TDRs headed to court

Suit filed against county for dropping program

A lawsuit has been filed against the Montezuma County commission for eliminating the Transferable Development Rights program within the Dolores River Valley.

The plaintiffs have organized under a new nonprofit group called Protect Montezuma County Water, represented by attorney Erin Johnson.

They are seeking a court order to nullify the July 7 decision by the county commission that canceled the TDR program in Chapter 8 of the Montezuma County land use code.

“We believe the TDR program should be re-instated,” Johnson said Monday morning. “The county commission acted in excess of their authority and made the decision to eliminate TDRs in an arbitrary and capricious manner under Rule 106.”

The suit, filed Friday, Aug. 1, in 22nd Judicial District Court, also claims removing the TDR program is a an illegal property takings in violation of the U.S. Constitution.

“People platted TDRs, they have value and the commission took them away on a whim saying they were confused by the program,” Johnson said. “Landowners were relying on the program, and people were interested in purchasing TDRs.”

The county is required to submit a certified record of proceedings of their decision, after which a time table of court dates is set.

TDRs were established in 2003 for the Dolores River Valley. The form of market-based zoning put a development cap within the county’s portion of the valley. Building rights could be bought and sold among property owners, but none were ever recorded to be sold. Proponents of TDRs said the development cap was critical for protecting water quality into the future. Opponents said it unfairly restricted property rights and that TDRs were difficult to purchase.

In the 2-1, commissioners Steve Chappell and Larry Don Suckla agreed to end the TDR program, and commissioner Keenan Ertel voted against its elimination.

The lawsuit was filed under Rule 106, which permits review of a government body actions if plaintiffs believe they have exceeded jurisdiction or abused their discretion, according to court records.