The Archuleta County Board County Commissioners (BoCC), acting as the Board of Adjustments (BOA), voted unanimously to deny a general variance request that would have allowed a front and side setback encroachment of a proposed detached garage of 15 feet.
The request was made by Valarie Groves, whose property is approximately one acre and located in the Rio Blanco Valley subdivision, according to the meeting’s agenda.
Planning Manager Owen O’Dell presented the matter, explaining the request was brought to the BOA after the adjacent neighbor denied consent with the setback encroachment in the administrative variance process.
O’Dell also explained the Archuleta County Land Use Regulations (LUR) provide variances from the “strict application” of the regulations.
Documents attached to the meeting’s agenda prepared by O’Dell go on to state that the BOA may grant a variance if “the strict application of the Regulations would result in peculiar and exceptional practical difficulties, or exceptional and undue hardship.”
It adds that variances are “essentially, a grant of authority for a property owner to use a property in a manner that deviates” from the LUR.
O’Dell went on to explain that the Groves property is zoned as Agricultural Estates (AE), which has a standard front and side setback of 25 feet. With the variance request being for 15 feet, that would leave 10 feet between the proposed detached garage structure and the property line.
O’Dell explains in his report that the BOA may grant a variance if all the standards found in LUR Section 2.4.3.2(1) are met, which includes five standards. Those standards include things such as peculiar or exceptional practical difficulties, the circumstances creating the hardship being no fault of the appellant, property with exceptional topography, that it does not diminish the value or enjoyment of adjacent properties, and will not be directly contrary to the intent and purpose of the LUR or community plan.
O’Dell’s report indicates that county staff believes each standard was met in order to grant a variance and includes a recommended motion of approval for the variance.
In reference to the first standard that the strict application of the LUR will cause exceptional practical difficulties, O’Dell explains in his report that staff “recommends the BOA consider the mismatch between the platted subdivision parcel sizes of Rio Blanco Valley subdivision and the expectations of the Agricultural Estate (AE) zoning district as an ‘exceptional practical difficulty.’”
The report also explains that the subdivision was originally platted in 1967 with parcels ranging from one to three acres in size, though the parcels were designated as AE in 2006 when the county first adopted property zoning, with that zoning district having a lot size of five to 35 acres.
The report goes on to explain of the 25-foot setback for AE-zoned properties, “When, as in this case, that setback is applied to a parcel much smaller than the intended minimum size of five to thirty-five (5-35) acres, the result is to significantly and unnecessarily reduce the usable area of the parcel. Specifically in this case, the twenty-five-foot setback consumes approximately forty-one (41%) percent of the parcel.”
In regard to the standard of the property having exceptional topography, O’Dell’s report explains, “This property does possess exceptional topography due to the FEMA Floodplain boundary.”
The report goes on to explain that the appellant is attempting to build outside of the floodplain for more “security for their structure.”
Commissioner Warren Brown was the first to ask questions about the variance request, asking O’Dell if he, or others, have considered the question of if the project could be done without granting the variance request.
Brown asked if the variance is “critical and necessary” to the development “or if it just makes it easier,” asking for clarification on if the project can be done without the variance.
“I think it’s certainly possible,” O’Dell said, explaining that he tells people they can build in “any area of the county, whether that’s in the floodplain or along extreme slopes.”
O’Dell acknowledged that “obviously that’s gonna add more cost and difficulty to the development,” also noting that the owner moving the building outside the floodplain is a “reasonable request” for the variance.
In response to a question from Commissioner John Ranson, O’Dell explained the floodplain study was last done in 2009 and, according to the county’s regulations, “we have to abide by what the flood study is currently accepted by the Board of County Commissioners.”
He indicated that a new floodplain study is currently being done on the lower Blanco River.
“So, I imagine these boundaries may fluctuate a little bit,” he added.
Ranson also inquired as to when the property was last purchased, which O’Dell indicated was 2023, by the Groves family.
“And were they aware of the setbacks at that time?” Ranson asked.
“I imagine they were, yes,” O’Dell replied.
Planning Director Pamela Flowers added, “They were also aware that they could apply for a variance for such.”
Commissioner Veronica Medina then opened the matter for public comment in, with a total of five comments made, all opposing the variance request.
One commenter who stated they live “directly across the river” from the Groves’ property expressed their opposition for the variance, saying, “I’m very uncomfortable with the proposed variance.”
He explained that since the river restoration project was completed and the river “was narrowed,” he has watched the river channel move and has lost a “substantial amount of land, as has this property with the proposed variance,” noting this is “one of several reasons” the county has a 25-foot setback requirement for buildings.
He also expressed concerns with the survey map representing the property to be inaccurate, noting the river surrounds the property on two sides or more, explaining that every year natural erosion occurs, “cutting into this property.”
He added that “a 15-foot setback will eventually be in the river.”
He also mentioned that the community plan discourages lots less than five acres and claimed that the developer of the property in question is planning to build and operate a short-term rental (STR).
“It’s not a residence, but rather a commercial project,” he added.
The commenter went on to state that the history and community plan of the Lower Blanco is why houses are currently “well separated,” going on to claim that “everyone in the Lower Blanco right now is watching the results of this decision, and there’s nothing particularly special about the property,” claiming that if the variance is given, a chain reaction might occur.
The next commenter explained she is the owner of the lot “right next door” to the Groves’ property and opposed the variance request, explaining that it would diminish her property’s value.
She explained that she has an organic farm with a greenhouse grow dome, and that a garage built in the proposed location would affect her ability to grow food.
“So, it’s very much affecting me to have that garage there,” she said, explaining that she hopes the plans could be changed to build the garage elsewhere.
She also explained that in 2009, FEMA changed the floodplain and the previous owner of the property went to the BOA for a variance at that time, which was denied.
“The current applicant knows about all of this,” she added. “They knew when they bought it that there was a problem with this property.”
Ranson then asked the current appellant if they were aware of the 2009 decision.
The Groves indicated they were not aware of the decision and the previous owner had plans to build on the property, but chose not do so because “his wife wasn’t interested.”
Another commenter explained that he is an experienced home builder and that his family has owned lots in the area since the 1960s.
He expressed concerns with getting a septic system permitted on the property.
Interim county attorney Lance Ingalls interjected, reminding the BOA of what its task is in determining if the variance should be approved.
“I thought I should take a minute to make sure the commissioners fully understand the task in front of you, and I base this on a question I was asked before this meeting started,” he said.
Ingalls explained that the task “is not at all to determine if you like this application, or you don’t like the application, but, rather you apply the application to approval criteria and determine if those criteria have been met.”
He explained the approval criteria was presented by staff “and that is your road map for evaluating this application,” explaining that if the commissioners find all of those approval criteria are met, “whether or not you like, you have duty to make those findings and approve the application. On other hand, if you find that one or more of the approval criteria are not met, you have the duty to deny this application.”
Ingalls encouraged the commissioners to include the approval criteria in their conversation.
He then explained that one of the commissioners asked prior to the meeting if they could ask the question of when the applicant purchased the property, stating “it could be relevant” to one of the approval criteria, potentially more.
“But just please focus on your criteria, because that is what you have adopted and that is what controls this application,” Ingalls said, also suggesting the public tailor its comments to the approval criteria, noting that is what the board is bound by. “That is where your responsibility lies and if you consider those then the result will be defensible no matter which way you go.”
Public comment resumed with another man opposing the variance request, raising more concerns about getting a proper septic system installed on the property.
The last public comment heard on the matter was from another individual with property in the area who stated, “I am totally opposed to the granting of this variance,” explaining that it seems to be an encroachment on nearby properties.
Medina then opened the floor for the applicants to make a statement.
Mark Groves, one of the applicants, explained that they have a permit for a septic system to be installed, noting they have not decided if the building would be a long-term or mid-term rental.
“We do not have another short-term rental,” he said, noting they have “pulled” that request, adding that some of the pieces of information shared are not “fully accurate.”
He explained they are looking to develop their property and, “we’re not looking to do anything that would in any way detriment anyone.”
Brown asked the applicants if the request is because they would not be able to continue with their proposed plans “on the lot as it is right now, or … does this make it easier?”
“This gets us out of the floodplain,” Valarie Groves said, explaining that by moving the garage to the proposed area, the house would be pulled out of the floodplain, keeping building costs down while making it easier to get insurance.
Brown restated that the “intent” of his question was if this request is a convenience or a necessity.
“That’s the point that I’m trying to get answered, just to be very clear and upfront with you,” Brown said.
Mark Groves explained that, “technically, yes” they could build without the variance being granted, with higher costs and more risks associated.
Ranson explained that he was part of the BoCC that made a decision on the property in 2009, asking Ingalls if that is potentially a conflict of interest.
“That’s not a conflict of interest ... as that term is defined in law,” Ingalls said, explaining that a conflict of interest refers to having a personal financial stake in the matter.
He went on to explain that there is no conflict of interest if a commissioner has heard the matter in a similar situation in the past, so long as they can make a decision based on what was provided during the current hearing.
“If your past decision has resulted in your predetermination and you are unable to change your mind, despite the facts that are submitted today, then you might have an issue, but it’s not a conflict of interest,” he said, explaining that would be a different due process issue.
Ingalls added that there is “no legal impediment” for Ranson to be part of the decision if he can make a decision based on the record of the May 20 meeting.
“Obviously I didn’t predetermine,” Ranson said, explaining he did not realize he had been involved in a decision on this property until it was stated during the May 20 meeting.
Medina then opened the floor for a motion, in which Brown referenced the Colorado Revised Statute 30-28-118, noting that based on his interpretation, every one of the approval criteria were met except for one.
Brown then noted that O’Dell and the applicants stated the project can be done without the approval of the variance, and moved not to approve the variance request.
Before seconding the motion, Ranson stated, “I do think I can make a fair decision based on one of these criteria,” noting he believes this could diminish the value of nearby properties.
He added, “I think that it sets a precedent that would not be a good precedent for the neighborhood.”
Medina commented, “While I agree with the commissioners’ statements, from what I’m hearing from the county attorney, it sounds like all the conditions have been met and our job is to base our decision on the conditions.”
Medina reiterated that she agrees with her fellow commissioners, “but just from what the attorney said, it sounds like we’ve met all the conditions and that should be approved as such.”
Ingalls explained that he is not telling the commissioners if the approval criteria are met or not, but that if the commissioners find that all the criteria have been met, then the board has the burden to approve the application.
Brown explained that his interpretations of the criteria are based on “what I believe or whether I like or don’t like or anything extenuating,” commenting that he appreciates O’Dell’s view on the matter, “but it seems to me that this particular requirement … what I heard in testimony was that this was as much a matter of convenience and cost with trying to avoid some risk, not necessarily exceptional and undue hardship.”
Brown noted that is where he is “questioning” if all of the criteria have been met.
Flowers provided a comment that the “staff’s feelings on this matter” is that the definition of exceptional “simply means unusual.”
She mentioned that this property, compared to all other properties that have been brought forward to the BOA for a variance, “has more intrusion by floodplaining than any that I have brought forward.”
Flowers added, “We do believe that this mismatch between the size of the setback is fairly important and is exceptional for all the properties that are in this zoning district, … so that is why we’ve determined that it is exceptional for them.”
Brown’s motion to deny the variance request was then unanimously approved.
clayton@pagosasun.com
