A lawsuit filed against the Montezuma County commissioners for canceling the transferable development rights (TDR) section of the land-use code has been dropped.
Plaintiffs Protect Montezuma Water, Greg Kemp, and Monica Murphy filed papers on Dec. 8 to end the suit.
"I'm heartbroken about it," Kemp said on Friday. "I feel the county commission took away private property from landowners in the Dolores River Valley."
Neither Kemp nor Rico attorney Erin Johnson would say why the suit was dropped.
"Protect Montezuma Water had heartfelt objections and did the best they could," Johnson said.
The suit claimed that by extinguishing the TDRs, the county committed an unconstitutional "property taking" for those who had already filed for them.
"TDRs were private property that had real monetary value," Kemp said. "They were a way to sell development rights while keeping a farm or ranch in operation."
But after a yearlong review and several public meetings, on July 7, commissioners voted 2-1 to end the program.
"Conservation easements accomplish the same thing and are voluntary," commissioner Steve Chappell said at the time.
TDRs were established by a different set of commissioners in 2003 after a 20-month, community-based collaboration.
The market-based zoning plan put a cap on development, and was seen as long-term protection for a water source relied on by 27,000 people.
A set number of building rights called TDRs could be bought and sold among property owners. One 10-acre parcel equaled one TDR, creating a development cap of 625 new homes in the valley. But none were ever recorded to be sold.
Since it was canceled, the valley's land-use regulations reverted back to the accessory dwelling allowance for each 10-acre parcel, potentially doubling density.
Opponents said the plan unfairly restricted private property rights and that TDRs were difficult to purchase, or were overly expensive.
FLC students offer analysis
Fort Lewis College students in the Environmental Studies department analyzed the case, and gave a campus presentation Wednesday, Dec. 10.
'In our interviews of landowners, we found varying awareness of TDRs, and confusion on how they worked,' said student Madison Rafferty.
The students also took 30 water samples from 10 sites on the Dolores River at Dolores and upstream. Tests for the e-coli bacteria were well within acceptable standards.
Student Cale Zimmerman compared the effect of TDRs to conservation easements.
'TDRs don't stop development, they just control density,' he said.
The students studied abandoned Rico mines and said efforts to mitigate heavy-metal pollution there is key for protecting the Dolores. The primary contaminates of concern are elevated levels of cadmium and zinc, a health hazard for humans and wildlife.
The Cortez Journal
