EDITORIAL: Spot Zoning… For a Better Future? Part One

The Town of Pagosa Springs will assemble its Town Council this evening, Tuesday March 7 at 5pm, in the Council Chambers upstairs in Town Hall, to discuss a number of agenda items, including the First Reading of Ordinance 854, “Amending the Official Zoning Map Regarding Property Known as the Enclave at Aspen Village, Except Phase One.”

The ordinance vote — if one is indeed taken on the matter — will not, by itself, create a major change in the way our community grows over the next decade. The proposed zoning change affects only about 3 acres of property, out of the 867,263 acres that constitute Archuleta County.

If the change were approved by the Council, the developers would be able to build more dwelling units on those three acres than they’d previously been allowed, under a 2005 agreement.

Two issues seem to be especially relevant to the propriety of this ordinance. One issue concerns the legality of “spot zoning.” The other issue has to do with what many of us perceive as an ongoing — and worsening — shortage of affordable housing.

Included in the mix, we might also consider, in passing, the influence exerted by a large multi-national corporation like Wal-Mart Stores, Inc. … considering that the three acres in question are located “behind” the community’s new Walmart store and appears to be at least partially owned by members of the Walton family.

According to the County Assessor’s website, the address of the developer and property owner — Aspen Village Ventures LLC — is “PO Box 1860, Bentonville, Arkansas.”


A quick Internet search suggests that PO Box 1860, Bentonville, Arkansas is also the address of S. Robson Walton. Mr. Walton has served as chairman of the board for Walmart Stores Inc. and is, according to Forbes.com, the 18th richest person in the world.

The person who met with the Town Planning Commission last month, and who received the unanimous blessing of that commission for the requested zoning change — with conditions attached — was apparently not Mr. Walton, however. (I did not attend that Planning Commission meeting, so I am reporting, second-hand, what I’ve heard about that decision.)

From the Town Council packet:

On February 2, 2017, the Town Planning Department received a completed application requesting the re-zoning of the Enclave Townhomes Development from residential medium density zoning to residential high density zoning (R-22).

Town Council approved a separate ordinance last month, Ordinance 853, which converted all the “R-18” districts within the Town boundaries to “R-22” districts, meaning that the allowable density of dwellings increased from “18 units per acres” to “22 units per acre.”

But technically, the Enclave Townhomes Development was never zoned “R-18” or even “R-12”. Rather, the development applied for and received approval as a “Planned Unit Development” (PUD) on November 1, 2005. This legal agreement allowed 12 dwelling units per acre, as an overlay in the originally zoned D-4 West Corridor Business District.

The Enclave Townhomes, located in Aspen Village. Daily Post archive photo.

The entire Enclave site includes about 4 acres, with the original PUD plan specifying the construction of 48 dwelling units. Phase One of the plan — two buildings, each containing 5 townhomes, for a total of 10 dwellings — was completed prior to the slow, steady deflation of the Pagosa housing bubble that began in about 2006.

The developers also installed all underground infrastructure for the entire 4-acre site, to accommodate full build-out. All completed portions of the development were constructed in compliance with the PUD, according to Town documents. Reportedly, the ten units were sold at discount prices, during the recent economic downturn.

The plan originally proposed 38 more dwelling units on the remaining 3 acres. The developer is now seeking the zoning change to allow 55 units to be built, using the same (already installed) infrastructure.

Presumably, such a density increase would allow the developer to make a higher profit.

The flip-side to that argument is that Pagosa desperately needs additional housing, especially “affordable housing.” Or so it seems, based on anecdotal evidence.

And speaking of affordable housing… I find it slightly odd that the Planning Commission recommendation, approving of the Enclave zoning change, included a specification that no multi-family apartments would be allowed on the three acres. This is odd, because the very purpose of the new “R-22” zoning district change was to encourage a variety of housing types. From the Town’s definition for R-22 districts:

TOWN RESIDENTIAL – HIGH DENSITY (R-22 pursuant to Ordinance 853): The R-18 district allows the broadest range of residential types, including single-family residences, duplexes, patio homes, and apartments. The district is intended for locations closer to commercial centers and near downtown, and may serve as a transition between commercial centers and lower-density residential neighborhoods.

The Enclave seems to fit nicely into this “transitional” definition, considering that it sits in the very shadow of the largest retail store in Archuleta County: the new Walmart store.

But I expect the public comments at tonight’s meeting might focus on the impact that a higher density allowance could have on the neighboring residential properties — the ten existing Enclave townhomes and the neighboring “Cottages” single-family homes — in terms of reduced (or enhanced?) property values.

It’s also clear that the proposed zoning change will affect only 3 acres of property, in a much larger development — Aspen Village — that once had a definite (and legally approved) development plan. This raises the question of “spot zoning,” a practice that the courts have judged to be illegal under Colorado law.

The prohibitions related to spot zoning have a long and illustrious career, dating back to at least 1941. From the court ruling in the case of Clark v. City of Boulder:

In Leahy v. Inspector of Bldgs. (1941), 308 Mass. 128, 31 N.E.2d 436, 439, the court said in relation to a spot zoning ordinance:

“A city council is empowered to amend a zoning ordinance [if] the character and use of a district or the surrounding territory have become so changed since the original ordinance was enacted that the public health, morals, safety and welfare would be promoted if a change were made in the boundaries or in the regulations prescribed for certain districts; but mere economic gain to the owner of a comparatively small area is not a sufficient cause to involve an exercise of this amending power for the benefit of such owner.”

So… one question the Council will presumably want to address at tonight’s meeting:

Does this zoning change align with the Town’s Comprehensive Plan? Or does it merely allow one particular developer of “a comparatively small area” to experience “economic gain”?

Read Part Two, tomorrow…


Bill Hudson

Bill Hudson founded the Pagosa Daily Post in 2004 in hopes of making a decent living writing about local politics. The hope remains.