By Derek Kutzer | Staff Writer
At a Pagosa Springs Town Council work session on Aug. 24, staff from the Community Development Department recommended that the proposed Put Hill Overlay District be removed from consideration as part of the updated Land Use and Development Code (LUDC).
This recommendation comes in the wake of strong opposition to the proposed regulations by property owners who voiced their concerns about the proposed new overlay district at the last Pagosa Springs Planning Commission meeting.
Property owners argued that the town’s effort to preserve mature ponderosa pine trees along the U.S. 160 highway corridor — which was the main intent of the new code — would amount to an infringement on their private property rights.
Owners expressed worry that the new regulations would amount to a “taking” of property without proper compensation because the new code would limit what a property owner can and cannot do on certain sections of their property.
Some also expressed concern that the new code would shrink the amount of developable land and would, therefore, devalue the properties along the corridor.
Faced with such pushback, both Community Development Director James Dickhoff and Senior Planner Karl Onsager suggested that continuing to consider the new overlay district as part of the larger process of amending the LUDC could stall and threaten the process.
Onsager said, “This seems like something that would derail and put risk on the entire adoption process,” with Dickhoff adding that the town shouldn’t “hold up” the adoption of the amended LUDC “just for the Put Hill Overlay District.”
When Dickhoff and Onsager brought the issue before the council, they continued to push for taking the Put Hill Overlay out of the LUDC discussions and revisit it at a later date.
Council member Mat deGraaf stated he wondered if removing the new overlay district language would put the trees along the corridor at risk.
“Would we still have the language in the LUDC, without that Put Hill Overlay update, that will still allow for the preservation of the trees that we’re looking to hang on to?” he asked.
Dickhoff answered that, “to a certain degree,” the town can still refer to the language and vision previously adopted by the Comprehensive Plan of 2018.
The Comprehensive Plan was adopted through a community process with input from both private and public entities, and it sketches out a vision for guidelines on growth and development for the Pagosa Springs community.
The LUDC states that the Comprehensive Plan “shall serve as a guide for all future Council action concerning land use and development. Future land use and development may vary from the terms of the Comprehensive Plan only for good cause shown.”
Dickhoff said that within the LUDC and Comprehensive Plan, there are “sensitive-area protections in place for tree preservation” and that, in some cases, tree cutting is illegal without a permit, “so we don’t have clear-cutting going on.”
He added that while the new overlay district would help codify this language about tree preservation in a specific zone, he did not want the proposed new district to create a “hiccup” that could derail the LUDC amendment discussions.
But, he suggested, he did want the council to be aware that he had discussed the legality of the new code language with Town Attorney Bob Cole, saying that Cole found no merit in the argument presented by property owners that the new regulations would amount to a “taking” or “a restriction of the property to its whole development potential.”
“It’s not considered ‘a taking’ in our attorney’s view,” he said, reminding the council that the decision to keep or remove the Put Hill Overlay District would rest entirely with it.
He added that he just wanted the council to have all the information before making a decision on the matter, but that he didn’t want the issue “to hold up adoption” of the LUDC if the council thinks it’s too controversial at the moment.
Mayor Shari Pierce suggested that, after talking with property owners and both Dickhoff and Onsager, she thought “it would be a really great thing to not include this right now.”
“I mentioned to those property owners that perhaps once we get past this development code, then we could have a sit down conversation with them about what they envision up there and what their concerns are,” she said.
She added, “If we end up doing an overlay in the future, we can add that later. It doesn’t need to be now and it doesn’t need to hold up the land use code. We’ve been working on this a long time and I’d like to get it over the finish line.”
Dickhoff noted that his department could “rely on other provisions in the Comp Plan” to achieve some of the proposed district’s goals in this “sensitive area.”
Pierce added that one of the goals of the LUDC update is “simplifying” the language in the code, saying that the new overlay district is unnecessary right now, because “I don’t believe it simplifies the code.”
She said that the overlay district “could still become part of” the LUDC at a later date.
Council member Madeline Bergon suggested that the language in the new overlay district “didn’t just come out of left field.”
It’s in the Comprehensive Plan, which “was a very involved public process a few years ago,” she said.
She added that she was “comfortable not including” the Put Hill Overlay “in this iteration of the LUDC,” but that she wanted to say that “I’m sorry [to staff] that any of the feedback that you guys received from public comment was less than courteous.”
Council member Brooks Lindner suggested that the overlay district “was a really good effort to preserve something that makes Pagosa unique and beautiful, so I wish that we were going through with it, but I understand ... the desire to get it done and not have any further delays.”
Bergon added that the proposed overlay district could serve as a “foundation” to “go back to those property owners and say, ‘Hey, where can we compromise?’ ... Let’s continue those discussions with those property owners and not just let this go belly-up.”
Pierce asked, “So, we are good with holding off on this for now?”
A binding decision cannot be made at a work session, but there seemed to be general agreement to table the Put Hill Overlay as part of the current LUDC update process.
Onsager said, “Thank you for that direction, council.”
Staff continues to synthesize public comment and will prepare the LUDC document for final formatting, revisions and legal review, with a public hearing tentatively planned for the Sept. 26 planning commission meeting.
A first reading is scheduled to come before town council at its Oct. 19 meeting, according to a staff presentation at the work session meeting.
derek@pagosasun.com
