Gazebo, deck too close to river raises setback issue

Commissioners disagree on response to land-use code violation

Montezuma County officials sparred with a landowner and his builder Monday over construction of a gazebo and deck located too close to the Dolores River.

Grant Smith admitted that he installed a deck two years ago on private land upriver from Dolores, and was in the process of adding a gazebo and roof structure. He claimed he was unaware it was in violation of a county land-use code prohibiting structures within 100 feet of the riverbank.

"My understanding was that the setback was for homes with a permanent foundation and septic and plumbing, and this doesn't have those," Smith said, adding that "there are a lot of homes and structures that go right up to the river through there."

But after an hour-long, and at times tense, exchange with commissioners Keenan Ertel, Larry Don Suckla and planning director Susan Carver, construction was ordered to cease pending a decision by the full board. Commissioner Steve Chappell was not present for the meeting.

"I feel that you either did not know or ignored the setback requirement and went ahead and built the deck," said commissioner Ertel. "You got away with it for two years, and now you want a roof and got caught. You have put us in a very difficult position."

Neighbors reported the illegal structure, prompting Carver to send a notice of violation and a cease-and-desist order to Smith.

Carver said the 100-foot setback rule was established in 2004 and was part of a series of land-use rules put in place after two years of well-attended public hearings. The regulation is designed to protect the river and the public, she said, and is a common restriction in communities with waterways.


"One of the reasons is because flood waters can cause the structure to break free and the debris threatens downstream bridges, property and people," Carver said. "It is pollution risk to the watershed."

Carver emphasized that the land use code needs to be enforced fairly and evenly, and allowing exemptions weakens the law while setting a bad precedent.

"There are many landowners since 2004 who have been denied permission to build within the 100-foot setback on the Dolores, and they adjusted their plans, so why should you get an exception?" she said. "We're not singling you out; it applies to everyone."

Landowner Smith and builder Kelen Lovett at first insisted that deck location was not out of compliance because it did not require a high-impact permit and was not industrial or a home with septic. But they seemed to relent as the discussion went on and the setback rules were explained.

"You're trying to compare apples to oranges. It is not a high impact permit; it is a setback plain and simple, for any structure," Ertel said.

Lovett admitted that in retrospect it was a mistake to build the structure in violation of the setback rule. He said the land-use code is not very clear, and he felt the setback targeted commercial or industrial uses, not decks.

"We're not begging for forgiveness because we made a mistake here," he said. "In our defense, we did not know about this."

Carver said it is the responsibility of the landowner to know and follow land use regulations.

"Ignorance of the law is no excuse," Ertel said. "I'm not buying it."


But Suckla was more leery of the setback requirement and suggested it be re-evaluated. Suckla recommended that the deck structure be allowed to remain, and that Smith be fined $500 for the violation.

"I believe the intent of the law was more to avoid septic being close to the river," he said. "I feel the rule needs to be looked at again."

Ertel did not support Suckla's proposed solution.

"I disagree with Larry Don. I'm not certain (the regulation) is the best thing, but it is what we have got. I cannot in good conscious deny a law on the books since 2004," Ertel said. "The issue of the setback law may be revisited, but that is a whole other process."

During the meeting, Smith continued to insist that other structures violated the regulation, and said he did not want to move his.

Carver responded that other homes and decks within the 100 foot buffer were either installed before the 2004 regulation or are also in violation of the land use code.

"It doesn't matter if we didn't know about it; once we become aware, then we are obligated to act on it," she said.

One of Smith's neighbors, Wayne King, commented that regulations can backfire without adequate enforcement or monitoring.

"Homes that are on the river are much more valuable, so there is incentive to build the home anyway and pay the fine," King said. "The increased value far outweighs the fine."

Carver noted that in the past, violators moved the structure or were heavily fined. It was reported that previously a home owner was fined $6,000 for building a home within 100-foot setback rule on the Dolores River.

The issue was tabled until it could be heard by the entire board. The discussion will continue at the June 24 county commission meeting at 3 p.m.