Property rights present paradox for county residents

Friday, March 9, 2018 9:42 AM

By Josh Joswick

A truth: When the county goes to work on its land-use code, it is poking a stick into the hornets' nest. So it is no surprise that this latest county effort is eliciting some pretty strong reactions, unfortunately, this time with some very intense personal vitriol.

This time, too, the rallying cry is around "property rights," as it always has been historically from opponents of any kind of land-use planning effort. Here is a perspective on the concept of property rights, one formed from experience.

Through the 1990s and into the early 2000s, there were some staunch, vocal property rights advocates in the southern and western parts of La Plata County who took strong stands that anyone should be allowed to do whatever he or she wants with his or her property at any time.

"Do not abridge that right!" was the rallying cry. And yet, to a person, each and every one came before the county commissioners and demanded their neighbors not be allowed to do what they wanted with their property.

The proposed projects were: Wolfwood, the refuge/rehab center for wolves and wolf-dog hybrids (next to a sheep ranch); a Christian halfway house and counseling center for felons on their way into the real world; a proposed motorcycle rally campground; a lap dance emporium (in the Breen Mercantile building); and a gas well that would compromise a hay-growing operation on a neighbor's property.

To these property rights proponents, these projects went beyond what neighbors should be allowed to do on their own land. As concerned neighboring property owners, these people spoke against the projects.

The lesson here? When "how it should be" bumps up against "how it is," the commitment to an idea can falter. These people were sincere in their belief in property rights, and they were sincere in their opposition to what their neighbors wanted to do. How do you reconcile this philosophic inconsistency? Maybe all you can do is acknowledge it for the paradox it is - believing strongly in two standards that are diametrically opposed to each other.

And secondly, it is guaranteed that at some point almost all of the people who today follow the property rights banner will have a project show up next to or near them that they think is not a good idea - and they will oppose it. Experience shows us this will happen. It is the ideal that people support until it gets real. Then that support is eight miles wide and a quarter-inch deep because it has hit home.

Land-use policy is not a cut and dried business, and it runs the full spectrum of government involvement, from doing nothing and just letting things happen to heavy-handed regulation. According to the recent commissioners' column (Durango Herald, Feb. 3), the intent of the LUC revisions is, among other things, to streamline the permitting process and increase predictability and consistency for current and future property owners and applicants. The commissioners also make a point of saying that this is a work in progress and that nothing has yet been decided.

Land-use regulation is, by its nature, nuanced, and here is a personal position on it that, while pretty broad, might make it less nuanced and start to create some sideboards:

If people who grow alfalfa or run cattle want to instead grow oats and raise llamas on their place, or want to put up sheds or barns - or a bank of solar panels or windmills or greenhouses - go ahead. Just don't take water that is not yours, try to keep the lighting out of your neighbors' bedroom windows and shut up your barking dogs. But when you are proposing a use of your land - be it residential, commercial or industrial - that will have off-site impacts to such things as roads, clean air or noise through hours of operation, then your neighbors and the community in general should have some say as to that proposed use because it impacts them. And knowing what can happen where, ahead of time, is not a bad idea.

The county is working on how planning and permitting can be improved in what is now a big gray area. Our current land-use system is imperfect, and our outdated code, which has been in effect for some time, does not allow property owners to do whatever they please with their property. But to do nothing with it does not improve it, and to do away with it is not an option. The county commissioners have held public hearings on the first draft; they have taken what they heard at these hearings seriously and are going to continue to work on the document with those comments in mind.

So while the banner of property rights might be a righteous one to rally around, it is only one of the concepts that should be considered as our community moves forward with framing our land-use code.

Josh Joswick lives in Bayfield and currently works for Earthworks' Oil and Gas Accountability Project. He served as a La Plata County commissioner from 1993 to 2005.