El Paso County is rewriting the code that decides how much discretion its commissioners have over land use. The five commissioners will adopt it. Residents have no ballot measure to reach for; what they have is the November ballot, and the right questions to ask on it.
The first round of written comments on El Paso County’s draft Land Development Code closes at 5 p.m. on Oct. 16, and the county’s consultant says a second round will follow. Residents who have read the 516-page draft keep asking what in it will stop the next unwanted rezoning, or the next decision made at a desk rather than in a hearing. The answer lies less in the draft than in who will approve it.
Who approves the rules
State law gives the power to amend county zoning to one body. Under C.R.S. § 30-28-116, “the board of county commissioners may amend” districts and regulations after the Planning Commission has reviewed the change and after a public hearing. The Planning Commission’s vote is a recommendation, and the commissioners appoint its members. If it recommends against an amendment, the statute requires only “a majority of the entire membership” of the board to pass it anyway, which on a five-member board is three votes.
Residents cannot go around them. Colorado’s constitution reserves the initiative and referendum to “every city, town, and municipality,” and the courts have read that to exclude counties like El Paso that have no home-rule charter. “There is no constitutional right of initiative for electors at the county level,” the Court of Appeals held in 2000. Last year it applied the same reasoning to Delta County landowners who tried three times to force a referendum on a land-use code change. As town residents, Palmer Lake voters could recall the trustees who advanced a Buc-ee’s annexation and require a public vote on future annexations. County voters have no equivalent power over the county’s code.
So the people who will decide how much discretion the Board of County Commissioners keeps are the members of the Board of County Commissioners. Elizabeth Garvin of Clarion Associates, the county’s consultant, told residents at the Woodmoor Barn on Sept. 21 that the code will go to hearings before the Planning Commission and the commissioners early next year.
What the code decides about their power
Three provisions carry most of the weight. The first is the master plan. State law allows a county’s master plan to be “made binding by inclusion in” its zoning regulations. El Paso County’s code does the opposite. Section 2.1.3 declares the plan “advisory only” and says the commissioners retain “considerable discretion in deciding how to apply the Master Plan in making land use decisions.” Rezonings are judged partly on “general conformance” with that plan, a standard with a great deal of room in it.
The second is administrative approval. Under Section 5.3.2(H), “any special use may be acted upon by the PCD Director,” except for a narrow set of cases, and the director, “in his sole discretion,” decides whether the application gets a public hearing at all. The director also decides whether a use the code does not list is similar enough to one it does. The code makes the commissioners “the ultimate interpreter” of what uses are allowed.
The third is the part not yet written. The draft’s chapters on procedures read “[To be drafted in Module 3: Administration and Procedures].” That module will set who is notified of a proposal and which decisions get a hearing. It has not been released.
The record they bring to it
The Independent’s BoardWatch tracker records every vote of the commissioners’ land-use board from November 2021 through Sept. 10: 372 votes, 357 approvals and four denials. Two of the denials were a homeowner’s request to split five acres and Xcel Energy’s regional power line. The other two came on July 23, when the board denied the Highway 83 and Walker Road rezonings 3–2, with Holly Williams, Bill Wysong and Cory Applegate voting to deny and Carrie Geitner and Lauren Nelson voting against denial. On Aug. 27 the board granted Buc-ee’s appeal 4–1, with Mr. Wysong the only vote against. Measured member by member, Mr. Wysong has opposed 14 percent of the items he has voted on; each of his four colleagues, 3 percent or less. The Walker Road landowner has since refiled for the same 15 acres, and on Thursday the board takes up a Highway 83 rezoning that would halve the minimum lot size on 47 acres.
At the Buc-ee’s hearing, Ms. Geitner told the room: “We can’t change the rules mid-game if we’re not getting our desired outcome.” As a statement of the law, it was correct: a quasi-judicial board applies the code it has. Between hearings, though, the rulebook is open, and it is open to one set of hands. Residents may comment on the rewrite, testify about it and ask for changes. They cannot adopt a word of it. That power rests with Ms. Geitner and her four colleagues, the same five people whose discretion the new rules will govern. The next time a packed room is told the board must follow the code as written, it will be a code the board adopted for itself. Declining to change the rules mid-game is a principle. Setting them between games, for your own use, is a privilege, and voters are entitled to ask how it will be used.
The case for discretion
There is a fair argument on the other side. Ms. Garvin told the Woodmoor audience that sending every approval to the commissioners would keep their meetings running until three in the morning, and that the goal is clear rules, not more or fewer administrative approvals. Landowners have rights too, and a rezoning applicant is entitled to a decision on the criteria rather than on the size of the crowd.
Nothing here asks for more hearings on everything. It asks for fewer open-ended exits. A binding master plan and firm rezoning criteria protect applicants as well as neighbors, because both can read in advance what the answer will be. That is the predictability the county’s consultant says the rewrite is for.
What to ask for
Rezonings are quasi-judicial, so a candidate should not promise a vote on a pending application; that decision has to rest on the record made at the hearing. The code is different. It is legislation, and a commissioner or candidate can say in public today what it should contain:
- Will you make the master plan binding, as state law permits, and repeal the “advisory only” clause?
- Will you require a public hearing, with notice to neighbors, for special uses and use determinations above a set size, instead of leaving that to the director’s sole discretion?
- Will you release Module 3 with a comment period as long as the one given to Modules 1 and 2, before any adoption hearing is scheduled?
Tri-Lakes voters have less leverage over those answers than they may assume. Commissioners are elected by district. The towns of Monument and Palmer Lake sit in District 3, whose seat is not on this year’s ballot. Woodmoor, Gleneagle and Black Forest sit in District 1, where the seat is open because Ms. Williams is term-limited; Ryan Graham and Gavin Rainey are on the ballot, and Matt Grubesic is running as a write-in. Every reader can comment on the draft in the first round, which closes Oct. 16, and again in the second. District 1 voters can also put these three questions to the people asking for their vote.
The board that adopts the new code will be deciding how much power to leave itself. Voters choose that board, and a commissioner who wants the job can say before Nov. 3 how much discretion he or she will trade for rules that residents and applicants can rely on.
Sources & further reading
The Independent’s own coverage: BoardWatch: El Paso County land-use vote tracker · Commissioners Grant Buc-ee’s Appeal, 4-1 · At Highway 83 and Walker Road, a Test of the County’s Own Rules · Denied in July, Walker Road Rezoning Returns as RM-12 and RS-5000 · A Yes Vote with a Warning: The Needles Rezoning Goes to Commissioners · At the Woodmoor Barn, Residents Press the County’s Code Consultant on Density and Rezonings · Matt Grubesic Enters the District 1 Commissioner Race as a Write-In · Choose Wisely
Law: C.R.S. § 30-28-116 · C.R.S. § 30-28-106 · Colo. Const. art. V, § 1 · Dellinger v. Board of County Commissioners of Teller County (Colo. App. 2000) · Colorado Politics on Bajda v. Stephenson (Colo. App. 2025)
County record: Land Development Code, Chapter 2 (§§ 2.1.3, 2.2.1) · Land Development Code, §§ 5.3.2, 5.3.5, 5.3.6 · Draft Land Development Code, Modules 1 & 2, and comment portal · Land Development Code update project website · El Paso County District 1 Commissioner · El Paso County District 3 Commissioner
Methodology
Vote counts come from The Independent’s BoardWatch tracker, which compiles every recorded vote of the Board of County Commissioners (Land Use) from the county’s minutes and voting record, from Nov. 16, 2021, the earliest meeting the county publishes under that agenda, through the Sept. 10, 2026 meeting. The 372 votes include appeals and motions to deny that failed; the 357 approvals include the Buc-ee’s appeal. The member percentages are the tracker’s scorecards, which count each member’s position on the item rather than on the wording of the motion. One Sept. 10 vote is marked unverified in the tracker until its motion is confirmed against the minutes. The legal provisions were read in the statute text, the Court of Appeals’ 2000 opinion and Chapter 2 of the county code; the 2025 Delta County ruling is described from Colorado Politics’ report of it. The page reference for Module 3 is to the September version of the draft the county is serving now, where Chapter 19, Procedures, falls on page 356 of the PDF.
