The Committee began sponsoring public meetings on the subject with county cooperation.

With public encouragement from such meetings accompanied by an ever-growing subdivision boom in the area, the County started over and hired its first County planner, Phil Sieber, who was also planner for a county in Utah that included Moab. Sieber led a process that allowed for ad-hoc planning groups to form for individual parts of the county and begin work on considering what a new master plan would contain. Previously, in response to the State law requiring a Plan, the County, in 1989-90, had adopted a minimal document that took up less than two pages.

The county, with Sieber and County Administrator Susan Hansen leading, help worked with all of the seven ad-hoc planning area groups including the three representing the North Fork (Leroux Creek, Upper North Fork, and Crawford Country). In the boom days of the mid-1990’s the main public concern was focused on a proliferation of rural residential subdivisions and the perception that such subdivision were creating impacts that were not being paid for by the developers or the additional residents and property taxes.

The county planning commission was at one point many months behind on reviewing subdivision applications despite about five proposals a month being considered. It was worried that such subdivisions, especially those with smaller lots far from Towns and wider roads would negatively impact agriculture and the rural quality of life. Who would pay for the needed road/infrastructure improvements? Shouldn’t growth at least pay its own way?

On the other side was a small, but vocal, minority of  “property rights” activists who were suspicious of  any planning.

The Master Plan was finally adopted at the end of 1996, but it wasn’t until the spring of 1998 that Delta County hired its very first full time County Land Use Planner, Kelly Yeager.

Among Yeager’s initiatives he made sure that the County Planning Commission members and budding area planners (including this reporter) received a considerable education on what the options for planning were by bringing consultants to present, lectures, workshops and other information. The major accomplishment during Yeager’s term, which ran from1999 to 2003-04 was the adoption, in 2000, of the Regulation for Specific Development. This was the first meaningful implementation of the Master Plan.

In the Paonia area the growth/sprawl issue was amplified and facilitated by the Town of Paonia’s willingness to provide domestic water service far outside of it boundaries, especially in the Lamborn Mesa and Mathews Lane areas. Subdivisions in those areas were allowed to develop at near municipal densities using Town water but with usually only septic systems. The issue came to a head when a proposed subdivision east of town, flagpole annexed to the Town of Paonia was de-annexed by a citizen vote.

The U.S. Census of 2000 surprised the Town of Paonia by showing that that town had grown little during the 1990’s boom with most of the actual Paonia area growth being outside of town due to liberal county subdivision policies and generous Town water policy. Despite this, the Town resisted developing a meaningful growth management intergovernmental agreement (IGA) between the Town and County although out-of-town water sales have been curtailed somewhat since those days.

With the decline in land development in the mid to late 2000’s exacerbated by the housing bubble burst and end of easy mortgages in 2007-08, the County’s planning went from a frustrated Yeager to a mostly ineffective Eric Sowell, to the downsizing of the department to present lead planner Dave Rice and an assistant. In the meantime the APCs have declined to the point of near non-existence with committees only meeting when there is a review, which in the case of the three North Fork APCs is only two or three times a year in recent times. A far cry from the 1990’s and early to mid-2000’s when APC members were encouraged to be proactive and develop plans for specific areas. A ground-up approach. For example the Specific Development Regulation came from ideas developed by the Leroux Creek APC under the leadership of local attorney, Steve Harper.

The 1996 Master Plan

“The (1994-96 Master Plan) process divided the County into seven planning areas based on watersheds and communities within each watershed. Citizens within each planning area volunteered to serve on a resource team. Each team defined its community vision, identified its natural and human resources and recommended strategies to achieve the vision for its desired social and physical landscape. Public meetings were held throughout the process in each planning area to get input from area residents.

            The revised Delta County Master Plan is the result of this grassroots effort and addresses the five concerns shared by all seven planning areas. The Plan may not incorporate all of the desires and recommendations of each planning area, but it does represent the common ground among them.

            The revised Delta County Master Plan will serve as an advisory document to guide both public and private entities in making sound decisions, based on a shared community vision for the future growth and development of Delta County.” From the opening statement in the 1996 Delta County Master Plan.

And what were the five most important land use planning concerns to Delta County residents in 1994-96, twenty years ago? They were:

1) Preservation of agricultural lands and open space

2) Protection of private property rights

3) Maintaining the rural lifestyle

4) Scarcity of availability of domestic water

5) Lack of land use planning

Twenty years ago the conflict that came up at nearly every public meeting was a wish by many to slow down the creation of smaller rural residential lots that were termed “sprawl” and direct growth to a pattern of expanding outward from the Towns rather than just occurring randomly. On the other side were “property rights” people like future county commissioner, Olen Lund and others, who were less concerned about sprawl or growth paying its own way than they were about maintaining a right of property owners, particularly farmers and ranchers, to subdivide their land and sell it.  The two concerns seemed by many to be directly contradictory of one another. The core 1990’s issue of how make sure that rural residential subdivisions did not ultimately degrade the rural agricultural landscape to the point of making agriculture too difficult (despite right to farm statements) was never really solved although there was a County measure passed a few years ago that established a (sort-of) set of density standards to be considered in reviewing new rural subdivisions. But, as of late the Commissioners have allowed many exceptions to the standards that in themselves contain loopholes. Since 2013 they have set aside the density standards as they apply to two lot land splits. But that’s another discussion.

The question now is what will emerge now as the main public concerns in a master plan revision process? Will advocates of allowing confinement animal feeding operation in rural areas that have been previously degraded by the county allowing rural residential subdivisions dominate? Will the advocates of traditional zoning and compatible adjacent land uses step to the fore? Will a middle ground be found? Will the oil and gas issue insert itself into the goals of a new master plan? Will residents of towns and country come together and move beyond chicken farms and gas wells and look at a bigger picture of what they would like the Valley to become to the benefit of all?

(The author served on the original Leroux Creek ad-hoc committee (1994-96) as well as on the subsequent Leroux Creek APC representing the Town of Hotchkiss from 2000 to 2010. He currently serves as a Trustee and volunteer planner for the Town of Hotchkiss.)