2020 August 21
Below are my comments on the Delta County Land Use Code – draft 2. This is just a partial review as the document is long and the time allowed to review it, insufficient.
OVERVIEW
The land use code design is seriously flawed at the most basic level. Any properly designed zoning plan includes the A, B, C’s of zoning categories. They would necessarily include residential (R), commercial (C), and industrial (I), and are paired with a number to reflect a level of impact.
The proposed plan has none of this. Instead, a contrived scheme has been generated that basically zones everything as agriculture, based on an irrelevant and often inaccurate lot size category. Little consideration has been taken concerning compatibility, suitability, desirability or impact to the surroundings in the design and designation of the proposed zoning scheme. The various ag zones created act as a catch all for any activity that has been otherwise neglected in the plan and which are totally unrelated to agriculture.
Perhaps the most glaring example of this is the A5 zone, which clearly is used in the plan as a substitute for an R zone. With a 5-acre lot or less, agricultural activities are, at best, limited. And more realistically, not feasible at all. Numerous areas in the county are designated A5’s that are actually bona fide subdivisions with lots hardly capable of sustaining a home garden. Yet the proposed regulations permit a pig farm to be on an A5 zone.
The omission of these fundamental zoning categories in the plan is a fatal flaw in the most basic design sense.
SETBACKS
The setbacks established in the proposal for agricultural activities are woefully insufficient, unsupported by any studies establishing a consideration for health and safety, and are arbitrarily established based more on convenience for the operator than mitigation of the operation’s impact.
A setback of 150 feet from a 373-population swine operation mitigates NOTHING WHATSOEVER. Even ten times this proposed setback would be insufficient. The setback table recognizes these health and safety concerns by establishing a second setback standard for public schools which is significantly larger. This begs the question – Why do health concerns matter for a child at school, but not at their home? After all, the hours that child spends at their home is significantly more than those spent in school.
Public comments by the county repeatedly refer to these setbacks as “minimum” based on the use of Best Management Practices (BMPs) for a particular operation. But nowhere in this body of code is any of that defined. Therefore those statements, from a regulatory standpoint, are meaningless.
These setbacks are too insufficient to mitigate their impact across the board and in all categories. Further, they fail to take into consideration compatibility of the impacted surroundings.
RIGHT-TO-FARM REVISION
The Right-to-Farm State statute protects existing ag operations from encroaching development. It is a very reasonable, sensible, and fair law for all sides. It protects existing ag operations and puts newcomers on notice to be a good neighbor for the neighborhood they have joined.
The county is proposing an expansion of this statue to new agricultural operations encroaching into existing neighborhoods by providing impunity to impacts affecting that neighborhood. This is anything but reasonable, sensible and fair.
This revision takes the Right-to-Farm statute and turns it on its head – mutating it into a Right-to-Harm rule. There is nothing fair or neighborly about it.
Further, from a legal standpoint, issues on damage to adjacent surroundings based on takings as well as stripping the rights of a neighbor’s ability for due process make this something that should, and probably will, be legally challenged.
This is a horrible provision in the proposal. Combined with the inadequate setbacks proposed, it is bad policy on steroids.
REVIEW PROCESS
This project is many, many months late. Yet, when it was rolled out in the beginning of July, it was raced through public review with limited public exposure. A document of land code close to 200 pages long of technical and difficult language is being given less than a two-month review period that took two years to develop.
It was rolled out during a pandemic and presented while state Safer-At-Home orders were in place by commissioners failing to wear required masks at the presentation, further limiting the needed public participation.
This is the county’s first zoning plan — one that saw little public input during its development. Residents were not surveyed and asked how they felt their land should be zoned (although that was promised by county officials early on). The was no educational presentations on what zoning is and what it means. We were all just handed the results and asked to comment.
And repeatedly, we have been told that the county hears opinions from “all sides,” and yet, the only real response by the county has been totally one-sided. Concerns on UGA’s pretty much wiped the zone out around the City of Delta. Concerns about setbacks got a reformatting of the presentation and nothing more. This process has been anything but fair and balanced.
For such a big deal, I can’t think of a worse way to go about vetting something of such significance.
All-in-all, I believe this plan as it currently stands is arbitrary and capricious, overly ag-centric at the expense of all other use categories, and just plain bad policy. Residents deserve a lot more time to participate in this process in order to make the necessary improvements. The county has the moral and ethical responsibility to provide the time and energy to produce the best possible outcomes for every member of the community and not just a portion.
Bob Kalenak
Hotchkiss, CO