A Dollar General lawsuit may have broader implications for Montezuma County policy after a judge poked holes in a 85-page land-use code, saying it has weaknesses and is riddled with contradictions.
The county ultimately won the yearslong legal battle at the district-court level after a July 8 ruling from 22nd Judicial District Court Judge Todd Plewe. Rather than treating it as the end of the road, commissioners are now opening the door to potentially revisit parts of the code.
The case stems from Leaf Properties’ aim to build a Dollar General at the corner of Colorado Highway 145 and County Road N between Cortez and Dolores.
Commissioners twice denied the high-impact permit after finding it exceeded certain thresholds.
One finding asserted the development could generate traffic to the excess – some 339 cars coming and going daily – which would result in an increase too dangerous for the intersection and rural neighbors surrounding it. Plewe concluded this “stood alone” as sufficient basis for denial in the July 8 order.
Plewe ultimately upheld the commissioners’ second application denial, concluding it was supported by competent evidence, Leaf Properties was afforded due process and the land-use code was properly applied. Leaf Properties attorney Andrew Peters said in an email Friday his client intends to mount an appeal to the higher court.
While Plewe upheld the code, he had criticisms for it.
He wrote: “The Montezuma County Land-Use Code is contradictory in places and contains inconsistencies. Arguably, the code is poor public policy; however, the court must set aside the temptation to decide this case on issues other than facts and the law.”
County attorney Stephen Tarnowski told the commissioners Tuesday in an update they can consider the ruling “the best possible outcome.” He said the board “prevailed on all the arguments made,” however, he felt the feedback on needing improvement was important and should be taken seriously.
“It would be a worthwhile endeavor to look at the code with a hard look and say ‘Does this need to be fixed or overhauled,’” Tarnowski said Tuesday.
Commissioner Kent Lindsay asked if the court ruling offered any specifics.
Tarnowski then described the “uses-by-right” dispute as one example, which surfaced during court.
Leaf Properties argued under county code the dollar store should automatically forgo the high-impact permit process because its retail-sales use in a commercial-zoning district equaled use-by-right.
Tarnowksi suggested the code could spell out the concept more clearly to avoid future ambiguities.
“Our argument was use-by-right ultimately isn’t defined anywhere in state law, and it's also not defined specifically in our land-use code,” Tarnowski said.
He explained the argument was that use-by-right is allowable only if a proposal doesn’t exceed any of the 33 threshold standards, which among many things deal with lighting or traffic and were codified by the original drafters to uphold Montezuma County’s “rural character.”
“The term use-by-right in the code is clumsy,” Plewe wrote, “but it does not invalidate the code or the high-impact process.”
The commissioners agreed in three-weeks time they would put an item on the workshop agenda for longer discussion. Either partially editing it or an overhaul, Tarnowski said the process will be slow.
The city of Cortez fully updated its land-use code during 2023-2025, which revamped policies first written in 1996. The purpose provided for the update in council documents was due to population growth, a need for a simpler review process, and ensuring standards supported housing needs.
City documents stated the former code contained errors and inconsistencies.
The rewrite held multiple public sessions and the final document contained 270 pages.
Tarnowksi suggested Tuesday other options could be the incremental approach – similar to how language was updated to address renewable energy recently – or the county could look at Colorado Department of Local Affairs templates that are geared toward smaller counties.
awatson@the-journal.com
