Avoiding “unintended consequences” dominated the discussion at the joint Planning Commission/County Commissioner work session on June 7 and focused on whether a sweeping definition of outfitting was really what was needed or wanted. No conclusions were reached, other than that further work sessions were necessary. Planning Commission Chair Mike Allen, with the consensus of the work session participants, asked staff to draft some test language for consideration by the Planning Commission.
The Planning Commission requested a work session at its last meeting when the need for review of the definition in the county’s land use code section regarding “outfitting facilities” became apparent and the commissioners asked to participate. Attending the joint session were County Commissioners Baker and Greg Felt, and Planning Commissioners Mike Allen, Tracy Vandaveer, Rob Treat, Bruce Cogan, Joe Stone and Bill Baker. Planning commissioner Marjo Curgis, who could not attend, submitted comments on research she had done of other communities. Others present were county Director of Development Services, Dan Swallow; Planning Manager Jon Roorda; and planner Christine Barton.
The “unintended consequences” reference an injunction obtained by the county against Alison Brown in one of many proceedings initiated by actions of county staff under the direction of Swallow and Roorda and implemented by County Attorney Jennifer Davis. The focus: to shut down Brown’s fox hunting club activities related to her property at 11600 Antelope Road.
In a May 9 ruling, the court declined to adopt the order proposed by Davis to shut down Brown’s fox hunting club operations. Instead, the court issued a narrower injunction that enjoined the fox hunting club operations pending Brown’s application for, and obtaining, a Limited Impact Review and Permit for the operation of her club as an “outfitting facility” on her property. Presumably, Brown’s right to operate her club on her property would be subject to review at that time.
As the court stated in its order, “arguments that go to the county’s failure to follow its procedures as laid out in the CCLUC or arguments that attack the regulation’s wording are not before this court. Further, the county is still bound by its allegiance to the principals espoused in Section 1.1.3 of the CCLUC and landowners are protected by the procedure enshrined in C.R.C.P. 106(a)(4) which protects against a “governmental body…exceed[ing] its jurisdiction or abus[ing] its discretion.” The court twice noted that constitutional questions remain to be decided.
The “unintended consequences” arise from the county’s preferred definition of “outfitting facilities” urged upon the court in pursuit of an order against Brown. As the county requested, the court held that the “definition of Outfitting Facilities requires not only the presence of improved structures and facilities on the property in question but also the use of these structures and facilities in conjunction with the offering of guiding services for outdoor expeditions.” Brown was found to meet this definition by housing horses and dogs on her property and going from there with friends to hunt on federal lands. The court acknowledged that “the county’s definition of outfitting facilities may sweep in conduct that is as benign as a grandfather taking his grandson out for a horseback ride.”
The work session debate focused on whether such a broad definition was wise. Felt noted that the existing situation (the Alison Brown matter) had brought to light the possible need to amend the “outfitting” definition issue.
Baker observed that the county now is regulating not an activity but a “physical facility” that houses animals or gear used for an outfitting activity, noting that there can be facilities without activities or activities without facilities. Facilities include fenced areas for dogs and corrals for horses.
PC Bruce Cogan said the current definition is too broad and should be limited, for example, to something like activities involving a certain number of trips in and out of the property per day or per month. PC Bill Baker added examples like limiting to a number of people or a number of days per month or on a number of weekends.
Felt said he considered the commercial element of the activity relevant. Most agreed but struggled with a definition of “commercial.” He pointed out that members of the Greater Arkansas River Nature Association might meet at a private home for a hike on federal land. Fees for typical GARNA hikes might be referenced as “a fee of $5 for members and $7 for non-members.”
This led to Felt’s suggestion to change the code from regulating “outfitting facilities” to regulating “outdoor recreational businesses,” which Allen and other commissioners and planning commissioners appeared to favor.
Vandaveer and Treat generally agreed, saying it would be difficult to anticipate what might come up and that the criteria should be as flexible as possible, perhaps leaving it to staff to determine what should be permitted. Cogan said specific guidelines are needed, while Allen added that the staff also needs criteria.
Director Swallow said he favored Vandaveer’s preference for flexible language, leaving the decision to staff’s discretion. “If the impact is so minor, we wouldn’t enforce it. Is it creating a problem? If not, it’s not on our radar … If there are no complaints from neighbors.”
Planning manager Roorda noted in an implicit reference to the Brown situation that the county had “responded to neighbors.” In that case, complaints came from a neighbor who moved to neighboring parcel two years after Brown began her fox hunting club, replacing a neighbor who had not complained.
The panel expressed awareness that there were unresolved constitutional issues, but those issues were not specifically discussed.