Transferring development rights, Summit County style

This article is reproduced from the Summit Daily News, August 26, 2009, by permission of author Noah Klug

A recent court ruling muddies the waters.

The Summit County District Court recently decided the county could not require a landowner to purchase density through the county's transferable development rights (TDR) program in order to develop his four lots. The court's decision is likely to result in changes to the county master plans and regulations.

In the 1960s, the Stoningtons bought four contiguous platted lots in the Silver Shekel subdivision near Breckenridge. In 1978, the Stoningtons successfully petitioned the county to vacate the lot lines between the four lots to create one large lot. The Stoningtons indicated in their petition that they did not plan to develop the property. Since that time, the county has treated the lots as one lot for purposes of property tax and other matters. Doug Polanski purchased the consolidated lots in 2006 and then applied to the county to re-establish the lot lines. The board of county commissioners (BOCC) approved the request subject to certain conditions, including the requirement that Polanski purchase density for the three recreated lots through the county's TDR program. Polanski asked the district court to review the TDR requirement.

The BOCC said it made its decision because (1) the Stoningtons told the county that they would not develop the lots and (2) the county relied on the Stoningtons' representations to its detriment by foregoing “decades of property tax revenues, and assessments for public improvements.” The court rejected the county's reasoning because there was no evidence that Polanski knew about the Stoningtons' representations when he purchased the lots. The court also found that the Stoningtons' representations were not a promise that they (and future owners) would never develop the lots, but only a statement that the Stoningtons personally had no intent to develop the lots at that time. The court noted that the county could have protected its interests in 1978 by replatting the lots into a single lot or recording a covenant restricting the lots' development (neither of which was done).

The court found these reasons sufficient to overrule the BOCC. Nevertheless, it took the unusual step of identifying an additional ground for reversing the BOCC's decision based on the language of the county master plans and regulations (even though that issue had not been raised by Polanski). Courts don't usually consider arguments that are not raised by the parties to a dispute, but they have discretion to do so in exceptional circumstances.

The court interpreted the Countywide Comprehensive Plan, which provides guidance for development of the county overall, two Upper Blue Master Plans, which provide guidance for development specifically in the Upper Blue Basin (which extends from Hoosier Pass to Lake Dillon), and the County Land Use & Development Code. Taken together, the court found the language of these documents to mean that a property's underlying zoning governs its allowed density, not provisions in the master plans that purport to restrict density. Since the lots at issue were zoned to allow two homes per acre, and they were more than two acres in total size, the court said the county could not require Polanski to purchase additional density in order to recreate the four lots.

Summit County disagrees with the court's decision; but, rather than appealing, the county decided it would be more productive to make significant changes to its regulations and master plans to ensure the continuing viability of the TDR program. It will be interesting to watch this process develop. A copy of the Polanski decision is on my firm's website, www.BreckenridgeLawyer.com, for those interested in reading it.

Noah Klug is an attorney with the Breckenridge law firm of Bauer & Burns, P.C. He may be reached at (970) 453-2734 or Noah@BreckenridgeLawyer.com. He is a member of the Snake River Planning Commission, which may be involved in reviewing the TDR program.