HomeMy WebLinkAbout20120396.tiff HEARING CERTIFICATION
DOCKET NO. 2012-07
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW
PERMIT#1683 FOR AN EXPANSION OF A NON-CONFORMING USE (FISHING AND
HUNTING CLUB TO 70 MEMBERS AND THE FOLLOWING ADDITIONAL
RECREATIONAL USES: BOATING, SCUBA DIVING, WATER SKIING, SAILING,
KAYAKING, CANOEING, AND OVERNIGHT CAMPING IN THE A (AGRICULTURAL)
ZONE DISTRICT— HIGHLAND DITCH COMPANY
A public hearing was conducted on February 8, 2012, at 10:00 a.m., with the following present:
Commissioner Sean P. Conway, Chair
Commissioner William F. Garcia, Pro-Tem
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Commissioner Douglas Rademacher- RECUSED
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Brad Yatabe
Planning Department representative, Michelle Martin
Public Works representative, David Bauer
Health Department representative, Lauren Light
The following business was transacted:
I hereby certify that pursuant to a notice dated December 9, 2011, and duly published
December 14, 2011, in the Fort Lupton Press, a public hearing was conducted to consider the
request of the Highland Ditch Company, for a Site Specific Development Plan and Use by
Special Review Permit #1683 for an Expansion of a Non-conforming Use (fishing and hunting
club to 70 members and the following additional recreational uses: boating, scuba diving, water
skiing, sailing, kayaking, canoeing, and overnight camping in the A (Agricultural) Zone District.
Brad Yatabe, Assistant County Attorney, made this a matter of record.
Commissioner Rademacher recused himself from the hearing, as he owns shares of stock in
the Highland Ditch Company.
Michelle Martin, Department of Planning Services, presented a brief summary of the proposal,
entered the favorable recommendation of the Planning Commission into the record as written,
and gave a brief description of the location of the site. She reviewed the history of the
application starting in November, 2008, followed by a lawsuit to determine the rights of the
Mulligan Fishing and Gun Club, and the subsequent work to finalize agreements to lease
memberships for the approved uses. She stated the applicant has been diligently working with
the referral agencies and surrounding property owners, and as a result of a neighborhood
meeting, many concerns have been addressed. She further stated the property is not within an
Intergovernmental Agreement (IGA) area; however, it is within the three-mile referral area for
the Towns of Berthoud and Mead, and the City of Longmont, and she reviewed their comments
for the record. Ms. Martin submitted an e-mail, marked Exhibit F, documenting communication
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between the applicant and the Town of Mead, and she also reviewed the surrounding land uses
for the record. She indicated the letters of concern have decreased since the initial referral
responses, listed the various concerns for the record, and displayed an aerial parcel map
showing the accesses from County Road (CR) 7, site improvements, easements, and
surrounding uses.
David Bauer, Department of Public Works, stated the access easements are already in place,
the floodplain area is managed, the proposed improvements are outside of the floodplain
boundary, and he has no further concerns with the proposal.
Lauren Light, Department of Public Health and Environment, stated bottled water and portable
toilets will be allowed since the proposal is for a seasonal use. She stated the old privy will be
abandoned, so Condition of Approval #3 may be deleted; the applicant has submitted a Waste
Handling Plan, so Condition of Approval #4 may be deleted, noise levels will be restricted to
those allowed in the Non-specified Zone, and Development Standards #3 through #12 are
typical for recreational facilities.
Todd Hodges, Todd Hodges Design, LLC, represented the applicant and stated this permit will
allow for up to 70 members and he reviewed the area map of the applicant's presentation,
marked Exhibit E, showing the recorded easement locations, as well as access from CR 7,
which has been in place since 1922 and confirmed through the court case. Mr. Hodges stated
the main use is water storage for irrigation, and the plat has been modified to address various
referral requests. He stated the court case found the hunting and fishing rights belong to the
Mulligan Fishing and Gun Club ("Mulligan"); however, the remaining recreational rights belong
to the Highland Ditch Company ("Highland"), and they share the access, which is deeded to
Highland and prescriptive to Mulligan. Mr. Hodges stated, since the court case, both groups
have worked together to negotiate a long-term lease to be executed if this case is approved,
and membership will be extended to adjacent property owners and managed by Mulligan
through the lease. He stated Highland has worked diligently with the various referral agencies
to complete Conditions #2 through #8 and he requested the Conditions be removed. He also
clarified water skiing will not take place when Mulligan is leasing the site for fishing and hunting
activities; however, the applicant wishes to retain the opportunity for skiing in the future.
In response to Commissioner Kirkmeyer, Mr. Hodges stated Highland owns the land and water,
and Mulligan owns the hunting/fishing rights and the club house. He stated the recreational
uses offset the costs of maintaining the dam and will create more value in the future.
Responding further to Commissioner Kirkmeyer, Ms. Martin stated Planning Services worked
with legal staff and established the non-conforming use in 2008, since the property owner
received compensation for hunting/fishing; however, the interpretation of the Code is now
different and would currently be considered a Use by Right. Mr. Hodges stated the beach, dock
and ramp, and other recreational uses are a Use by Right; however, the commercial component
requires the USR. He further stated the access easement was established in 1922 for Mulligan
hunting and fishing activities, as well as maintaining Highland Reservoir. Responding to
Commissioner Garcia, Mr. Hodges stated Mulligan made it very clear they had no intension of
allowing water skiing at this time; however, Highland wants to preserve the use as a future
option.
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Rhett Corning, President of Mulligan Fishing and Gun Club, stated the Club was formed in
1909, and they have been working diligently with Highland on an Agreement that preserves their
interests and expands the membership, which will be open to homeowners in the area. He
explained Mulligan will be responsible for managing the site; however, this application will
preserve the recreational rights for Highland. In response to Commissioner Conway,
Mr. Corning stated the Lease Agreement is for an initial term of five years, with an automatic
renewal for 25 years.
Mike Mitchell, Hunter's Cove resident and member of Mulligan Fishing and Gun Club, stated he
previously objected to the water skiing activities; however, the applicant has made great
progress, and a majority of the 30 additional members will be adjacent property owners so there
will not be a significant increase in traffic on CR 7 since they will have direct access to the lake
from their properties. He further stated the noise and activity concerns have been resolved.
Amy Bullock, Hunter's Cove (Lot 1) resident, stated they are a land member of Mulligan and are
in full support of the applicant. She stated she is a licensed appraiser and she believes an
approved lease and direct access to the lake creates a lot more value for the adjacent property
owners, the Town of Mead, and Weld County.
Frank Grimaldi, Hunter's Cove resident, stated his main objection was the water skiing;
however, he does support the current application and would be interested in a membership, if
extended. He explained, in 2008, the ski boats were operated at high rates of speed while
under the influence of alcohol, they were often overloaded, the occupants played loud music,
and there were instances of public urination. Mr. Grimaldi stated Highland wants to retain the
potential for water skiing when the lease ends in 25 years; however, he proposed the Board
deny skiing now and consider it at the end of the lease, based on the desires of future residents
in the area. If approved, he stated it will be necessary to pay for law enforcement to ensure the
previously listed behavior does not take place.
Steve Stanley, Planner for the Town of Mead, stated the Board of Trustees does support the
application, with the exception of water skiing. In response to Commissioner Kirkmeyer,
Mr. Stanley stated the Town did not take a position on the preferred access, since both are
legally recognized. Responding to Commissioner Garcia, he stated the opposition to water
skiing was based on the complaints received in the past.
Larry Butler, Hunter's Cove resident closest to the improvements, stated the access easement
was originally for the Mulligan Club, and Chair Conway stated a subsequent court proceeding
ruled it as a joint access for use by both parties. In response to Commissioner Kirkmeyer,
Mr. Butler stated he supports the hunting, fishing, and recreational activities; however, he just
wants to ensure the easement does not grant new encroachment on his property. Mr. Yatabe
stated approval of this application will not affect the private use and any water line
improvements would require agreement of the adjacent owner(s).
Jim McKinstry, 30-year owner of land to the northeast, stated the summer of water skiing was a
disaster. He stated his property will one day be developed and skiing should not be allowed.
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Mr. Hodges stated he understands the concerns expressed; however, the potential for all
recreational rights is vital, and there have been no further issues since the violation citation. He
stated the Development Standards address the noise levels, the proposed use will not create a
major change to the property, although it may result in a positive increase in property values in
the area. Mr. Hodges stated Mulligan will not allow water skiing during its leased oversight of
the recreational rights, and there is a number to call with any complaints. He further stated, in
the future, the property may become a public facility if surrounded by the Town of Mead, and the
potential for skiing is important. In response to Commissioner Kirkmeyer, Mr. Hodges stated the
lease agreement allows Mulligan complete control of the recreational activities, and the hours
and seasons for use by both Mulligan and Highland are now compatible.
Ken Lind, Attorney, represented the applicant and stated the north access, from CR 32, is not a
general access, rather, it is restricted to use by Highland Ditch for operations and maintenance
of the reservoir. The second access, referenced on the south end of the Hunter's Cove
Annexation plat from CR 7, refers to the 15-foot easement which has existed since 1923, and
adds 10 feet in width to the north from Lots 15, 16, and 17 for ingress/egress. He explained the
entire access road is a deeded easement in favor of the Highland Ditch Company and does
make reference to access for the benefit of the Mulligan Fishing and Gun Club. Mr. Lind stated
the court case reviewed the access and recreational rights; there is a prescriptive easement for
the fishing/hunting club and a deeded easement to Highland for any purpose. He stated the
original 1923 deed did not designate a specific width, so the court determined a width of 15 feet
and Mr. Butler's Warranty Deed is subject to all previous easements. He further stated three
homeowners have constructed fences recognizing the new easement boundary and there are
no restrictions on the use of the easement. He explained all recreational rights owned by
Highland will be leased to Mulligan so it becomes their prerogative to restrict skiing until such
time as they cease hunting and possibly open the use back up to skiing. Responding to further
questions, Mr. Lind stated there are currently 35 members, and he agreed the commercial
operation does create the need for a USR, which does create the flexibility to allow skiing in the
future.
Commissioner Kirkmeyer expressed concern with the Non-conforming Use (NCU), since
hunting and fishing should be allowed as a Use by Right like many other unincorporated
properties throughout the County. Mr. Hodges stated even though water skiing will be restricted
at this time, both parties recognize the importance of Development Standard #22, which will
help protect the reservoir from invasive species due to the use of fishing boats. He stated the
status of the NCU is unique due to the deeded rights. Mr. Yatabe stated it is within the Board's
purview to interpret the Code as to whether money transactions in exchange for hunting and
fishing rights create the need for a USR. He further stated, since the NCU is in place, it would
be a matter of public notice to nullify it. Commissioner Kirkmeyer stated the court case affirmed
the right to hunt and fish, and she will not support this application if the need for an NCU for
hunting and fishing is affirmed through this USR. Commissioner Long agreed there are many
private citizens who rent/lease their private hunting/fishing rights, and rather than expanding the
NCU, he stated it would be more appropriate to just acknowledge the existence of the NCU and
permit the additional uses through the USR. Mr. Hodges indicated no concern with simply
recognizing the existing NCU and then defining the new uses and membership amount through
the USR so that the two combined permits result in a total of 70 members. Ms. Martin reiterated
the violation started with complaints about the water skiing; the expansion of an NCU is a
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defined use under a USR; and, if denied, the existing uses under the NCU will still be there.
Commissioner Kirkmeyer reiterated she understands staff followed through on the interpretation
of the Code back in 2008; however, the current Board has a different interpretation of hunting
and fishing being allowed as a Use by Right, regardless of whether the rights are leased, and
she wants to eliminate the NCU from the USR. Mr. Hodges indicated agreement.
Commissioner Kirkmeyer moved to amend the permitted title to delete the reference to
expanding the NCU and just state, "A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY
SPECIAL REVIEW PERMIT #1683 FOR THE FOLLOWING RECREATIONAL USES:
BOATING, SCUBA DIVING, WATER SKIING, SAILING, KAYAKING, CANOEING, AND
OVERNIGHT CAMPING) IN THE A (AGRICULTURAL) ZONE DISTRICT," and Commissioner
Long seconded the motion, with direction to staff to vacate the NCU file since the property is no
longer subject to the old interpretation. The motion carried unanimously. Ms. Martin stated the
NCU allowed for 37 members and an additional 33 members were added through the USR for a
total of 70 members. Mr. Hodges confirmed the request for 70 members and Commissioner
Kirkmeyer stated Development Standard #30 is adequate, since it only pertains to the USR.
Based on direction received from the Board, Ms. Martin recommended deleting Development
Standard #31. Commissioner Garcia requested a review of the NCU file prior to deletion.
Commissioner Kirkmeyer commented although it has been the practice of the Board to delete
Conditions which have been met, she would prefer to leave them in as an acknowledgment that
they are a requirement, and in the event of future non-compliance, they may be cited as a
means of enforcement. The Board agreed and expressed appreciation to the applicant for
diligently meeting the requirements.
Mr. Yatabe stated the NCU addresses the membership's right to hunt and fish as a non-
landowner, which is further supported by the court case. Upon review of the file, he
recommended the case be voided at the administrative level, based on the current interpretation
of the Code. Commissioner Kirkmeyer moved to amend Development Standard #31 to add:
"until such time that NCU-481 is voided at the direction of the Board of Weld County
Commissioners." The motion was seconded by Commissioner Garcia, and it carried
unanimously.
In response to Chair Conway, Mr. Hodges stated he and the applicant have reviewed, and
agree to abide by, the Conditions of Approval and Development Standards, as proposed and
modified.
Commissioner Kirkmeyer moved to approve the request of the Highland Ditch Company for a
Site Specific Development Plan and Use by Special Review Permit #1683 for the following
Recreational Uses: boating, scuba diving, water skiing, sailing, kayaking, canoeing, and
overnight camping, in the A (Agricultural) Zone District, based on the recommendations of
Planning staff and the Planning Commission, with the Conditions of Approval and Development
Standards as entered into the record. Her motion included amending the title of the permitted
use throughout the Resolution as previously cited, and amending Development Standard #31 to
add: "until such time that NCU-481 is voided at the direction of the Board of Weld County
Commissioners." The motion was seconded by Commissioner Garcia, who commented the
Conditions of Approval and Development Standards will mitigate the concerns expressed by the
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area residents. Commissioner Kirkmeyer thanked everyone in attendance for providing
testimony indicating that the previously opposing sides have worked together to make a positive
outcome for current and potential future neighborhood members. Commissioner Conway
agreed. There being no further discussion, the motion carried unanimously and the hearing was
completed at 12:05 p.m.
This Certification was approved on the 13th day of February, 2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: . 6
Sean P. C way, Chair
Weld County Clerk to the Board tit
/� �J William F. Garcia, Pr -Tem
BY: Jerl /JA-n 0
Deputy Clerk to the Boar. oconn ;1ii �� �� teA__
,t\ ]E ze, Barbra Kirkmey r
Y{ ��;, .� David E. Long
IW�� '6u.o`
E, 1 RECUSED
,tea �� Douglas Rademacher
2012-0396
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EXHIBIT INVENTORY CONTROL SHEET
Case USR#1683 - HIGHLAND DITCH COMPANY
Exhibit Submitted By Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
Summary of Hearing (Minutes dated 1/3/2012 and
C. Planning Commission 8/4/2009)
D. Applicant Waste Handling Plan
E. Applicant PowerPoint presentation
F. Planning Staff E-mail Correspondence with Mead, dated 2/7/2012
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