In preparation for the Oct. 30 Planning Commission meeting in which a topic item will be the limited impact review for Alison Brown’s application for an outfitting facility permit, Chaffee County has issued a staff report that appears to contain misconceptions about her property use. The conditions they recommend include the need for a commercial well, water augmentation, a possible on-site waste water treatment system and a commercial road access permit limiting her use of the private road by which she accesses her property. The county also wants to regulate whether friends who happen to be fox hunters can come to her home. Some interpret this as broad government overreach of a rural property owner.
Brown’s water rights are in question. Without official input from water authorities, county staff has declared that Brown will be required to forsake her domestic well, drill a commercial well and file for water augmentation because it views that “outfitting is a commercial use.”
Brown says she is not a commercial operation and has six horses on the property. “My well permit says I can water my horses, but the county says I need augmentation because they decided I am a commercial use. The well was there before I moved there. All this when my stables and equestrian facilities are already permitted in my zoning without any review required.”
District 2 Water Commissioner Brian Sutton says he wasn’t asked to weigh in on the application. Upper Arkansas Water Conservancy District General Manager Terry Skanga had not weighed in either.
Reached by phone, Skanga checked the state’s water rights language with Division 2 District engineer Bill Tyner and provided the following link verifying the policy that Brown’s use meets what is termed ‘incidental commercial activity,’ which does not require a commercial well. His written response referred to the state’s policy as “Policy Regarding Commercial Enterprises on Residential Parcels.”
Horses are by definition livestock, and domestic wells are allowed to water livestock. A look at the water district map reveals that there are few commercial wells anywhere around Brown’s spread (Skanga confirmed that Skanga Meats, about a mile and a half away from Brown’s property, has a commercial well). Even the boarding stables just across U.S. Highway 291 owned by Missy Scott, south of Brown’s property at 11600 Antelope Road, appears to have no commercial well.
Sutton, who said Tyner was his boss’s boss, confirmed that any property over 35 acres is guaranteed that a full use domestic well is allowed for outdoor uses and livestock watering. Brown owns two, roughly 40-acre parcels. “If it was 80 horses boarded, that would be something else – that would be a consumptive use,” said Sutton. “But this few animals? Seems to be incidental commercial activity.”
Asked why Chaffee County would say that Brown be required to acquire water augmentation, Sutton said, “They might be being overly cautious and are probably unaware of this policy. It was first created in 2011 and revised twice since then. The reason it was written was situations like this.”
“This whole thing pivots on what the state considers to be commercial water use,” said Skanga. “The state policy talks about incidental commercial use – that’s the real question for the county. What is her activity: is it truly commercial, or is it incidental commercial activity?”
Not only is Brown’s well use on her rural-zoned property questioned, but the county’s recommended conditions say that as an outfitter, she can’t access her property without a Chaffee County Commercial Access Permit because staff considers that she is a commercial use. Chaffee County Road and Bridge Supervisor Mark Stacy indicated, in his written response regarding the application, that Brown’s use of what is officially a private use road had no effect on his department.
In addition, the staff report declared that if Brown is a commercial use she must have customers, so her wastewater treatment system has to be analyzed and customer facilities provided based on that investigation.
Brown says she isn’t doing the outfitting facility application because she is commercial but because she is being forced to. Brown says she’s fighting government overreach on behalf of rural Chaffee County residents and trying to keep the issue out of court.
“The amount of time and money the county has expended from taxpayers’ dollars to enforce this action is ridiculous. I decided not to pursue taking this to another level in court. Even though the judge opened the door for that to happen, I decided that to avoid further expense to county citizens I would move forward with a limited impact review even though I vehemently disagree with the county’s right to enforce these actions based upon my constitutional rights as a Chaffee County citizen and that of other Chaffee County citizens.
“If they can do this to me, then the county could pursue actions like this against every rancher in this valley and deny them their rights to use their wells. Based on what is happening to me, they could.”
The staff’s final recommendation is to limit who would be allowed to come to Brown’s property – a condition the county has attempted twice before. The wording says, “No public or visitors associated with foxhunting shall come to the site.” Both times previously, a district judge denied that the county had enforcement authority.
“So now they’re regulating who can come see me? This pretty much means many of my friends are banned from the property by the county,” said Brown. “So anyone who happens to fox hunt, who boards horses at the riding stables across the way – they can come to her place, but not to mine?”