While the all-Democrat three-member BOCC: Gwen Lachelt, Julie Westendorff and Clyde Church are responsible for the letter’s contents, the county attorney didn’t confirm or deny the legal department’s involvement in the letter; although it would have been irregular for the BOCC to have not had legal review of the document by at least one of the county attorneys prior to publication. 

La Plata County citizens schooled on role of County Attorney  

  By Naomi Dobbs        

The Thursday, March 7, 2019 La Plata County Planning Commission meeting came with an unexpected legal warning which widely applies past La Plata County. 

Many citizens in attendance at the March 7th meeting were there to report on the progress of their district land use plan updates, but the first item on the agenda was the hot button: Project #2017-0160.  Agenda item #2017-0160-B referred to a February 5, 2019 open letter from the La Plata County Board of County Commissioners (BOCC) which was supposedly based on a complaint of 2-3 people regarding leadership of the land use planning districts, and which effectively scolded and accused hundreds of citizen volunteers who’ve been working on their district land use plans for over a year. 

The letter wasn’t just submitted to parties concerned, it was published in the local newspaper.  As resident Mae Morley put it, “The printing of that letter was ill-advised if not rash by the BOCC. Although the letter says, ‘this advisement does not discourage residents from organizing to present a unified voice as the process continues;’ it’s unclear what other purpose this letter would have served.”

Interest in La Plata County’s district planning process was revived a year ago in January of 2018 when citizens were upset by an egregious land use code revision proposed by consultant Kendig Keast Collaborative, which firm was subsequently fired.  The new code proposal indirectly revealed the La Plata County planning staff and planning commission had developed a new comprehensive plan dated May 2017 which claimed to have incorporated the vision and wishes of the county residents by relying on district plans which were appended to and defined by maps included in the comp plan.  The comp plan referenced district plans as policy documents which, “are integral to a refined and thoughtful land use classification system.” However, most of the district plans referenced in the comp plan were very outdated and only one had been properly recognized by the BOCC at the time the 2017 comp plan was approved. 

The county’s decision to update the comprehensive plan without prior update to the district plans remains a point of contention with local residents, and demonstrates the county’s failure to follow its own policy process in a logical and efficient manner.

On February 1, 2018 nearly 500 citizens from across the county gathered for a meeting which ended in a break-out session to initiate revival of the district planning process so that moving forward planning could be based on reliable, current information. The event was organized by volunteers which later formed the LaPlata Liberty Coalition (LLC) and Landowners of La Plata (LOLP). 

Apparently unbeknownst to the BOCC, before organizing the February 2018 meeting or pursuing the effort to update the district plans the volunteers contacted the La Plata County Planning Department on or near January 23, 2018 for advisement.  In response to question of how to revive district planning leadership, La Plata County Planning Department Director, Jason Meininger (now resigned) responded that district planning was a volunteer process and leadership would need to be appointed by the volunteers themselves within their respective districts.  Meininger reportedly further clarified district leadership did not need to be appointed by the county government. 

Following contact with Meininger, the volunteers attempted to identify past/current district leadership, although several were not reachable and some were deceased.  The volunteers reached out to and consulted with prior leadership in two of the largest and long-established districts, the Southeast District and the Fort Lewis Mesa District, and received additional confirmation Meininger’s information on leadership was in alignment with the historical process going back some twenty years. 

The volunteers’ research, clarification and understanding prior to reviving district planning also casts doubt on the BOCC assertion these volunteers were themselves confused and misrepresenting they were appointed, or serving in anything other than a volunteer capacity. 

According to several volunteers, last year’s community-lead revival of district planning came with new understanding of the importance of retaining the ground-up vision for land use planning in the county; a process which was established in the early 1990’s with the help of then County Commissioner, J. Paul Brown.  The February 2018 meeting also created new respect for the community’s responsibility to actively participate in the planning process.

The authority of the district-based planning process is acknowledged by the State of Colorado under Section 30-28-119 of the Colorado Revised Statutes as an optional land use classification and planning structure.  Per statute CRS 30-28-119(6), once district planning has been established for the unincorporated areas of a county it can only be removed by petition or vote of more than 50% of the residents in a district—unless or until the county adopts formal top-down zoning.

La Plata County citizens’ focus on district planning included conviction to make sure the districts were not only updated and revived, but also retained and managed responsibly.  “La Plata County’s residents have been good stewards of our lands for hundreds of years, and we’re committed to adding district planning to the responsibilities and values we pass to future generations,” said Michelina Paulek who is a Florida Mesa District Planning leader along with Brad and Kali Fassett.  Paulek, who prior served on the La Plata County Planning Commission, also helped advise volunteer district leadership to be inclusive, take attendance and minutes at meetings, appoint leadership by open vote, and encourage open dialogue. 

As the residents worked within their districts throughout 2018, they also cross-collaborated to share information and ideas about how to improve upon the content, appearance, and usefulness of their district plans.  This cross-collaboration lead to a multi-district decision to appoint a person to act as liaison between the individual districts.  Seana Luzar, a board member of the LaPlata Liberty Coalition and landowner with interest in several districts was appointed by district leadership vote to establish the role and serve as District Coordinator which volunteer duty included keeping the La Plata County planning commission and planning department apprised of the community’s district planning progress. 

On June 7, 2018 Luzar’s leadership role was acknowledged by the planning commission, and she continued on in the spirit of the volunteer assignment which she had accepted.  The work of the citizen volunteers was further acknowledged in July of 2018 when the district leaderships’ recommendation for a template to help structure district plan updates was accepted by the Planning Commission. 

Luzar was first to speak at Thursday evening’s March 7, 2019 Planning Commission meeting wherein she outlined the process by which she had been assigned the District Coordinator role.  Luzar emphasized that at no time had any of the citizens, herself included, ever implied they were staff or agents of the county government—a claim which was the sharp point of the BOCC letter.  Luzar also took offense to Planning Commissioner Tencza’s statements to the Durango Herald which reported on February 5, 2019:

“We say to people, help us out with (the district plan update),” said Jim Tencza, chairman of the La Plata County Planning Commission, the body leading the update. “But some take more ownership than they’re entitled to.”

Tencza’s comment to the Herald was absent any example and seemed to disregard his prior recognition of the citizen-lead efforts in general, and Luzar’s role as District Coordinator in particular. 

Tencza didn’t defend his comment, but rather made effort to clarify the last district planning meeting he had personally attended it was clear leadership wasn’t representing the county government.  It is a matter of record that throughout 2018 members of the BOCC and members of the Planning Commission attended numerous of the citizen-lead meetings wherein there was no subsequent mention or implication the volunteers were presenting themselves as government representatives, which would have merited immediate correction had it actually occurred. 

The omission of any prior notice adds credibility to Luzar’s conclusion the BOCC letter was based on a wrong assumption of only a few people who were uninformed and confused, and who should have asked the question directly but failed to.   

Craig Cates, a volunteer leader in the Southeast District, also addressed the commission and mirrored Luzar’s statement, and emphasized that none of the volunteer leaders targeted by the public letter had been contacted in advance for discussion or clarification.  Cates asked directly if any of the planning commissioners or any of the planning or legal staff present had been consulted or had any role in the development of the BOCC open letter.  The commission and planning staff which included Robby Overfield, Daniel Murray, and new staff member Devin King were all silent which suggested that none had been consulted.

However, the silence was broken by a County Attorney, later identified as Kim Purdue, who stated:

Speaking for the County Attorney’s office as a matter of, um, the ethical rules that bind us, I’d just like to be clear that I don’t want my lack of an answer to indicate an answer.  Uh, I’m not permitted by the rules of professional conduct governing the legal profession to comment on how any work product that is associated with our representation of any county department was prepared. (Comment from 03-17-19 meeting audio file)

Cates referenced he was aware the county attorney’s office was present at the June 2018 Planning Commission meeting where Luzar was acknowledged as District Coordinator, and would have therefor known the content of the BOCC letter contradicted or misrepresented the understanding and outcome of that meeting.  Perdue rephrased her prior statement that she could not answer whether or not county attorneys contributed to the BOCC letter, asserted she would not disclose advisements to her clients and ended with, “The answer is, no comment.”

While the all-Democrat three-member BOCC: Gwen Lachelt, Julie Westendorff and Clyde Church are responsible for the letter’s contents, the county attorney didn’t confirm or deny the legal department’s involvement in the letter; although it would have been irregular for the BOCC to have not had legal review of the document by at least one of the county attorneys prior to publication. 

Odd looks passed around the room in response to Perdue’s statement.  While the county attorney is correct in where the duties of the office lie, the frequent involvement of the county attorneys at prior public meetings had apparently created an impression of helpfulness without understanding the attorney’s objective is at all times to serve the best interests of their client—primarily the BOCC.     

According to various meeting records related to the land use code and district planning update process in particular, the county attorneys are frequently present and do answer audience questions and give clarifications in response to citizen comments.  Perdue’s response at the March 7th meeting brought new perspective to these prior interactions.  This clarification may also shed new light on two public documents the La Plata County’s attorney office prepared and published for community review, two of the county’s nine “memos” on controversial topic of zoning:

Legal Overview of Zoning’s Purpose and Implementation, Memo #6, September 11, 2018. Prepared by County Attorney’s Office — Sheryl Rogers and Kim Perdue.

Implications of Land Use Approvals and Zoning Classification of Property, Memo #7, May 29, 2018. Prepared by County Attorney’s Office.  This memo is listed seventh but was the first zoning memo prepared, the others are dated between August 29, 2018 and October 9, 2018

While the attorney ethics quoted by Purdue do require the contents of these memos be honest and accurate, information which may detract from or is contrary to the BOCC wishes may have legally been omitted.   The March 7, 2019 planning commission meeting provided notice to the citizens of La Plata County the county attorney’s office is, unlike staff and elected officials, not employed for the direct benefit of the people.  The county attorney is legally accountable to their client, the government which hired them, not the citizens participating in the government process.

“We need to keep the attorney’s loyalty in mind for sure,” said Lew Webb who is President of the LaPlata Liberty Coalition, “but the county attorneys don’t usually provide very direct answers to questions anyway.”  However, Webb did note one exception from the January 9, 2018 land use meeting held over a year ago at the Oxford Grange.   According to Webb, at that meeting county attorney Sheryl Rogers was present and defending parts of the proposed new code by referencing statute, until she was stopped with the question: Does Colorado statute require that we have zoning in La Plata County?  To which Rogers answered, “No.” 

Inserted Link Reference List:

  1. http://laplatacountyco.iqm2.com/Citizens/FileOpen.aspx?Type=1&ID=3167&Inline=True
  2. https://durangoherald.com/articles/262054
  3. https://pagetwo.completecolorado.com/2018/01/29/furor-over-proposed-land-use-code-erupts-in-la-plata-county/
  4. https://durangoherald.com/articles/214804
  5. http://lpccds.org/UserFiles/Servers/Server_1323669/File/La%20Plata%20County’s%20Community%20Development%20Services%20Department%20Migration/Planning/2017%20Comprehensive%20Plan.pdf
  6. https://pinerivertimes.com/articles/50260
  7. http://laplatacountyco.iqm2.com/Citizens/SplitView.aspx?Mode=Video&MeetingID=3863&Format=Agenda
  8. https://pinerivertimes.com/articles/90874
  9. http://lpccds.org/UserFiles/Servers/Server_1323669/File/Government/Departments/Planning/LUC_documents/2018_0212_CAO_Zoning_Policy%20Work%20Session%204838-0290-4669%20v.10.pdf
  10. http://lpccds.org/UserFiles/Servers/Server_1323669/File/Government/Departments/Planning/LUC_documents/2018_0504_Memo%20on%20Tax%20Assessment%20and%20Zoning%204823-6896-3685%20v.3.pdf
  11. https://durangoherald.com/articles/203112

Naomi Dobbs is a freelance writer, from southwest Colorado. She’s focused on topics impacting rural communities, including land use and property rights, plus farming and ranching and political concerns.

She can be reached at Naomi@writerural.com

 


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