In a 2-1 vote, the Montezuma County commissioners denied a commercial housing development in a rural area, a decision that also exposed a contradiction in the land use code and zoning issues.

Developer Cole Clark proposed three, fourplexes on a portion of a 35-acre parcel at the corner of County Roads G and 25 south of Cortez.

Clark worked with county planners to utilize the planned-unit development process in the land use code.

The option allows for denser housing projects beyond the standard of one dwelling and accessory home on a minimum of 3 acres.

The proposed PUD would carve out a surveyed, 7-acre commercial envelope for the three fourplexes, totaling 12 apartments. Clark said the one- to three-bedroom units would be affordably priced and help alleviate the housing shortage in the area. Access is off County Road G.

The project proposed change to zoning from Agricultural Residential 10-34 acre zone to Agricultural Residential 35-plus acres.

But more than a dozen residents and neighbors objected to the plan and spoke against it at two public hearings, Among other concerns, they said it would negatively impact the rural and agricultural character of the area and increase traffic.

In voting to deny the project, commissioner Kent Lindsay cited Section 1201 and 1201.2 in the land use code that sets threshold standards for all development.

It states in part that “one of the major objectives . . . is to protect the rural character of the County through the enactment of development regulations appropriate for rural areas.”

Planning department director Don Haley stated the project did comply with the land use code under the planned unit development option.

Commissioners Kent Lindsay and Gerald Koppenhafer voted to deny the project. Commissioner Jim Candelaria voted against the motion to deny the project.

Candelaria said that based on the land use code, planning department and planning commission, the project was in compliance with the code. However in October, the planning commission voted 3-2 to recommend the project be denied.

“It did comply with the land use code, so I’m curious why the denial process, what was the criteria?” Candelaria asked.

Haley said the planning commissioners had a lengthy discussion on the project, and the majority felt it did not fit in the area.

“It is the subjective part of the land use code on whether they feel it fits or does not fit in the area,” he said. “It meets all the objective parts of the land use code.”

Candelaria responded: “We have multifamily in the area, we have commercial across the street, my question is how does it not fit in the area of what’s already there?”

Fourteen residents spoke against the project during an Dec. 20 public hearing in front of the Montezuma County Commissioners. No one spoke in favor.

Jim Dickinson lives across the street and said the commercial housing project did not fit with the rural neighborhood, which is why he bought land there.

Emiko South agreed the area was not compatible for apartments, and that allowing it would “set precedent for high-occupancy dwellings anywhere in the county.”

Mike Lynch said people bought property in the area to live in a rural area and the PUD process was “an unwanted loophole that impacts landowners in a way they never imagined.”

Jody Lamb worried apartments in the area would negatively impact property values and would increase traffic on County Road 25 used to access town.

The PUD process creates a commercial envelope with a legal description within agricultural zones, Haley said, and you can’t develop outside the envelope.

It is a tool to avoid entire 35-acre areas from becoming zoned commercial, he said, which the county has been against in order to preserve the open space, agriculture character of the county.

During discussion of the proposal, Montezuma County attorney Ian MacLaren addressed aspects of commercial and agricultural zoning and PUDs.

“It certainly creates an interesting question. The PUD regulations do allow for a commercial envelope, but then on the flip side there is the zoning out there,” he said. “Ultimately what is happening here, is this property is being used for commercial uses in a zone that is rural in character and agricultural in nature by zoning and use. It is something to consider.”

The proposed commercial PUD for the fourplexes is within an agricultural-residential zone.

According to the land use code, areas specifically zoned commercial are for uses that are predominantly commercial. Uses by right under the commercial zone definition are group homes, long-term care facilities and multifamily dwellings.

“In this situation, what Mr. Clark is proposing is a multifamily dwelling, I think it is commercial in nature,” MacLaren said.

There has been a history in the county of not wanting to zone 35 acres as commercial, and using the PUD to create a smaller commercial envelope, he said. If there is a commercial project in an agricultural zone, it may be appropriate for the developer to apply to have it rezoned commercial.

When the PUD process is used to create small commercial envelopes in agricultural areas, it could set a “precedent for spot zoning,” and runs the risk of the PUD process being used to potentially “circumvent the zoning process,” MacLaren said.

“That is my concern,” said Commissioner Gerald Koppenhafer. “If zoning means anything in this county we have to follow, I don’t think it has been followed like it should be.”

He suggested the commission and planning department review the land use code to make adjustments and bring the changes to a public hearing.

If a land use needs to changed to commercial zone, that aspect needs to be determined ahead of a development proposal is applied for, Koppenhafer said.

Changes are needed “so we have better control of situations like this,” he said.

Candelaria emphasized that the project did meet the land use code, and noted there are other commercial uses in the area, including a retirement home and businesses along the highway to the west. An existing subdivision is also nearby.

In making a motion to deny the project, Commissioner Lindsay noted that the proposal was recommended for denial by planning and zoning after a review and public hearing. He said the area is mostly rural residential and agricultural.

jmimiaga@the-journal.com