Editorial: It is Time for Delta County to Step Back for Clear Look at Land Use Planning Beyond Chicken Farms
Opinion by Thomas Wills – Merchant Herald Editor-Publisher, Hotchkiss Trustee and land use planner.
A couple dozen people, mostly supporters of the Kuntz family’s 20,000 chicken/egg farm on southwest Redlands Mesa, showed up for a public hearing at the Hotchkiss Fire Station on September 15 possibly expecting some controversy or opposition to the proposal. No vocal or written opposition to the specifics of the proposal was forthcoming and nor should there have been. The site was sufficiently remote to ensure that released allergens/dust is diluted before reaching the neighbors with the applicant being the closest resident to any dust that might be carried by the prevailing winds. The next closest neighbor was fully supportive of the facility.
Unfortunately, while the Kuntz Chicken Ranch proposal appears to be the right use at the right site, the County’s behind the scenes handling of the review appears to be relighting the fire that still smolders from the two previous applications that escalated into an issue that divided the Valley community. Where should industrial scale confined chicken operations be allowed to locate and should they be regulated at all? Could a balance be found between allowing smaller lot rural residential subdivisions and new higher impact AFO’s and CAFOs? Was the future of the issue simply an endless series of lawsuits?
The question seemed to be slowing ramping down as the last couple of legal actions linger surrounding the Powell Mesa barn, which still stands empty for now. In February, County Administrator, Robbie LeValley, headed a joint APC meeting in Hotchkiss that seemed to offer a future olive branch of a complete revision of the 20-year-old Delta County Master Plan that would allow the public meaningful input on many land use planning issues including possible zoning and defining where large scale chicken farms are appropriate.
Seven months later, no progress has been reported on the Master Plan revision front and on October 15 a troubling opinion by County Attorney Jin Ho D. Peck was distributed to the Leroux Creek APC members and announced publically by County Planner, Kelly Yeager.
One of Peck’s opinions was related to a separate memo of recommendations submitted by Ken Nordstrom of the Delta County Health Department. In one paragraph of Nordstrom’s memo he recommended that the County require that “best management practices” regarding such chicken operations be observed. This would include items such as fly, odor and dust controls, which were applied to the previous Hostetler proposals. Pak wrote in the memo: “Based on a comprehensive review of the Specific Development Regulations, (State) statute and federal law, by the County Attorney for Delta (County) has determined that the paragraph regarding the BMP’s requested in paragraph 7 of the memorandum from Ken Nordstrom which begins with: “Best management practices…” does not apply to Dr. Kuntz’s proposed operation.
The BMPs requested by the County were in relation to the runoff, storm water and erosion control question. O(???), as discussed in correspondence with Dr. Kuntz on May 12, 2015.” In other words the County was requiring no mitigation of the possible off-the-property impacts of the facility due to the general day to day operations. The only concerns were where storm water from the site would go.
Pak also (apparently improperly)invokes a line in the right-to-farm State statute intended to protect existing farming operation from nuisance suits based on existing conditions and impacts. “Per C.R.S. SS 35.3.5-102(1)(b)(V), an agricultural operation that employs methods or practices that are commonly or reasonably associated with agricultural production shall not be found to be a public or private nuisance as a result of… a change in the type of agricultural product produced. Therefore, as long as the agricultural operation in question, Dr. Kuntz’s hen laying operation, is employing common methods or practices that are reasonably associated with agricultural production, there is no reason for the county to regulate or interfere with the agricultural operation based upon nuisance.”
This statement is in clear conflict with the County’s regulation that clearly differentiates “new” confinement animal operations from standard agriculture: “(Exemptions) B. Agricultural uses of the land that produce agricultural and livestock products that originate from the land’s productivity for the primary purpose of obtaining a monetary profit, except for new confined animal operations and commercial animal slaughter and rendering facilities.” Peck’s opinions seem to be saying that the County cannot impose mitigation requirements that would keep an industrial-scale feedlot or chicken farm from becoming a nuisance to the neighbors as they did in the case of the Powell Mesa barn.
In my opinion, required mitigation would seem to rise in importance if the proposed site of such a facility is in close proximity of “existing” rural residential uses. For the county not to require best management practices and mitigation of impacts in such cases would seem to leave every existing rural land owner open to having their health, quality of life and property values at risk from inappropriate siting of such new facilities be it a chicken house or a ten thousand cow feed lot or an equal number of hogs. The argument of such facilities being only just another aspect of “agriculture” and new facilities having the same nuisance protections as existing ones would similarly apply and would be just as wrongheaded.
As the Kuntz Chicken Ranch has demonstrated that are proper places for such facilities and improper places, such as rural residential Powell Mesa. I would suggest that the County develop thoughtful performance standards for confinement animal operations within the Specific Development Regulations to determine which is which so that industrial agricultural uses can locate in the County without controversy or private lawsuits. But before this is done, the County should completely revise their 20-year-old Delta County Master Plan based on broad public input on all land use planning issues including confinement animal operations and small lot rural residential subdivisions.
In order to accomplish this County should revitalize the local Area Planning Committees with new appointees representing a wide range of experience and interests and task the main Delta County Planning Commission with beginning work on the plan itself with the aid of well qualified returning Planner Kelly Yeager. The first step should be the writing of a professionally vetted comprehensive planning survey sent out to all households in the county, including those within municipalities where over half of County residents live. Thus, a sub-tabulation could determine the differences between in-town and out-of-town county residents in regards to core land use planning issues. How can the Towns and County work better together? In looking at the boom times of the 1990’s what could the County have done better? Is it time for the County to adopt building codes to not only insure that new residential and industrial structures meet the minimum standards required by most other counties and municipalities within the state? Should county land use planning take the serious issue of climate change into consideration?
The process of revising the stale, vague, 20 year-old Delta County Master Plan should move to the front of their to-do list. The best time to do serious planning is during the down times in local economic cycles, which means now. It is particularly important that such a revision not be driven by strong opinion for or against the chicken farms, or gas development or any other “hot” issue of the moment. Good planning should be able to accommodate all legal land uses while minimizing conflicts and not allowing any specific use to unreasonably abuse any other.
County Attorney Peck’s out-of-the-mainstream opinion in the Kuntz review does not seem to bode well as a positive indication of which direction the County may be leaning in. Rather, it seems to suggest that industrial agriculture is a use beyond effective review that will be allowed to abuse existing uses including rural residential neighbors. I sincerely hope that I am wrong and that our elected County Commissioners and will move quickly and thoughtfully to ensure their representation of all County residents and not to favor one very vocal use (industrial agriculture) over everything else.
(Besides being editor and co-publisher of the Herald, Thomas Wills has served 11 years as a Hotchkiss Town Trustee, 10 years as a member of the Leroux Creek Area Planning Committee and 13 years as member of the Hotchkiss Planning Commission. Any opinions expressed here are strictly his own based on long experience as a land use planner and elected official and do not represent those of any public body of which he is a member)
Tags: Chickens, Colorado, editorial, Hotchkiss Town Council, land use, Thomas Wills