Lawsuit challenges appeals to land use code

By JoAn Bjarko
North Forty News

Larimer County is too lax in following its own land use code, according to a Berthoud man whose neighborhood successfully challenged a land use interpretation in court last year.

Roger Seat, an air traffic controller who lives with his family on eight acres along Brehm Road, said he and 11 neighbors spent over $15,000 to defend what he thought should be an obvious land use policy.

"I'm not pro-growth or anti-growth," Seat said. "I'm just citizen Joe Blow with horses and a family."

Calling his first venture into the land use process an "eye opener," Seat has decided he can protect himself and other citizens by filing a lawsuit in district court to stop county commissioners from granting variances and appeals to the code.

"I want the county commissioners to follow the rules," he said. "I don't have any agenda. It literally is that simple."

Seat and his neighbors found themselves in court when one other Brehm Road resident wanted to divide his 10-acre parcel into three lots. Zoning allows the land division. County planners, however, noted the code would require that the roads for the new lots not only connect to the half-mile private Brehm Road but to any future development on the other side of the property. That would mean in future years hundreds of vehicles could be using the small road the neighborhood maintains.

On Sept. 10, 2003, District Judge Daniel Kaup ruled that property outside the Brehm subdivision cannot legally connect to the private road. At that point, the planning department was willing to give the developer a variance to the road standards in the land use code, and Seat decided it was time for a legal ruling on granting variances and appeals.

Seat did not hire a lawyer to handle the complaint he filed in court on June 22. He is not asking for any monetary damages or a decision on a particular land use case. He just wants the judicial branch to rein in decisions made in the planning department and county commissioners' office.

Seat is looking for other county residents who think they have been harmed by appeals to the code. A consultant researching cases may be contacted by e-mail at FraseConsulting@aol.com.

"I want a judge to say the land use code does not give the county commissioners authority to grant variances from the land use code," he said. "I also want the judge to say in state statutes the board of adjustment is the body that grants appeals and variances."

"There are times when a variance or an appeal makes sense," county planning director Larry Timm said when asked about Seat's argument.

Timm said the staff is currently looking at changing the appeals section in the land use code, but he does not think the county is breaking state law. "You can't write a code to anticipate all circumstances," he said.

Seat said he does not fault developers for asking for variances. "My beef is 99.9 percent with the county," he said. "They don't have the right to do what they're doing."