A lawsuit over whether a Dollar General store should be built just off of Highway 145 is moving forward.
A status conference has been set for March 19 in District Court in Montezuma County.
The Georgia-based corporation that owns Dollar General, Leaf Properties, has sued the county over its denial of a high-impact permit for the store, which applicant Douglas Kinsey wants to build on N Road between Cortez and Dolores.
The parties have been exchanging legal briefs.
In a reply in support of a motion for summary judgment filed Jan. 30, attorneys for Leaf Properties state that they are not simply seeking to have the denial of the application reviewed. Instead, they are seeking a broader decision about the validity of parts of the county’s land-use code.
The county commissioners have rejected the permit for the Dollar General store twice, both times on a 2 to 1 vote.
Those decisions followed public hearings before both the commissioners and the Planning and Zoning Commission at which dozens of people spoke in opposition to the proposal.
In a separate reply filed on Jan. 30, Leaf Properties said “the BOCC caved to the political pressure of a packed hearing room.”
Leaf Properties has maintained that the store is a “use by right” because it would be in a place that is already zoned commercial. The corporation’s attorneys argue that the high-impact-permit process should not apply to uses by right.
“Leaf Properties seeks something different and broader: a declaration as to the operation and enforceability of the Code, for itself and anyone else who hopes to operate a ‘use by right’,” the reply in support of a motion for summary judgment states.
“Leaf Properties respectfully requests that the Court conclude the High Impact Permit process does not apply to uses-by right or, in the alternative, is invalid and unenforceable. Leaf Properties seeks
a judicial determination that, categorically, the High Impact Permit process does not apply to uses by right.”
Attorneys for the county argue that the land-use code requires a high-impact permit for any uses that exceed threshold standards.
The traffic generated by the Dollar General store would exceed those standards. The threshold standard for traffic is no more than 30 vehicle trips per day to the site, while the store would generate an estimated 678 trips per day.
The county in an answer brief filed on Jan. 9 said, “The Board found that at this location, Applicant’s proposed use constituted a significant adverse impact to the surrounding community due primarily to the high traffic impact in a rural setting, and its associated impacts. The record supports the Board’s exercise of discretion and the decision is entitled to deference. . . .The Board in this case did not abuse its discretion, exceed its jurisdiction, or misapply the law.”
