The Grand County Commission has rejected a zoning appeal filed by the Kane Creek Development Watch group, upholding the “highway commercial” designation of approximately 140 acres within the Kane Creek development.
The Watch group, which was formed this year to oppose the 586-unit mixed-use subdivision along the Colorado River, has previously raised concerns about the project’s environmental and community impacts.
However, this appeal focused solely on the zoning’s legal validity, arguing that a 1992 ordinance rezoned only 114 acres for commercial use, leaving much of the floodplain zoned for agriculture, and claimed an unofficial 2005 map, which the commission ultimately backed, unlawfully expanded commercial zoning by an additional 30 acres. They emphasized the lack of documentation approving or explaining this expansion, highlighting discrepancies between the map and the 1992 ordinance, which remains the only available official record.
The Watch group further argued the 1992 ordinance itself was flawed. They noted that public meetings at the time only discussed a 10-acre rezone, and testimony from then-Commissioner Sam Cunningham indicated the 114-acre description in the ordinance was likely a mistake.
Conversely, the developers’ attorney, Bruce Baird, and the Grand County Planning and Zoning Department contended that the 2005 map reflected consistent zoning maps relied on for nearly two decades and that overturning the designation would expose the county to significant legal and financial risks.
The commission unanimously approved its decision at its Dec. 17 meeting but issued three written opinions reflecting differing interpretations of evidence and legal standards.
Decision and reactions
The primary opinion, supported by Commission Chair Jacques Hadler, Commissioner Trish Hedin and Commissioner Mary McGann, emphasized reliance on longstanding county maps and legal standards due to inconsistencies in historical zoning records.
“For the reasons discussed below, including subsequent maps published by the county, the absence of unambiguous evidence, and the force of law, we reluctantly conclude that it is in the county’s best interest to accept the county maps’ portrayal of the zoning of [Kane Creek and Preservation Development’s] property,” the primary opinion stated.
KCPD expressed satisfaction with the commission’s decision in a statement, stating they are eager to proceed with the approval process for their application.
“We believed this unprecedented action was illegal and inappropriate and were not surprised that the county’s legal decision ultimately ruled in our favor even after going through a public hearing process designed to appease Kane Creek Watch.”
Cody Priano, who represented the Kane Creek Development Watch group during the appeal hearing, criticized the commission’s decision, framing it as a failure to uphold local interests in the face of outside pressures.
“With this decision, the county commission majority chose to cower to a bully instead of following the law and protecting local citizens, the environment and morality,” Priano wrote in a statement on behalf of the Watch group. “This sets a terrible precedent for any big developer that wants to exploit Grand County – it shows them that if they have enough money and threaten big lawsuits, the county will cave to their demands.”
Priano reassured that the fight against the development as a whole is far from over.
The developer’s statement also raised concerns about the broader implications of the appeal and its aftermath, citing online threats and calls for physical retribution against the property owner’s families from some.
Arguments and zoning history
The dispute began on June 29 when the Watch group filed a request for a zoning interpretation under the county’s Land Use Code. The Grand County Zoning Administrator Amy Wesier, also the planning director, rejected the request, citing it as impermissible, untimely and lacking standing. In response, the Watch group appealed the decision to the Grand County Commission, which allowed Kane Creek Preservation and Development (KCPD) to intervene.
The commission received written briefs from all parties and held a public hearing on Dec. 3. Since then, commissioners have deliberated in multiple closed sessions to review the evidence and arguments before announcing their decision.
In the hearing, the Watch group argued the 1992 ordinance described only 114 acres of commercial zoning and left much of the floodplain as agricultural. By contrast, the 2005 map expanded commercial zoning by 30 acres, covering the floodplain, eventually enabling the proposed development. They noted that the 2005 map was a draft created before a zoning ordinance was passed, and the map tied to the ordinance was lost.
The Watch group also cited 1992 meeting minutes and testimony from former Commissioner Sam Cunningham, who stated the intent was to rezone only 10 acres for a campground.
Additionally, they referenced a 2010 Times-Independent report describing a county eviction on what is now KCPD property. A county official quoted in the article stated that only 18 acres were zoned commercial, with the rest designated as agricultural.
In their argument, the Watch group emphasized discrepancies between the 1992 ordinance and the 2005 map adopted by the commission. They pointed out that the 2005 map contains approximately 30 additional acres of highway commercial zoning in different locations than the 1992 ordinance described.
Baird and Planning and Zoning attorney Corbin Gordon countered that the 2005 map, while unofficial and expanding the zoning area to approximately 140 acres, reflected consistent zoning maps relied upon since 2005. However, they acknowledged that the zoning maps since 2005 do not match the 1992 ordinance but argued that reliance by property owners, developers and county staff since then solidified the 2005 map’s legitimacy.
Baird further argued that zoning estoppel — a legal principle preventing governments from reversing zoning decisions relied upon by property owners in good faith — applied in this case, bolstering the argument for maintaining the zoning as depicted in the 2005 map.
Overall, Baird described the appeal as speculative, untimely and legally unsound, warning of the significant risks involved in overturning the zoning.
“If you vote to overturn this zoning, you could expose Grand County taxpayers to hundreds of millions of dollars in damages,” Baird said at the hearing.
The commission’s primary opinion
The primary opinion from Hadler, Hedin and McGann delved into the complexities of the zoning history and the legal framework guiding the commission’s decision.
While acknowledging significant inconsistencies in the historical record, the commissioners supporting this opinion emphasized the importance of relying on longstanding county maps and legal standards to resolve the dispute.
The opinion highlighted challenges arising from incomplete documentation, including the loss of official maps from 1999 and 2005, and discrepancies between the 1992 ordinance’s legal description and discussions in public meetings at the time.
Despite these ambiguities, the commissioners concluded that nearly two decades of reliance on maps portraying the area as highway commercial — by property owners, developers and county officials — had effectively solidified the zoning.
Zoning estoppel was also cited as a critical factor in their decision.
“We wish that the 1992 ordinance’s legal description had matched its stated intent,” the opinion stated. “We wish that the county had kept the maps adopted in 1999 and 2005. We wish that, for nearly twenty years, the county had not repeatedly published maps showing zoning on the KCPD property that differed from the 1992 ordinance.”
Ultimately, the commissioners concluded that defending the zoning as portrayed in county maps was necessary to mitigate potential legal risks and protect the county from substantial financial liability.
“Under these circumstances, the likelihood of succeeding in defending a decision to recognize only the 1992 zoning (or none) seems poor,” the opinion stated. “The risk to the county of losing a challenge to such a decision could be substantial and potentially devastating.”
Separate opinions reflect differing concerns
In a separate opinion, Commissioners Mike McCurdy and Bill Winfield supported upholding the zoning but expressed concerns about allowing third-party groups like the Watch to challenge longstanding designations. They argued that such challenges could undermine property rights and set problematic precedents.
Vice Chair Kevin Walker and Commissioner Evan Clapper, writing in dissent, agreed with the majority’s conclusions regarding the Watch group’s standing and the lack of evidence of any rezoning of the property in 1999 or 2005. However, they argued that the commission should have followed specific Land Use Code procedures to clarify the zoning or reverted to the 1992 ordinance’s smaller zoning area.
They also argued the reliance on zoning estoppel to be premature, emphasizing that it is a “rare and extraordinary remedy” and that KCPD’s claims required greater scrutiny.
“There are numerous examples of failed zoning estoppel claims with facts relevantly similar to the ones we are considering here,” they wrote.
Walker and Clapper proposed that, if zoning estoppel considerations later rendered the 1992 ordinance unenforceable, the property could have been rezoned accordingly.
Next steps for zoning
With the zoning designation affirmed, the Kane Creek development remains poised to proceed.
Planning and Zoning Director Amy Weiser emphasized at the Dec. 3 hearing the urgent need to adopt a new official zoning map to address lingering ambiguities.
Editor’s note: This story has been updated to correct inaccuracies about the zoning maps and the Grand County Commission’s decision. The 2005 map, which the commission ultimately backed, includes 30 additional acres of highway commercial zoning in different locations than the 1992 ordinance described. The map was a draft presented shortly before a zoning ordinance was passed, but the map tied to that ordinance was lost, along with any text descriptions. The commission affirmed the zoning as depicted on the 2005 map, expanding the highway commercial designation to 140 acres. These updates have been incorporated for accuracy and clarity.
This story was first published by The Times-Independent.
