Opponents of Amendment Say It Will Take Power Away From Landowners

OURAY – After hearing from over 15 county residents who were mostly in opposition to a proposed amendment to the county’s Land Use Code, the Ouray County Commissioners tabled the discussion to a Nov. 30 hearing in order to allow both sides more time to process the controversial issue. If passed, the amendment Section 6.12 of the code would take away a two-thirds majority power from Planned Unit Development or subdivision landowners to approve or deny specific changes to their PUD.

Section 6.12 of the LUC currently states that any amendment or alteration to a final PUD or subdivision plat shall require the approval of the county commissioners and the additional approval of two-thirds of all owners within that PUD or subdivision, including approval from owners who abut the property or reside across the street. Ouray County is proposing to amend Section 6.12 in a way that would take away the landowners’ two-thirds vote in a PUD amendment.

According to County Attorney Mary Deganhart, the draft of the proposed amendment will still give land owners an opportunity to comment on an LUC amendment, but they no longer have a veto power.

“Regardless of what the property owners say, either they overwhelmingly like it or don’t like it [a specific PUD amendment], it would still go to the board for review,” Deganhart said at Monday’s hearing inside the courtroom at the Ouray County Courthouse. Deganhart said both the Ouray County Planning Commission and the commissioners would have to consider the PUD amendment, determine specific findings, and consider the issues addressed by surrounding landowners. She said the commissioners would have to render a unanimous decision on any PUD amendment (the wording of this regulation is being further drafted for the next hearing).

Deganhart said, after researching cases and speaking with other counties, it is her legal opinion that giving a two-thirds veto power to homeowners’ associations in PUDs and subdivisions is an illegal delegation of power. As an example, she noted that Teller County lost a lawsuit on an approval that required endorsement from neighbors, and Route County had a similar provision in its historic zone that was subsequently deleted after an informal challenge. She also said that a legislative body like the county board of commissioners may only delegate its powers if it provides sufficient standards for those powers.

“If the board is going to give those away, at a minimum there needs to be specific guidance and standards for a body to undertake those duties,” Deganhart said. “In this instance, it simply isn’t happening.”

As it’s written now, Deganhart said she believes it is a delegation of power that “wouldn’t withstand a challenge if it were to happen.”

Of the 17 or so county residents that spoke at Monday’s hearing, only two were in favor of the amendment to Section 6.12. Many of those who spoke in opposition called it another power shift from the homeowners who live in a PUD to the county commissioners.
“To totally eliminate the property owner approval rights after all these years is drastically changing the rules in the middle of the game and undermining the integrity of the county government,” Log Hill Village resident Claudia Wolff said. “Sadly, your planned power shift will have a negative impact on many and a positive impact on a very few…If you must go through with your proposed power shift, then we hope that there will be enough safeguards in the revised Section 6.12 to give property owners at least as much protection as they previously had under the old rules.”

Resident Sheelagh Williams said she believes the current code has flaws and that she is in favor of the proposed LUC amendment. She added that when homeowner associations have votes on a specific PUD amendment, absent votes are often counted in the affirmative.

“A non response is counted as a ‘yes’,” Williams said. “That is a major problem. The current code has some serious flaws in it.”

For resident Randy Parker, he would like to see what cases and research Deganhart looked at to form her opinion.

“I have been unable to adequately view the driving forces for change and the legal opinion that the Land Use Code is somehow not legal,” Parker said. “I do not believe that this can or should apply to an opinion. The two cases she relied on, I have no idea if the facts match what we are talking about.”

With Deganhart consenting to put her research up on the county’s website within the next couple of weeks, the commissioners agreed to keep public comment open and table the hearing until Nov. 30. The hearing is tentatively scheduled for 2 p.m. at the Ouray County 4-H Event Center in Ridgway.

“I would like as much information out there so the [public] can give informed input if we are keeping the public input part of it open,” Meinert said as the hearing ended.