County to rewrite 'use by right' out of its land use code

Montezuma County is preparing to strike the phrase “use by right” from its land use code and replace it with “allowed use,” a change the county attorney told commissioners at an October 5 workshop comes directly out of the county’s litigation with Leaf Properties over a proposed Dollar General store.

Graphic: Cortez Current. Source: Montezuma County BOCC workshop video, Oct. 5, 2026

No votes were taken. A county workshop is a discussion meeting, and the board will have to set a public hearing before any of the code changes can be adopted.

Why the wording is changing

The county attorney said “use by right” is not defined anywhere in Colorado law, and that a reader could be forgiven for thinking it means a property owner can do something without restriction. That is not how county staff understand the code to work, he said, and it was a central point in the county’s briefing in the Leaf Properties case. A district judge upheld the county’s denial of the Dollar General permit in July. The developer, Leaf Properties, has appealed that ruling to the Colorado Court of Appeals.

The draft adds language saying that a use allowed in a zoning designation still needs a high impact permit to exceed any of the county’s threshold standards, and that the standards apply across all development in the unincorporated county unless a different standard is set elsewhere in the code. Every place the existing code says “use by right,” the draft says “allowed use.”

The road rule that came out

The draft the attorney brought also contained a new threshold standard: that moderate and major subdivisions must be reached by roads already built to county road standards — a 24-foot driving surface among them. Under questioning, staff confirmed that would put the cost of upgrading an existing county road on a developer.

Commissioner Gerald Koppenhafer objected, saying the county has roads that could not be widened to that standard without taking land and fence lines inside a 60-foot right of way, and that it is not fair to hold a land owner to a standard the county does not meet on its own roads. A second commissioner agreed. The attorney said the provision would come out of the draft. The long-standing requirement that a new subdivision’s own internal roads be built to county standards is unchanged.

Solar setbacks and battery storage

The board also went through cleanup changes to the solar regulations it adopted earlier this year. The 500-foot setback from property lines will be written to apply specifically to the solar array rather than to fencing, substations or cabinets, and after discussion the commissioners asked that battery storage be covered by the same 500 feet, on safety grounds. The draft will also say plainly that a solar project allowed only through a special use permit still needs a high impact permit, and will require an operator to keep the emergency contact information posted at a project site current within 30 days of a change.

Racetrack lease

Commissioners agreed to let the operators of the county racetrack out of the third and final year of their lease after the operators said they do not have the funding to continue. The county attorney said he had prepared a notice of termination, which the lease allows on 30 days’ notice, and that it would treat the operators’ statement that they will not perform the final year as grounds for termination. The operators would have to remove their equipment, county staff would inspect the site, and the county would release them in writing. The notice also states that the light structure that fell at the track counts as normal wear and tear, so the county would not require them to repair it.

Also at the workshop

A temporary agreement to have the county manage information technology for the City of Cortez was discussed at $7,500 a month for the rest of 2026, with month-to-month extensions available through March. The county’s interim administrator described it as a stop-gap while the city, whose own technology director has retired, decides on a longer arrangement.

A representative of the Region 9 Economic Development District asked the board to start thinking about buying fiber strands along U.S. 160 and Colorado 184 between Cortez, Mancos and Dolores. He put the total at about $2.3 million, with about $1.8 million sought from the Colorado Broadband Office and a little over half a million dollars from the county as a one-time match covering a 30-year lease. No decision is needed until the grant round opens in the middle of next year.

The same official presented the housing needs assessment the state now requires of every jurisdiction with more than 1,000 people. He said Region 9 has automated it with an $80,000 grant so that the five counties and 10 municipalities in the region no longer have to hire consultants every six years. The figures he gave for Montezuma County: a shortfall of 438 housing units to catch up with current need, and a typical home value of $417,000. Commissioners’ main comment, which he said he would submit with the assessment, was that the state should not have imposed the requirement without funding it.

Commissioners also heard that the sheriff’s office wants to apply again to a federal program that reimburses half the cost of replacing ballistic vests, with eight due for replacement in 2027; that the coroner’s office will continue a grant that reimburses toxicology testing; and that the county has to sign a contract with a new state broker to keep non-emergency medical transportation running from January 1, which a county human services official said the county has little choice about but which the community badly needs. Two people have written in seeking appointment to the county fair board, and the board expected to make an appointment at its regular meeting on October 6.

One commissioner said he had taken several calls over the weekend about the county fire ban and would raise lifting it in his report at the October 6 meeting, noting how much rain has fallen. The ban remains in effect in unincorporated Montezuma County as of this story.

The full recording is on YouTube: Montezuma County BOCC Workshop October 5, 2026.

Correction, October 6: An earlier version of this story misstated the outcome of the Dollar General case. The district court ruled for the county, and the developer is the party appealing.