The Delta County Board of County Commissioners (BoCC) held a work session on the Land Use Code today March 15th, 2023.
This work session focused on the important question of Allowed-by-right. The Commissioners reviewed each use listed in the current draft of the code (page 33, Table 2B), and considered which uses would be retained as allowed-by-right and which would instead require increasing levels of review that include specific standards, public notice/hearings, and other requirements.
The 2021 Land Use Code, in effect today, lists a large number of uses as allowed-by-right “A”. These allowed-by-right designations were promoted heavily during the development of the 2021 code as protecting private property rights and reducing red tape and such promotion remains on the county website today. These allowed-by-right uses do not require county review under the 2021 Land Use Code. They do however still need to meet certain requirements, including state septic requirements (OWTS) and state electrical inspections. Over 40 uses were proposed to be changed from allowed-by-right to Permitted under the recent Land Use Code Revision that was voted down at the 2/28/2023 public hearing, and this was one of the major objections to that draft.
The commissioners today retained the majority of those uses currently listed as allowed-by-right with the same allowed-by-right designation in the newest draft. Commissioners stated that many residents had clearly requested additional freedom and corresponding responsibility in retaining the allowed-by-right uses.
The commissioners also wanted to be clear that allowed-by-right does not allow for illegal development, and does not remove the landowners responsibility to respect and follow property lines, easements, setbacks, state septic requirements, access and address requirements, state electrical inspections, etc. It is the landowners responsibility to meet these requirements and to take responsibility to address any problems or consequences if they build on an easement or over a property line for example. But the county will not require permits, permission or review for these types of allowed-by-right uses. The code designates many other uses as requiring Limited Use Permits with specific standards, or Conditional Use Permits requiring public hearings and specific standards. These are typically higher impact commercial and industrial uses.
There also currently exists a 2016 Development Application Ordinance (available for download on our Resources Page), which is a separate ordinance from the Land Use Code, and requires residential and commercial development in the county to submit a site plan to the planning department in advance and apply for permits for address, access, septic and to show an adequate water source.
This ordinance, while passed in 2016, was not well known or enforced until after the 2021 code was passed. Often the ordinance was only enforced if a landowner was installing a new electrical service, which requires an address. The ordinance was not available on the county website until 2023. There is debate as to whether the ordinance was intended to be repealed as part of the passage of the 2021 Land Use Code, it appears that was the intent but that the procedure for repealing the ordinance may not have been properly followed.
Today the commissioners asked the county attorney to prepare to repeal the Development Application Ordinance with the passage of a revised Land Use Code.
They asked that a checklist be prepared to be included in the Land Use Code outlining the specific requirements that apply to allowed-by-right uses including: access, address, adequate water, state septic (OWTS) requirements, easements, and setbacks. Landowners would be responsible for meeting those requirements without review from the county.
Prior to the 2021 Land Use Code, the county operated under the previous Specific Development Regulations for two decades. A copy of the regulations is also available on our Resources Page. Higher impact commercial and industrial uses were subject to the regulations and required public hearings that included consideration of compatibility with neighboring properties and other standards. However, those regulations exempted all residential and agricultural uses from regulation. This led to the promotion and inclusion of the allowed-by-right designation in the 2021 Land Use Code in order to protect those exemptions for residential and agriculture from over regulation.
DCC will continue to report further details including updated drafts and which specific land uses are proposed to be retained as Allowed-by-right and which are proposed to change to require more regulation and review.