Tuesday, November 20, 2018
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County updating 1041 regulations

Rules will affect two major proposals
In anticipation of a review of at least two proposed major developments—the Lucky Jack molybdenum mine on Mt. Emmons and Crested Butte Mountain Resort’s Snodgrass ski area expansion—Gunnison County officials have begun the process of updating the “regulations for special development projects.”
 

At the Gunnison County Board of Commissioners work session on October 22, county officials took the first crack at refining amendments to the nearly 140-page document, formally known as the Gunnison County 1041 regulations.
The regulations are reserved for developments of a large size and scope, and both the proposed Lucky Jack mine and the Snodgrass ski area expansion are expected to activate the special review process, which would trigger the regulations.
The special review allows county officials to determine whether large proposed developments would create undue impacts on the surrounding environment and local communities
The regulations address everything from wildlife and air quality values to socio-economic issues like tourism, housing and transportation.
County attorney David Baumgarten began the presentation by discussing the statutory basis for county’s authority. He said he wanted to offer the pros and cons of the various statutory tools available to county officials as they work their way through the proposed changes to the regulations.
“We’re going to try to make a neutral factual presentation of what the various authorities are,” he said.
Baumgarten cited Colorado State Statute 2920-104, which grants county officials the authority to regulate land within their jurisdiction. He noted that nothing in the statue precludes county officials from regulating federal land within their county.
“Although there have been challenges in past decades about whether we can regulate on federal land inside unincorporated Gunnison County, there is no differentiation in this statute between federal land and non-federal land,” he said.
According to Baumgarten, there are two methods of writing codes. One is the prescriptive method, in which measures such as distances and heights are specifically delineated—like an explicit setback from a property line.
“The other is a non-prescriptive, which is an outcome-related document,” he said. For example, instead of being tied to a specific distance, a non-prescriptive rule might be based on whether a development element affects water quality or blocks a view shed.
The problem with the former, according to Baumgarten, is that local regulations can be preempted by less stringent state and federal regulations. However, Baumgarten said, designing regulations in a non-prescriptive manner may allow local laws to retain precedence.
“When it came time for us to write our regulations for oil and gas development, we knew there were going to be challenges to us on preemption. (Therefore we wrote) the document in an almost wholly non-prescriptive fashion,” said Baumgarten. “And when we got to the court of appeals, they said Gunnison County had solved a problem that they had raised 20 years ago. . . Because we wrote ours in a non-prescriptive fashion, our document survived the challenge of preemption,” he added.
Perhaps the lynchpin granting local authority to projects can be found in two state statutes. These statutes allow local governments to designate areas of interest within their jurisdiction that can be managed specific to the jurisdiction’s wants and needs.
According to Baumgarten, the first statute allows local governments to designate specific areas in which certain development can occur (for instance, mineral development), regulate the footprint of the said development, and also regulate the impacts of the development beyond the reach of the development’s footprint.
Although the second statute asserts that mineral resources should be administered to facilitate their extraction, it adds, “If the local government having jurisdiction, after weighing sufficient technical or other evidence, finds the economic value of the minerals present therein is less than the value of another existing or requested use, such other use should be given preference…”
On its face, this statute indicates that mineral resource development does not necessarily take precedence over recreation or tourism, and the local jurisdiction has the authorization to decide.
Moreover, according to Baumgarten, once local officials have designated a specific area for a particular use, state statute prohibits development until the local jurisdiction has crafted the regulations that govern that use. Therefore, by state statute, there is a moratorium on all development activity within the designated area until the regulations—in this case the Gunnison County “regulations for special development projects”—are codified.
Because no major projects have yet entered the county permitting process, the state-imposed moratorium has not delayed any construction.
After thanking the county commissioners and their staff for their diligence in crafting the new regulations, High Country Citizens’ Alliance (HCCA) water director Steve Glazer said he would be unable to attend the rest of the meeting, and asked if he could comment on the draft regulations in writing.
But Gunnison County planning director Joanne Williams said the draft still required a lot of work and such comments would be premature.
“It’s still sausage,” she said, indicating the not-always-neat process of crafting such a document.
With that, commissioners settled into the arduous process of parsing the language of the draft to make sure it reflected their desires and would withstand legal challenges.
The process of drafting the new regulations will take place over several work sessions, with the next work session scheduled for Friday, November 5 from 8 a.m. until noon at the county’s Blackstock Administration Building, 221 N. Wisconsin.

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