Board of Adjustments hears appeals regarding Lower Verzuh Ranch Subdivision

The Gunnison Board of County Commissioners gathered with the Board of Adjustment to host a two day meeting to discuss appeals regarding the Major Impact Sketch Plan for Lower Verzuh Ranch subdivision.

The full regular board was present: Chair Laura Puckett Daniels, Vice Chair Liz Smith, and regular members Commissioner John Houck, Andy Tocke, Drew Brookhart, and alternate John O’Neil.

Chair Puckett Daniels called the meeting to order Oct. 21, where the board swiftly approved the minutes of the September meeting as presented and received no public comment.

Puckett Daniels opened the floor to hear and make decisions about Appeal-26-00004, an appeal submitted by Hidden River Ranches Homeowners Association (HOA) and Rest River Ranches HOA of the BOCC’s decision to approve a Major Impact Sketch Plan for the Lower Verzuh Ranch Subdivision. The project aims to subdivide a 450-acre parcel of land near Brush Creek along the east side of Highway 135.

The threshold question was whether the associations could appeal at the sketch-plan stage, not whether the project complied with the Land Use Resolution (LUR) on its merits.

The Associations’ reason for appeal is that the decision aggrieves them and that it imposes a substantial burden on the property and personal rights of the HOAs and their individual members. Both HOAs are made up of property owners adjacent to the project.

The HOAs were represented by Davis Graham and Stubbs LLP, a Denver law firm, though represented in the room by head of property rights practice Brandee Caswell. She said Colorado law recognizes interests such as protection from adverse effects of land-use decisions, and that the LUR permits appeals from decisions on major-impact applications, such as sketch-plan decisions.

The main claim of present harm concerned the way the project was reviewed and the benefits reflected in the approval. The project changed during review, and Caswell argued that referral agencies did not all review the version ultimately approved. In particular, she disputed whether agencies were asked to comment on 301 lots or the possible 602 residencies associated with primary and accessory units. Later discussion confirmed that referral requests referred to the 301 lots.

She argued that the project received priority review and that the essential-housing finding was assumed before it was adequately established, which, from her view, could affect the process and incentives carried into the preliminary plan review. Caswell raised concerns that the resolution’s finding that about 41% of the homes were essential housing conflicted with the LUR’s definitions and the income levels represented by the applicant. She argued that if the finding and related incentives were effectively settled at sketch plan, the appellants might lose the opportunity to challenge. She also said that the proceeding to preliminary plan could impose costs on the appellants if they chose to participate in studies and review based on an approval they believed was flawed.

“If this project proceeds to a preliminary plan, that has to mean something,” said Caswell. “If you say you decided it, it has to mean something. And my fear is that the applicant will say that issue has been finally decided and cannot be revisited. And if that's the case, this is the only chance anyone has to address that.”

The applicant, represented by Marcus Lock, argued that the LUR requires more than disagreement with the review process, that the appellants had to identify a denial of a personal or property right, or a substantial burden or obligation. He said that sketch-plan approval only authorizes filing a preliminary plan and does not authorize construction or impose the claimed impacts.

Lock also argued that the sketch plans are expected to evolve, that approval at one stage does not guarantee approval at the next, and that the detailed review including wildlife, engineering, and other standards would occur later. It disputed that the process had meaningfully harmed the appellants and said the essential-housing incentives and details could still be addressed at the preliminary plan.

The board members generally did not find that the broader impacts listed in the appellants’ letter such as traffic, property values, and impacts on adjoining land had occurred at the sketch-plan stage.

The more difficult issue was whether the essential-housing finding and expedited review created a present burden. The majority of the board emphasized that the resolution included conditions and that preliminary plan review would involve more detailed scrutiny, while others were concerned that the resolution’s finding about essential housing could be ambiguous or reflect a mistake that could carry forward.

The board voted 3-2 that the sketch-plan approval did not deny the appellants a claim of right or impose a substantial burden or obligation.

The board reconvened the next day, Oct. 22, with a quorum and to set the appeal hearing procedure. They heard an appeal from Marc Sarnoff on the approval of the Major Sketch Plan, indicating his standing to appeal as a person aggrieved by the decision and that it imposes a substantial burden or obligation upon him, mainly his water rights. The board focused on water-related arguments raised in the supplemental materials, as agreed at the prior hearing, rather than reopening broader standing arguments. The discussion centered on whether the alleged impacts to Buckhorn water rights and wells were connected to the sketch-plan decision or remained speculative at this early stage.

Sarnoff argued that the project’s water-related impacts could affect Buckhorn residents’ rights and water supply. He cited a 1982 decree requiring 2 cubic feet per second to fill Landy Reservoir No. 1, alleging the reservoir had not been filled since 2025 and that he could enforce the decree through Buckhorn’s covenants. He raised concern that the applicant’s proposed well locations could affect Buckhorn wells through a cone of influence, noting that changes to the Verzuh Young Bafand ditch could reduce water reaching the area and affect seepage-fed wells.

“It’s a potential harm as to where the placement of their wells should be,” Sarnoff said. “We were already experiencing a Stage 2 water restriction at that time.”

Lock, once again serving as the applicant’s attorney, argued that Sarnoff lacked standing because he was not adjacent to the project, did not personally own the water rights at issue, and had not shown a particular injury caused by the sketch-plan approval. He said the applicant would seek a new augmentation plan at a later stage of review, with the water court process designed to protect existing rights, and that any concerns about well impacts or water use could be addressed through that process and the county’s later reviews. He distinguished the ditches at issue, arguing that the proposed augmentation would use different ditches from those at issue in Sarnoff’s claims, and maintained that the alleged harms were not caused by the approval of the exploratory sketch plan.

Sarnoff closed by arguing that neighboring landowners may have standing to challenge the sketch-plan and cited cases in support, including one involving sketch-plan approval. He contended that the county’s Land Use Resolution should give clear notice and apply consistent standards and that the resolution’s definition of “essential housing” did not support the income range being used.

Lock reiterated that Sarnoff had not shown injury, which only allowed the project to proceed to the preliminary plan review. He argued that later review would address and protect water rights, and asked the board to find the appellant lacked standing and dismiss the appeal.

The board voted to find that the sketch-plan approval did not deny the appellant a claim or right or impose a substantial burden or obligation, so the appellant lacked standing, and the appeal was dismissed.