EDITORIAL: A House Subdivided Against Itself, Part One

And if a house be divided against itself, that house cannot stand.

— Book of Mark, Chapter 3

I believe the gospel author was talking about “divided opinions,” when he wrote about “a house divided.” A family — or a Board of County Commissioners, or a whole community — can easily have divided opinions. Often, we have divided opinions about how things ought to be divided. Or even, about whether they ought to be divided at all.

We witnessed a divided opinion about how things ought to be divided, at last week’s BOCC meeting.

We’re talking here about a certain type of division: namely, a subdivision… which is a noun, but also a verb referring to the legal processes that allows a landowner to increase the market value of land, by chopping it up into smaller pieces to be sold separately.

There’s an assumption, in many communities, that any form of subdivision is ultimately a good thing, because it provides additional opportunities for population growth. This assumption goes hand in hand with the belief that population growth is inherently beneficial to the entire community, no matter how it unfolds.

There’s also an assumption, in some communities, that anyone who owns a parcel of land has a God-given right to subdivide it and sell the smaller pieces — and turn a profit in the process.

Those two assumptions were not really questioned at the Tuesday, August 1 BOCC meeting. But opinions appeared to be divided on the question of holding a property owner to a promise made ten years ago.

Here in Colorado, we have a definite legal definition of the term “subdivision.” The owner of a very large parcel can divide his or her property into any number of parcels and sell them without significant government interference — so long as none of the new parcels created are smaller than 35 acres. But if any of the parcels is smaller than 35 acres, then government involvement and approval is typically required, and a whole series of state and local laws come into play, such as sanitation requirements and easement dedications and access requirements.

Lots of red tape. Typically.

In most cases, local and state regulations must be followed to the letter… but in certain cases… maybe some of them can be sidestepped?

On Tuesday, August 1, the Archuleta Board of County Commissioners took up a proposal from developer Jack Searle — that he be allowed to purchase a 16-acre piece of a 500-acre parcel currently owned by the Fairway Land Trust, without triggering a subdivision review or certain conditions contained in the vested rights agreement signed by the Fairway Land Trust in 2009.

The Levine family, operating as the Fairway Land Trust, owns about 496 acres located south of Reservoir Hill Park.  The lion’s share of the property is located outside the town limits, in the unincorporated county, and is thus subject to decisions by the BOCC.

Here’s a conceptual map of the Levines’ proposed full development, which has been ‘on hold’ since at least 2009.

In 2009, the Levine family signed a 10-year vested rights agreement with the County government that zoned the property as a Planned Unit Development — a PUD — and thus provided considerable flexibility for future development. The agreement also contained the following promise:

…Owner shall dedicate the easement for the public bicycle trail in the general locations indicated on the Concept Plan Map along Light Plant Road and Highway 84. Such dedications shall take place at the time of the first subdivision of land in such areas or within ten (10) years of the date of the Agreement, whichever is sooner. Owner shall not be obligated to construct the public bicycle trail and the trail may lie over utility easement areas.

We can see these bicycle trails indicated on the conceptual map, shown as dark green areas. For example:

The 2009 agreement appears to state that the Levine family will dedicate all of these bicycle trails simultaneously with any subdivision of the PUD property…

… and the sale of 16 acres to Jack Searle would appear to be a subdivision of the property. At least, it sure seems to be an act of “subdivision”…

…but the plat, that Mr. Searle is asking the BOCC to approve, contains the following language:

Fairway Land Trust hereby dedicates the San Juan River Public Trail easement, depicted on this plat, based upon the dedication requirement arising out of Resolution 2009-47, Development Agreement, Reservoir River Ranch. The Archuleta County Board of Commissioners hereby affirms that recordation of this plat does not trigger any other dedication requirements from the Development agreement, including trail easement, open space or bicycle trail easement requirements.

Translation: The Fairway Land Trust will dedicate only the short stretch of bicycle trail that runs through the 16-acre parcel that’s undergoing subdivision (without going through a legal subdivision process) but the Levines will not dedicate the rest of the bicycle trails as promised in the 2009 vested rights agreement. And furthermore, the BOCC agrees with that arrangement, even though it seems to violate the 2009 agreement.

As you might imagine, the BOCC was unsure whether they wanted to allow the Levine family to go back on their promise of a full trail dedication. When a government board cuts a special deal for a developer, it sometimes happens that the board expects something beneficial — to the whole community — in exchange. During the creation of the Fairway Land Trust vested rights agreement in 2009, the BOCC seemed to have extracted a promise of a community bike trail dedication, as one of the benefits to the whole community.

Do we want to hold the Levines to their end of the deal? Or… maybe the BOCC could negotiate some alternate benefits?

That was one of the questions lingering in the air on August 1. In fact, Commissioner Ronnie Maez came right out and asked representative Ryan Searle what benefit the larger community would see, if the BOCC allowed this process to move forward.

Mr. Searle’s response was simple and straightforward.  “We will develop the property.” An interesting response, and it harkens back to the comment I made earlier in this article: that some people believe any type of subdivision development is beneficial, no matter how and where it takes place.

But Section 4 of the Archuleta County Land Use Code suggests otherwise:

New subdivisions require review and evaluation so that they may be located properly with respect to their effects on surrounding properties and Archuleta County at large. New subdivisions may be permitted subject to such conditions and limitations as Archuleta County may prescribe…

The subdivision of property affects our community. That’s a fact. Not all of the effects are positive. So the BOCC has a responsibility to consider the effects… and the repercussions…

Read Part Two…

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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.