Attorneys representing the Montezuma County board of commissioners and a corporation seeking to build a Dollar General store here made their cases in District Court on Thursday.
About 20 local residents watched as the lawyers debated issues such as what constitutes a “use by right” under the county land-use code.
The county commissioners have twice rejected a proposal by the Georgia-based corporation Leaf Properties to construct the dollar store on a roughly 4-acre site at the intersection of Highway 145 and N Road.
The board first rejected a high-impact permit for the development in April 2024 and most recently in July of last year. Both rejections came on 2-1 votes, with Kent Lindsay and Gerald Koppenhafer supporting the rejection and James Candelaria disagreeing.
Leaf Properties filed a lawsuit challenging the decision.
On Thursday, attorney Andy Peters of Otten, Johnson, Robinson, Neff, & Ragonetti, P.C, a Denver-based firm representing Leaf Properties argued that because the site is already zoned commercial and sits in a commercial overlay district, the development is a use by right and should not have had to seek a high-impact permit.
He cited part of the land-use code under Section 2201 that states, “For proposed commercial or industrial uses that are deemed a use-by right through zoning that fail to meet any threshold standard(s), a mitigation plan pursuant to Section 2202.5 shall be required.”
Peters said the developer had submitted mitigation measures and therefore, “We never should have been through the process in the first place.”
Peters also questioned the importance of comments and observations voiced by local citizens during public hearings, saying they didn’t constitute “competent evidence.”
A number of people spoke at hearings before the commissioners and the Planning and Zoning board, and almost all of them were opposed to the Dollar General store, voicing concerns about traffic safety, fire danger, and effects on the “rural character” of the area.
Peters said the Colorado Department of Transportation had signed off on the proposal, it had obtained a driveway permit from the county, and the developer had submitted a traffic impact study that showed there wouldn’t be a problem.
“Observations cannot be considered competent,” Peters said, referring to the public comments about traffic and other concerns.
District Judge Todd Plewe ssaid “competent evidence” is not defined in Colorado law, and Peters concurred.
“Are you arguing that the public testimony cannot be considered competent evidence?” Plewe asked.
“Not categorically,” Peters said, but he said there was “a bar to clear” that the public comments had not met.
During his arguments before the court, county attorney Stephen Tarnowski said that uses by right are those that don’t exceed any of the 33 threshold standards in the land-use code.
He said the Dollar General store would exceed the standard for traffic – which is 15 vehicle round trips per day – by a factor of 22.
“The board thought this impact could not be mitigated by the applicant,” Tarnowski said.
He said the Leaf Properties argument that developments in the right zones don’t ever require a high-impact permit “ignores the entire structure of the land-use code and is incompatible.”
“Nowhere does the code say, if it exceeds the threshold standards you do not need a high impact permit,” Tarnowski said.
He also said that the opposition “can’t point to any cases that point to public comment not being competent evidence” and that it didn’t require someone being an expert to provide competent evidence.
He said public comments at the public hearings highlighted several flaws with the traffic study Leaf Properties had submitted, including the fact that the study was conducted in February, which is not a high-traffic time locally, and it didn’t include several accidents that had occurred near that intersection, including a very serious one in the fall of 2024.
“The board was tasked with weighing those competing pieces of evidence,” Tarnowski said,
Plewe, who had earlier called the land-use code “poorly written” and “jumbled,” told Tarnowski it “seems full of inconsistencies and contradictions, especially the phrase ‘use by right,’ which may lead someone to think that it’s not discretionary.
“The entire code is peppered with that phrase, which is not defined,” Plewe said.
Tarnowski said he would concede that the phrasing was “inartful at best.”
Plewe asked whether a development that did NOT generate more than 15 vehicle round trips per day, no matter what the development was, would be automatically approved.
Tarnowski said the hypothetical proposal would also have to meet the rest of the 33 threshold standards.
“These are how rural character is codified in the code,” he said, noting that preserving rural character is one of the code’s goals.
Plewe asked whether, as Peters had contended, the code grants the commissioners “unfettered discretion” as to whether to grant or deny high-impact permits.
“We don’t find that argument persuasive,” Tarnowski said. “Our position is that it is not an arbitrary, undefined, opaque ball. There are 33 standards that are explained and defined. Our position is that the board ultimately followed the structure that is in the code.”
Plewe said he will take all the arguments into consideration and will issue a written decision later.
