County commissioners seeking change to 35-acre subdivision rule

Current law allows subdivision with no local oversight

When Gunnison County Commissioner Hap Channell heads to the meeting of Colorado Counties Incorporated (CCI) this month, he wants to know where the other commissioners stand on the unregulated subdivision of land.



Colorado Senate Bill 35, passed in 1973, grants property owners the ability to subdivide their land into lots of 35 acres or larger without oversight from county government. But there may be a renewed effort to change the law in the state legislature and CCI could be a part of the discussion over possible changes.
“There’s an ongoing, never-ending question at the legislative level—particularly brought up from rural resort counties—about the inability, or perceived inability, to control 35-acre subdivisions beyond roads, building permits and things of that nature,” Channell said. “There’s a feeling that the counties don’t have enough jurisdiction over land use. So it’s a matter of how we want to look at it.”
Commissioner Jim Starr said the problem is sometimes that the newly subdivided land is often in far-flung areas where services are unavailable and access on roads is tough to maintain.
“Why is the law even there in the first place?” asked Starr. “It creates the most difficulty we have in preserving ranching. It enables someone to cut up land in a way that doesn’t save hay meadows and in a way, I feel, that has maximum impacts on adjoining ranchlands. I think that’s a widely held viewpoint in the state these days.”
Different counties approach the problem from different directions, but many handle the development of those lots through the building permit process. Under state law, landowners can subdivide their property into 35-acre lots uninhibited, but the counties can still withhold the building permit for development.
At CCI, where counties form a consortium to discuss county issues and lobby at the state level for local control, Channell said, there are two prevailing schools of thought: those who feel something needs to be done to remedy the problem, and others who believe the authority already exists, but not in a straightforward way.
Commission chairperson Paula Swenson said she feels that the “legislation should explicitly say ‘We should be the ones regulating our community, not the state.’”
County Attorney David Baumgarten said there are four ways an entity like Gunnison County could deal with the problems that might arise from the subdivision of land into 35-acre parcels.
“The plus-35-acre rule was created as an exception to the definition of subdivision,” Baumgarten said. “So the easiest way to solve the problem is eliminate that as an exception to subdivision [through legislation] so that every time you divide land it’s a subdivision. That would be the most straightforward way of dealing with the problem.”
Such an effort would have to get the endorsement of CCI, County Manager Matthew Birnie said, because “if CCI can’t get behind it, it doesn’t have a chance [in the legislature].”
Baumgarten said, “A second way to regulate that land would be one that the state has never had courage to deal with. It would say ‘You can’t develop on a piece of land unless you can show ‘x’ years of dependable water supply.’”
The third way to regulate the development of 35-acre parcels would be to authorize a moratorium on subdivision until a county-wide stock of developable land has fallen below a certain level. However Baumgarten conceded that the county doesn’t have a very strong moratorium authority.
Finally, the county could just withhold building permits like several other counties do.
After the discussion, Channell understood from Starr and Swenson that they would like to see the 35-acre discussion go in a legislative direction, ultimately leading to more control for local governments.
Channell said he would talk to state Senator Gail Schwartz, who might be sponsoring or promoting legislation to accomplish just what the commissioners are hoping for.
The legislative agenda, which dictates where CCI will spend time at the state capital, will be set at their meeting on October 9.

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