HomeMy WebLinkAbout20110118.tiff HEARING CERTIFICATION
RE: VIOLATIONS OF THE WELD COUNTY CODE -ZONING AND BUILDING INSPECTION
A public hearing was conducted on January 11, 2011, at 10:00 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Sean P. Conway, Pro-Tern
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher- EXCUSED
Also present:
Assistant County Attorney, Stephanie Arries
County Attorney, Bruce Barker
Acting Clerk to the Board, Tonya Disney
Planning Department representative, Bethany Salzman
Planning Department representative, Peggy Gregory
Planning Department representative, Tom Parko
Building Official, Ken Swanson
The following business was transacted:
I hereby certify that a public hearing was conducted to consider whether to authorize the County
Attorney to proceed with legal action against the individuals named for violations of the Weld County
Zoning Ordinance, Cases were heard as follows:
ZCV #1000135 - CARPIO: At the request of staff, Commissioner Garcia moved to continue
ZCV#1000135 against Sandra Carpio to February 8, 2011, at 10:00 a.m. The motion was
seconded by Commissioner Long, and it carried unanimously.
BCV#1000096-LEONARDSON: Peggy Gregory, Department of Planning Services, presented the
case report for the record and pursuant to the case file, this property is in violation of various
sections of the Weld County Code, as detailed in staffs case summary. To bring the property into
compliance, a permit application and all applicable documentation shall be submitted for the
installation of two air conditioner units, fees paid, all inspections completed, and the permit issued.
Staff recommends this matter be referred to the County Attorney's Office but delay legal action for
30 days.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
Commissioner Garcia moved to refer BCV #1000096 against Melissa Leonardson to the County
Attorney for legal action, with the instruction to delay action upon such referral until
February 11, 2011,to allow adequate time for the property owner(s)to bring the subject property into
compliance by submitting a permit application and all documentation for the installation of two air
conditioner units, all fees paid, inspections completed and permit issued by the Department of
Planning Services staff. The motion was seconded by Commissioner Long, and it carried
unanimously.
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January 11, 2011 2011-0118
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BCV#1000152 -ORTEGA: Ms. Gregory presented the case report for the record and pursuant to
the case file,this property is in violation of various sections of the Weld County Code, as detailed in
staff's case summary. Ms. Gregory received a phone call from Mr. Ortega's son stating that his
father was out of town and wouldn't be able to attend the violation hearing. To bring the property
into compliance, a permit application and all applicable documentation shall be submitted for the
addition to the single family dwelling, fees paid, all inspections completed, and the permit issued.
Staff recommends this matter be referred to the County Attorney's Office but delay legal action for
30 days.
In response to Commissioner Garcia, Ms. Gregory stated she believed 30 days would be sufficient
for Mr. Ortega to retain the necessary permits.
(Commissioner Conway is now present)
Commissioner Long moved to refer BCV#1000152 against Anselmo Ortega to the County Attorney
for legal action, with the instruction to delay action upon such referral until February 11, 2011, to
allow adequate time for the property owner(s) to bring the subject property into compliance by
submitting a permit application and all documentation for the addition to the single family dwelling,
fees paid, inspections completed and permit issued by the Department of Planning Services staff.
The motion was seconded by Commissioner Garcia, and it carried unanimously.
ZCV #1000084 - MOSSBERG FAMILY FARM LLP/ASH LANE DAIRY: Bethany Salzman,
Department of Planning Services, presented the case report for the record and pursuant to the case
file, this property is in violation of various sections of the Weld County Code, as detailed in staffs
case summary. On October 12, 2010,this violation was brought before the Board and was referred
back to the Department of Planning services to allow the Mossberg family time to decide what
needed to be done on the property. Since the October violation hearing the RV/Camper-Trailer has
been removed; however, the mobile home is still present, thus the property is still in violation. To
bring the property into compliance, the mobile home needs to have a re-justification in order to
remain on the property. Staff recommends this matter be referred to the County Attorney's Office
but delay legal action for 30 days.
Jan Sherrod-Mossberg, property owner, stated they have been contemplating whether they should
demolish the mobile home or have her brother occupy the mobile home since they have no
employees that need to occupy it due to the dairy not being in operation. She further stated she
believed everything had been arranged to allow her brother to occupy the mobile home; however,
she then received a letter from staff stating they needed to re-justify the mobile home.
In response to Chair Kirkmeyer, Ms. Salzman stated there needs to be a one-page letter stating the
intent of the mobile home and a Certificate of Occupancy that Ms. Sherrod-Mossberg could either
have sent to her via mail or could obtain one from the Department of Planning Services. She further
stated staff will need this information in order to re-justify the mobile home which would allow her
brother to continue occupying the mobile home.
Commissioner Conway confirmed with Ms. Sherrod-Mossberg that her brother is living in the mobile
home and helping on the farm and Ms. Sherrod-Mossberg concurred. In response to
Commissioner Conway, Ms. Salzman concurred that 30 days would be a sufficient amount of time
for the Mossberg's to accomplish the one page letter and the Certificate of Occupancy.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
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Commissioner Garcia moved to refer ZCV#1000084 against Mossberg Family Farm LLP/Ash Lane
Dairy to the County Attorney for legal action, with the instruction to delay action upon such referral
until February 11, 2011, to allow adequate time for the property owners to submit the one page letter
stating the intent of the mobile home and obtain a Certificate of Occupancy from staff. The motion
was seconded by Commissioner Conway, and it carried unanimously.
ZCV #1000093 — HSBC BANK USA: Ms. Salzman presented the case report for the record and
pursuant to the case file,this property is in violation of various sections of the Weld County Code, as
detailed in staff's case summary. Certified mail was sent on November 11, 2010, and received
signed December 9, 2010. To bring the property into compliance,the mobile home that is currently
situated on the property shall be removed due to no zoning or building permits being obtained.
Furthermore, all miscellaneous debris and household trash shall also be removed from the property.
Staff recommends this matter be referred to the County Attorney's Office for immediate legal action.
In response to Commissioner Conway, Ms. Salzman stated there has not been any contact with the
property owner;therefore, staff recommends the matter be referred to the County Attorney's Office
for immediate legal action.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
Commissioner Conway moved to refer ZCV #1000093 against HSBC Bank USA to the County
Attorney for immediate legal action. The motion was seconded by Commissioner Long, and it
carried unanimously.
ZCV#1000057 - GARCIA: Ms. Salzman presented the case report for the record and pursuant to
the case file, this property is in violation of various sections of the Weld County Code, as detailed in
staffs case summary. Ms. Salzman stated that Mr. Garcia lives out of town and has faxed in a
statement of authorization for Ramon Macias to act on his behalf. She further stated there are
multiple dwelling units on the property that need to be removed; however, Mr. Garcia has been
working with Kim Ogle, Department of Planning Services, to divide the property into two lots thus
having applied for a Recorded Exemption (RE) as well as a Subdivision Exemption (SE). To bring
the property into compliance, the plats for the RE and the SE shall be accepted and then recorded
following the completion of all Conditions of Approval by Staff. Staff is recommending this matter be
referred to the County Attorney's Office with a delay of action for 30 days.
In response to Commissioner Conway, Ms. Salzman stated it is unknown how long some of the
structures have been on the property because there have been no permits obtained, as well as no
tax records with the Assessor's Office.
In response to Commissioner Garcia, Ms. Salzman stated the violation was initiated after Mr.Garcia
visited the Department to inquire about the RE and SE; staff visited the property to conduct an
inspection and noticed the additional dwelling units on the property.
In response to Chair Kirkmeyer, Stephanie Arries, County Attorney's Office, stated the letter of
authority that was faxed in by Mr. Garcia giving Mr. Macias permission to act on his behalf was
sufficient. Ms. Salzman stated staff did compare the signature of Mr. Garcia to other documents that
have been retained in the past and it does match what is on file.
Ramon Macias, representative for Mr. Garcia, property owner and Bertha Lopez, Department of
Human services, translator, stated Mr. Garcia has had several different situations that have come up
and he was not aware of all that needed to be done on the property until yesterday,
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January 10, 2011. Chair Kirkmeyer stated she believes that Mr. Garcia is indeed aware of what
needs to be done on the property due to staff having continual contact with him since June, 2010.
Tom Parko, Department of Planning Services, stated there were several mobile homes on the
property most of which have been removed, and staff is now waiting to hear from the water
department on the septic systems which would then complete the Condition of Approval. In
Mr. Garcia's faxed letter dated January 11, 2011, he stated, he has submitted two documents of
septic units and John Brunner is working on the third. The letter further states the water department
has deemed one well to be adequate; however the RE will need to be completed before the
inspection of the other two wells can be completed to determine if there are any water issues. Mr.
Parko stated the Department would not be opposed if the violation was referred back to staff.
Commissioner Garcia moved to refer ZCV#1000057 against Joel Garcia back to the Department of
Planning Services. The motion was seconded by Commissioner Long, and it carried unanimously.
ZCV#1000123-GAONA/GUTIERREZ: Ms. Salzman presented the case report for the record and
pursuant to the case file, this property is in violation of various sections of the Weld County Code, as
detailed in staffs case summary. Ms. Salzman stated the Department has received numerous
anonymous complaints indicating many items are being brought onto the property. To bring the
property into compliance, the Noncommercial Junkyard shall be removed and all commercial
business dealings shall cease. Staff is recommending the matter be referred to the County
Attorney's Office with a delay of action for 30 days.
In response to Chair Kirkmeyer, Ms. Salzman stated staff would agree to have the matter be
referred to the County Attorney's Office with a delay of action for 45 to 60 days.
Joe Gaona, property owner, stated he and his wife recently lost their home which included a
mechanic shop which Mr. Gaona owned. After losing the home and business Mr. Gaona indicated
he needed a place to store the vehicles that were in his possession, so he spoke with Ms. Salzman
and inquired about screening the property; however, he was told he could screen the property but
would not be able to keep the vehicles on the property that did not belong to him. Mr. Gaona stated
many of the vehicles belong to his customers that are currently in Mexico and most likely will not be
back in Colorado for a few months. He further stated there are two mobile homes on the property
one which is being used for storage and the other that he and his family were living in until his
conversation with Ms. Salzman who informed him they could not reside on the property.
Chair Kirkmeyer stated the mobile home that was being used for storage would need to be removed
from the property.
In response to Commissioner Conway, Mr. Gaona stated his restricted income and the colder
weather have prevented him from completing the fence, and he requested an additional three
months to finish the fence and allow his customers time to claim their vehicles.
Commissioner Long moved to refer ZCV#1000123 against Rita Gaona and Tony Gutierrez to the
County Attorney for legal action, with the instruction to delay action upon such referral until
April 11, 2011, to allow adequate time for the property owner(s)to finish installing screening on the
property, and remove all derelict vehicles including the mobile home. The motion was seconded by
Commissioner Conway, and it carried unanimously.
ZCV#1000122-HALEK: Ms. Salzman presented the case report for the record and pursuant to the
case file, this property is in violation of various sections of the Weld County Code, as detailed in
staff's case summary. Ms. Salzman stated the Halek's have converted the single family dwelling
unit into a duplex, as well as converted the shop area into a two bedroom unit,without obtaining any
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permits. The Halek's have asked one of the tenants to vacate one of the duplex units and assume
the other tenant will be moving out as well. Ms. Salzman further stated the Halek's are residing in
the two bedroom shop unit at this time due to a delay in obtaining a Certificate of Occupancy for a
home they are building in Boulder County. To bring the property into compliance,the shop needs to
either be returned to its original purpose of being a shop or a Recorded Exemption (RE)application
will need to be completed and submitted to the Department to initiate the process of splitting this
parcel. Ms. Salzman stated the Halek's indicated they would like to temporarily remain living in the
shop until the building of their home in Boulder is complete. The property has been inspected and
the existing septic systems are sufficient for both the single family dwelling and the shop. Staff is
recommending this matter be referred to the County Attorney's office with a delay of action for 30
days.
Milan Halek, property owner, stated he and his wife Marie Halek are in the final stages of building a
home which is located in Boulder County. He further stated they had planned to have a Certificate
of Occupancy for their new home at the end of December, 2010; however,they have not been able
to have the final walk through completed as of yet. Mr. Halek further stated they bought the Weld
County property at an auction and later discovered they had been misinformed on several details
concerning the property,which have been discovered throughout the years. Furthermore, Mr. Halek
stated if they are granted the extension from the Board, they will be able to complete the final details
of their home in Boulder County, thus being able to move from of the Weld County property which
would then close the violation against them.
Mr. Halek stated he is anticipating being in their new home within 30 days; however, with the many
delays they have already encountered he requested a 60-day extension regarding the violation. In
response to Chair Kirkmeyer, Mr. Halek confirmed he understood once he and his wife moved out of
the shop they would not be able to rent that unit out without pursuing the RE. In response to
Commissioner Garcia, Mr. Halek stated there is water, electricity and a septic system in the shop
which has also all been inspected and approved.
Commissioner Conway moved to refer ZCV#1000122 against Milan and Marie Halek to the County
Attorney for legal action,with the instruction to delay action upon such referral until March 11, 2011,
to allow adequate time for the property owners to finish the building requirements of their new home
in Boulder County and vacate their residence in the shop structure. The motion was seconded by
Commissioner Garcia, and it carried unanimously.
ZCV#1000163-GUTIERREZ: Ms. Salzman presented the case report for the record and pursuant
to the case file, this property is in violation of various sections of the Weld County Code, as detailed
in staff's case summary. Ms. Salzman stated they received a phone call from the Sheriff's Office
stating they had received a complaint about horse racing taking place on the property. A Sheriffs
Deputy did visit the site and observed approximately 150 to 175 people on the property. Staff has
also received other complaints about horse racing on the property; however,they have been unable
to validate any horse races. To bring the property into compliance, a Use by Special Review(USR)
application shall be completed and submitted, or future rodeo events shall cease. If the intent is to
cease the events, then a letter shall also be submitted to staff stating no future events will be
conducted on the property. Staff is recommending this matter be referred to the County Attorney's
office for immediate legal action.
Martin Gutierrez, property owner, stated he spoke with the Deputy when he came out to the property
and explained that they are training race horses and were not having a rodeo. He further stated he
was told that he could continue to hold these events, or trainings, as long as there were not more
than 350 people. Mr. Gutierrez stated the time the Deputy came to the property there were only 45
cars and 105 people. He stating there is never more that 200 people on the property, he has trained
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horses for many years and has never had complaints, and he does not have rodeos on the property.
He further stated because there are not many race tracks or jockeys in the area, he invites family
members and friends to train their animals with the same jockey. Mr. Gutierrez invited the Board,
along with staff,to his property anytime to take pictures of the trainings. He also stated he keeps his
property very clean from any trash.
In response to Commissioner Garcia, Mr. Parko explained for a horse training facility Mr. Gutierrez
would need to apply for an USR permit that would allow a recreational facility and would need to
have some form of counting device to monitor the amount of traffic entering the property. Mr. Parko
explained that Mr. Gutierrez did apply for an USR permit in 2004, which was denied due to non
compliance with Section 23-2-230.B.
Commissioner Long stated he was present when Mr. Gutierrez applied for the USR in 2004 and it
sounds like the way things are being handled now are different than the way they were being
handled in 2004. Commissioner Long further stated that he would be inclined to dismiss this matter
due to the fact it is hard to separate racing horses for sport and competition from training the horses
for racing.
In response to Chair Kirkmeyer, Mr. Gutierrez stated the training usually takes place during warmer
weather and on the weekends. Mr. Gutierrez reiterated he does allow others to use his property for
training purposes as well.
In response to Commissioner Garcia, Mr. Gutierrez stated he believes he would be able to keep the
amount of vehicles involved below 30; however, he cannot control who may stop and watch the
training.
Chair Kirkmeyer stated the case summary states part of the violation is that this is a commercial use
and Mr. Gutierrez has also mentioned that he allows others to use his property as a training facility
as well. Mr. Gutierrez responded by stating that he does not board others horses and he does not
charge for the other individuals to use his property, therefore, he does not feel it is a commercial
use.
Mr. Gutierrez stated he has a large family and there are times when he is the host home for special
"family events" at which time there will be more than 30 cars; it doesn't only happen when he is
training. After discussion, the Board determined it is not fair to shut down the larger training
activities that take place in the County; however, when there is an adverse impact on the area the
situations need to be addressed. It was further discussed that Mr. Gutierrez needs to attempt to
keep the amount of vehicles to a maximum of 30, and if he is planning on having a larger event he
should contact his neighbors to inform them of what is taking place on his property.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
Commissioner Garcia stated he would like to take Mr. Gutierrez at his word, that he is willing to
follow the direction of the Board. He further stated he does not feel it is fair to refer the matter to the
County Attorney's office for immediate legal action and not give Mr. Gutierrez a chance to follow the
direction of the Board; however, he does not know if the right direction is to dismiss the matter
altogether. He would like to refer the matter to the County Attorney's office with a delay of action for
60 days.
Commissioner Long stated he would like to move to dismiss the matter due to the fact that if the
Board shuts Mr. Gutierrez down he feels they will need to shut down all the larger training events.
He further stated if a dismissal was to be considered it does not mean that if it is proven in the future
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January 11, 2011 2011-0118
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that Mr. Gutierrez truly has a commercial activity on his property the matter cannot come back to the
Department and be heard by the Board again. Commissioner Conway stated he would support a
motion to dismiss, with the understanding that Mr. Gutierrez will reach out to his neighbors and
explain the activities that he is conducting.
Chair Kirkmeyer stated she would be voting against the motion of a dismissal, further stating they
cannot go around the entire County and enforce all of the code; however, when there is adverse
impacts on the surrounding area the Board needs to take that into consideration and she feels this is
an example of an activity that has had an adverse impact on both the neighbors and the traffic in the
area.
Commissioner Long stated there obviously is not going to be a compromise; therefore, he would
recommend the matter be referred back to Staff in the hopes they can work with Mr. Gutierrez to
come up with other alternatives.
Commissioner Long moved to refer ZCV#1000163 against Martin and Berta Gutierrez back to the
Department of Planning Services. The motion was seconded by Commissioner Garcia,and it carried
unanimously.
ZCV#1000117-PRICE: Ms. Salzman presented the case report for the record and pursuant to the
case file, this property is in violation of various sections of the Weld County Code, as detailed in
staff's case summary. To bring the property into compliance,the large quantities of mulch must be
distributed over the property or removed. Ms. Salzman stated that the matter is complaint driven
and considered a fire hazard.
Larry Price, property owner, stated he was shocked when he received the violation notice because
his property is clean of trash, as well as clearing some cement from remaining foundations that are
on the property. He explained he is attempting to prepare the property to eventually build a home
with some out buildings and, in the interim, would like to plant some trees and place the mulch
around the base of them.
In response to Commissioner Conway, Mr. Price stated he would like to have all the trees planted in
approximately 30 years, buying ten to fifteen at a time. He further stated he does not intend to
compost the mulch that is on the property.
Mr. Price stated he has had an offer to trade or purchase his land with one of his neighbors but has
declined and the neighbor is not satisfied with his decision. Mr. Price further stated he feels this
particular neighbor now has animosity towards him and will do whatever is needed to get him in
trouble, complaining about the mulch being one thing. Mr. Price suspects this neighbor has also
taken mulch for his personal use from Mr. Price's property; however, he has not yet reported it to the
authorities.
Commissioner Long stated he has personally received several complaints regarding Mr. Price's
property and the fire hazard that is present with the amount of mulch located on the property.
Commissioner Long further stated he did have a couple of telephone conversations with Mr. Price
and at no time was planting trees mentioned. Commissioner Long stated at the time of the
telephone conversations, Mr. Price was told he needed to spread the mulch out over his property or
remove it.
In response to Commissioner Conway, Ms. Salzman stated Mr. Price needs to use the mulch, even
if he has to spread it over his property to reduce the risk of the fire hazard. Ms. Salzman further
stated that anything that is not dirt, such as wood chips, is considered a solid waste disposal.
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In response to Commissioner Garcia, Ms. Salzman stated the largest pile of mulch shown in the
pictures is approximately fifteen feet high and the others are about four to six feet high.
Mr. Price stated he could move the piles of mulch if he had to, or he could spread them out;
however, feels he would be wasting the mulch in doing so. He further stated he needs to build the
roads into the property and plant the trees; however, this process will take him some time. Mr. Price
stated he does not believe the piles of mulch are fifteen feet high and he has consolidated some of
the piles in an effort to prevent neighbors from taking mulch.
Chair Kirkmeyer stated she is confused why mulch is considered a violation of the code.
Ms. Salzman stated she has received numerous complaints on the property and as she stated
earlier, anything that is not dirt is considered a solid waste disposal, and because the mulch is not
being used, this heightened the issue.
In response to Chair Kirkmeyer, Mr. Price stated he does believe the mulch is on his property;
however, the neighbors have bought land all around him, thus he is does not know the exact
property lines. He continued to state he does not want to move the mulch around anymore fearing
he may move it onto his neighbor's property and they take it all.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
After discussion, the Board directed staff to clarify the violation and the differences between the
solid waste materials. The Board stated they do not feel the mulch should be considered a junk pile
and that it would not be any more of a fire hazard than a pile of wood for winter burning. One
concern of the Board is that Mr. Price does not have a definite time line of when he would like to use
the mulch.
Commissioner Long stated the Fire Department has stated if the mulch was to catch on fire there is
no way for them to knock it down the way they would with hay to spread it out. In response to
Mr. Price, Commissioner Long stated when they spoke on the telephone Mr. Price was advised to
spread the mulch over the property and not keep the piles and Mr. Price agreed to that; however,
now Mr. Price wants to keep his piles but minimize the height.
Commissioner Long moved to refer ZCV#1000117 against Larry Price to the County Attorney for
legal action, with the instruction to delay action upon such referral until April 11, 2011, to allow
adequate time for the property owner to spread the mulch over his property reducing the fire hazard.
The motion was seconded by Commissioner Conway; roll call vote was taken and did not pass,
three being opposed and Commissioner Long being for the motion.
After further discussion of the Board, it was suggested that the matter be referred back to staff with
the understanding that staff was not to take on the responsibility of finding a solution for Mr. Price;
however, be a mediator for Mr. Price and the Fire Department to discuss the options Mr. Price has in
consideration of spreading the mulch over his property. Commissioner Garcia indicated he would
like staff to review the issue of mulch being stored on one's property and find a clear resolution in
the future.
Commissioner Conway moved to refer ZCV #1000117 against Larry Price to the Department of
Planning,to allow adequate time for the property owner to meet with the Fire Department to discuss
the options of the mulch on the property. The motion was seconded by Commissioner Garcia; roll
call vote was taken and passed three to one, Commissioner Long being opposed.
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(Clerk's note: Due to a malfunction with the recording devise, the above violations were not
recorded.)
Violation Hearing recesed for lunch and resumed at 1:15 p.m.
ZCV#1000139- BELL/NUTRITIONAL SUPPLEMENTS, LLC: Ms. Salzman presented the case
report for the record and pursuant to the case file, this property is in violation of various sections of
the Weld County Code, as detailed in staff's case summary. On November 23, 2010, Ms. Salzman
conducted an inspection of the operation, along with two members of the Weld County Drug Task
Force. During the inspection the tenants, Nutritional Supplements, LLC, indicated there were
approximately 568 marijuana plants in the vegetation state located in Building A, also indicating
there were approximately 2,700 plants in Building B that would be ready for cultivation in
approximately a week from inspection. Ms. Salzman further stated Building C had approximately
3,800 plants that were almost ready to go into the green light phase; this totaling more than 7,000
plants. During the inspection the tenant stated property owner, Travis Bell, had started some
construction, leaving most of it to be completed by the tenants. Ms. Salzman stated on
January 7, 2011, staff met the tenants to conduct an inspection of the property, concluding that in
Building A the number of plants had been greatly reduced; however, no numbers of plants were
provided. Building B was totally vacant of plants, also having no electric or utilities running at the
time, and Building C had plants on the lower level that would be ready for cultivation in
approximately three to four weeks according to the tenants. Ms. Salzman stated the tenants have
reduced the numbers of plants; however it is still a growing operation, thus being in violation of the
Weld County Code. She further stated when they had their office meeting with the tenants on
December 9, 2010, it was discovered that when they applied for the Non-Conforming Use permit
(NCU), Building A may have been in operation; however, Buildings B and C were not operational, or
being utilized. The tenants were under the impression that because they intended to use Buildings
B and C when they applied for the NCU, that meant they would qualify as a NCU; however, in order
for it to be considered for the NCU it needs to be in existence, in use, and operational at the time.
Staff is recommending this matter be referred to County Attorney's office with a delay of action for 30
days to allow time to cease operation due to the tenants not meeting the NCU standards.
Ms. Salzman went through the pictures and explained the expanse of the growing operation.
In response to Commissioner Conway, Ms. Salzman stated there were originally 3,800 plants in
Building C,which was a count given to her by the tenants at her November 23, 2010, inspection and
they further indicated that in approximately one month the down stairs area would be ready for
cultivation. Ms. Salzman stated she believes there are still about the same amount of plants in
Building C, according to her inspection January 7, 2011; however, no official counts were taken, and
Building A originally had 568 plants with a decrease of approximately fifty percent at the last
inspection.
In response to Commissioner Garcia, Ms. Salzman stated it appears that portions of Building Awere
in operation prior to June 1, 2010; however, there is no evidence of Buildings B and C being in
operation at that time which was discussed in the December 9, 2010, meeting.
Rita Connerly, representative of Nutritional Supplements, LLC, and Kevin Lamar, owner\operator,
presented council with a packet, marked Exhibit A, and stated the property address given by staff of
1791 County Road 13 is not owned by Mr. Bell and the correct address is 1791 County Road 36.
Ms. Connerly stated Nutritional Supplements, LLC, denies the allegations that are being presented
and asked the matter be dismissed, the grounds for this request being that while the notice states
the NCR application was submitted by Mr. Bell, the application was deemed incomplete. Staff
reports they advised Mr. Bell of the incomplete application on July 14, 2010, which is correct;
however, what staff failed to say is under Exhibit A-1 the NCU application goes through several
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allegations that, in fact, include the date the NCU began, which was April 28, 2009. Ms. Connerly
further stated Exhibit A-2 shows the application was incomplete by a letter dated July 14,2010. She
further stated Staff provided additional time to allow a supplemental response,due to Mr. Bell having
received a traumatic injury and needing to go out of state for treatment; however, Mr. Bell was able
to provide the additional information requested to both Mr. Barker and Mr. Parko by July 30, 2010,
as requested. Ms. Connerly stated at the December 9, 2010, meeting it was mentioned that the
additional information went only to the County Attorney's office; Ms. Connerly then provided Staff
with receipt of the FedEx delivery to the Department of Planning Services reception area. Ms.
Connerly then read into the record a letter dated July 30, 2010, marked ExhibitA-3,also mentioning
they had attached copies of the Colorado Sales Tax License showing the grow operation was
indeed in existence prior to June 1, 2010. Ms. Connerly stated they believe they submitted the
supplemental information needed for the application in a timely manner; and did not receive a
response back from the Department until they received the notice letters of the violation.
Ms. Connerly did, however, receive an email from Mr. Parko, marked Exhibit A-5, addressed to both
herself and Brett Barney, another attorney who was also working with Nutritional Supplements, LLC,
stating once he received the signed affidavit he would be able to issue the NCU, noting the NCU
would only cover the three existing buildings, Buildings A, B, and C, and not the three proposed
greenhouse buildings. Ms. Connerly stated after several conversations with Mr. Barker on the
wording of the affidavit, Joshua Stanley, Sole Member of Nutritional Supplements, LLC, signed the
affidavit dated and notarized September 2, 2010, then returned it to the County Attorney's Office,
marked Exhibit A-6. Ms. Connerly stated,for these reasons alone,the property was not in violation
of Chapter 23, the facts were established that the property was a legal NCU, those facts were
confirmed by the two separate emails from Mr. Parko in August, 2010, and all requests of the
County had been met.
Ms. Connerly read a narrative from Mr. Bell, marked ExhibitA-3,explaining how the operation began
and continues to run, detailing contact with the County offices and his willingness to do what needed
to be done, and documenting invoices for the purchase of plants, along with the lease agreement
between Mr. Bell and Nutritional Supplements, LLC. Ms. Connerly also introduced Exhibits B thru E,
affidavits regarding Cultivation of Medical Marijuana in A (Agricultural) Zone in Weld County.
Ms. Connerly stated she has provided a substantial amount of evidence into the record that supports
the business was operational, with growing and harvesting of the product in Buildings A, B, and C,
prior to the June 1, 2010, County dead line. Ms. Connerly continued to read from Exhibit A-3, a
letter submitted to Staff dated July 30, 2010, from Fairfield and Woods, P.C., and Mr. Bell's personal
journal of operation. She stated full discloser of the operations occurring in Building A, B, and Con
the property, and in reliance of the State Constitution, Weld County Code and the Weld County
personnel, hundreds of thousands of dollars have been spent on the property.
Ms. Connerly stated on May 3, 2010, Mr. Bell was informed for the first time that permits were
needed for the work already completed on the property, and he contacted the County several times
and felt each time he spoke to Staff the information he received changed. She further stated
Mr. Bell and Mr. Swanson met for the first time in May, 2010, and on May 26, 2010, Mr. Bell spoke
with Mike William who informed Mr. Bell that he would need to complete a NCU application before
June 1, 2010, even though to Mr. Bell's knowledge the Weld County Code had not changed,
language for the potential code changes had not been drafted, and the Board had not had the first
ordinance reading or even voted on the topic. Shortly after May 26, 2010, Mr. Swanson conducted
an inspection and told Mr. Bell and three other employees they would absolutely be Agricultural
exempt and further inspection would not be required. Ms. Connerly further stated the three
proposed greenhouse units never were constructed following instruction from Mr. Swanson on
May 26, 2010 to stop any construction on the buildings, due to fact that the Department of Planning
Service had to enforce an anticipated regulation that was going to be adopted by the Board
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 10 PL0824
regarding marijuana. She further stated on June 17, 2010, Mr. Bell submitted building permits for all
three existing buildings, along with three additional permits for future buildings; he also completed
the NCU application on June 18, 2010. Ms. Connerly stated after months of communication with
Staff, Mr. Swanson informed Mr. Bell that marijuana would not be allowed in the three new buildings
and apologized for not telling Mr. Bell sooner; however, he was not aware this was a part of the NCU
statute.
Ms. Connerly stated on June 21, 2010, and July 12, 2010, the Board held the first and second public
hearings concerning medical marijuana. She stated Landon Gates, lobbyist for Nutritional
Supplements, LLC, presented testimony of the investments and reliance that had occurred on the
property at that time. Ms. Connerly stated she attended the July 20, 2010, public work session at
which time she was told there was not an amortization schedule since state law was going to require
licenses on July 1, 2010, and that existing operations would have the opportunity to continue with
operations until June 30, 2011. She further stated on July 26, 2010, the Board held the third
ordinance reading and Chair Rademacher stated, "Any operators of medical marijuana facilities
which can prove they were operating as of June 1, 2010,will be able to continue operating until July
1, 2011, and after that date,they will need to be licensed by the state; however, Weld County would
not be issuing any local licenses", see Exhibit A-8. She did clarify this is also what she heard at the
work session on July 20, 2010.
Ms. Connerly referred to Weld County Code Section 23-5-50, regarding retro-activity, and indicated
that the County Code generally prohibits retro-activity of new regulations, based on the
documentation which goes through the publications of the first, second, and final reading. She
stated the effective date of this ordinance was not June 1, 2010, but, rather, August 3, 2010, (see
Exhibit A-7). She further stated they had submitted all of their evidence in regard to the June 1,
2010, date when it actually seems the respected date should be August 3, 2010. Ms. Connerly
concluded her testimony by respectfully requesting the dismissal of this action, due to the evidence
brought before the Board.
In response to Mr. Barker, Ms. Connerly stated Mr. Bell is out of the state, and the relation between
Mr. Bell and Nutritional Supplements, LLC, is strictly with the lease agreement dated March 15,
2010, which is being considered the formal acknowledgement. Ms. Connerly stated she is only
representing the lessee appearing before the Board, she does not speak on behalf of Mr. Bell, and
she only used his journal entries to explain to the Board the events that occurred prior to
June 1, 2010. Ms. Connerly stated Joshua Stanley is the sole member of Nutritional Supplements,
LLC, he was the primary Caregiver prior to the time when individuals were primary caregivers, is the
license holder with the State, and Exhibit A-6, is able to bind him to the affidavit showing his
relationship to Nutritional Supplements, LLC. Mr. Barker stated he understands their position in
regards to the NCU and continuing operations; there was a prior understanding that operations
would cease as of June 30, 2011, and Ms. Connerly concurred, that according to the terms of the
affidavit, they would like to continue until June 30, 2011, and then cease all operations.
In response to Chair Kirkmeyer, Ms. Connerly stated there was no further communication with
Mr. Parko after the email stating once the affidavit was signed the NCU would be issued,which was
never issued; however, Ms. Connerly stated she did have some indication Mr. Parko was not going
to be issuing the NCU, (see Exhibit A-5).
Tom Parko stated when staff received the initial NCU application; Mr. Bell was provided a check list
stating everything which needed to be submitted with the application. Mr. Parko went through the
documentation that was provided to Staff as evidence of operation prior to June 1, 2010, and stated
Staff felt the evidence that was submitted really did not qualify. Mr. Parko further stated there was
also documentation presented from the State regarding Nutritional Supplements, LLC; however,
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 11 PL0824
there was no reference to the address in question. Mr. Parko stated with all the documentation that
was presented to staff they felt there was never anything specific to the address in question or that
the grow operation was established prior to June 1, 2010. Mr. Parko further stated he sent out the
emails on August 2, 2010, (Exhibit A-5), stating he needed the signed affidavit and even though the
affidavit is dated September 2, 2010, he did not receive it until the meeting with Nutritional
Supplements, LLC, in December, 2010, which resulted in staff not releasing the NCU. Chair
Kirkmeyer asked Mr. Parko to clarify why, if the emails sent in July and August,2010,stated the only
thing staff needed was the signed affidavit, and once received the NCU would then be issued,why
then, when there were no other documentation needed was the NCU never issued. Mr. Parko
stated at the December, 2010, meeting he did not feel comfortable issuing the NCU with the
evidence that was presented to staff. Mr. Parko stated he should have been more specific in his
emails; however, he only met with Mr. Bell once when he came into the office before his injury and
was not able to contact him after that. He stated staff prefers to work with the owners of the property
to make sure the property owner is aware of all the dealings that go on with the property rather than
dealing with the lessee or the tenant. Mr. Parko further stated there were building violations which
also contributed to the reasons the NCU was not issued,which is consistent with any grow operation
in the County.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
In response to Commissioner Conway, Mr. Barker stated he recalls speaking with Mr. Bell in
March, 2010, and at the time he did not know how state and local regulations would be finalized. He
further stated in November or December of 2009,the County had allowed grow operations to occur
in the Agricultural Zone District, so when Mr. Bell called and asked what he needed to do, he was
told he did not need any permits because it was a Use by Right. Mr. Barker stated he remembers
the conversations continued until May or June, 2010, and he informed Mr. Bell there would be
changes coming as of June 1, 2010, regarding grow operations in the County. Mr. Barker
commented he feels Mr. Bell and Nutritional Supplements, LLC, has made a diligent effort to stay
informed and be in compliance with the County, they have submitted documents when asked, and
Ms. Connerly attended the work session and was repeatedly part of discussions with the County.
Mr. Barker further stated after he received the emails and the letter that was referred to earlier, he
contacted Staff and confirmed they had received the same information. Mr. Barker stated there was
discussion with Ms. Connerly about the affidavit signed by Mr. Stanley on behalf of Nutritional
Supplements, LLC, and both parties agreed to disagree on the language; however,the affidavit was
signed and submitted, with the understanding that Mr. Stanley does have authorization to sign on
behalf of the company. An issue that also was discussed was if Mr. Stanley had authorization to
sign on behalf of Mr. Bell; however, at that time Mr. Barker felt it was a mute point due to the lack of
communication on Mr. Bell's part. Mr. Barker further stated there were questions from staff about
the affidavit and the validity of it especially where the building permits were concerned. Mr. Barker
stated he feels there was an operation in existence prior to June 1, 2010, and Mr. Swanson was at
the property in May, 2010, to do an inspection and would have further information of the grow
operation.
Commissioner Conway moved to dismiss ZCV #1000139 against Travis Bell and Nutritional
Supplements, LLC, finding they have complied with all requirements. The motion was seconded by
Commissioner Long.
Mr. Barker stated he would not recommend the dismissal; however, he would recommend they
continue to remain in violation because of the building permit issues but allow Nutritional
Supplements, LLC, to continue their operation and do what they have said, to cease operation and
vacate the property by June 30, 2011. In response to Chair Kirkmeyer, Mr. Barker stated they could
refer the matter back to staff or refer the matter to the County Attorney's office with a delay of action.
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 12 PL0824
Chair Kirkmeyer stated either of these options would suggest they believe them to be in violation,
which she does not agree with; she does, however, feel they have established they have a NCU and
have complied with all requests from staff.
Commissioner Long suggested changing the motion, to say the violation is dismissed with the
finding that there is a NCU and with the understanding that after June 30, 2011, the use will no
longer be allowed to exist; Commissioner Conway and Chair Kirkmeyer concurred.
Commissioner Garcia stated he believes there is a violation based on Mr. Swanson's finding at his
May 26, 2010, inspection, that there was not a grow operation in two of the buildings and if there
was a grow operation it was interrupted by the renovations being done on the buildings at that time.
Commissioner Conway stated he agrees with Commissioner Garcia's concerns; however,
Mr. Swanson stated he did not actually inspect Building A so there is no evidence that there was not
a grow operation in the building at the time. Chair Kirkmeyer stated the evidence presented clearly
shows there was a grow operation in existence prior to the inspection date; whether or not the
buildings had plants in them at the time, the buildings were still being used. She further stated the
code does say that as long as the operation was not moved or abandoned it is considered to still be
in operation.
Commissioner Conway moved to dismiss ZCV #1000139 against Travis Bell and Nutritional
Supplements, LLC,with a finding that there is a NCU that exists and the property and the owner will
vacate the use as of June 30, 2011. The motion was seconded by Commissioner Long. Upon
request for a roll call vote, the motion carried three to one, with Commissioner Garcia being
opposed.
BCV#1000071 - BELL: Ms. Gregory presented the case report for the record and pursuant to the
case file, this property is in violation of various sections of the Weld County Code, as detailed in
staff's case summary. She stated Mr. Bell was told to cease all construction on the buildings in
May, 2010, but continued the work without the required permits for Change of Use of the buildings.
She indicated permit applications have been submitted but not released, pending approval of a NCU
and the required information needed to issue the building permits including: the lease agreement,
proof of water and septic, and the engineered building plans. She further stated the building permit
applications also have not been received for the two cargo containers that are currently on the
property, there are more than two on the property; however, two are allowed per the Weld County
Code. Ms. Gregory stated Mr. Bell indicated he first had contact with Building Planner,
Fred SanMartin in November, 2009; however, Mr. SanMartin no longer worked for the County in
November, 2009, so she does not know how accurate the dates are. To bring the property into
compliance, all required information shall be provided for the building permit applications that have
been submitted for the remodel and change of use of three outbuildings, fees paid, the permits
issued, and all inspections completed. Staff is recommending this matter be referred to the
County Attorney's office for immediate legal action, for the reason Mr. Bell was issued a Stop Work
Order and construction continues on the property without the proper permits being submitted.
Ken Swanson, Building Official, stated he was at the property in May, 2010, to observe the building
violations that were on the site; however, he did not walk through Building A; he started by being
greeted at the residence and spoke with five or six gentleman one of which was Mr. Bell. Mr. Bell
then proceeded to Building B which was empty at the time and showed signs of some remodeling
being done; Mr. Swanson informed Mr. Bell at that time there needed to be a building permit for the
remodel and there would be a Stop Work Order issued for the remodel. They then proceeded to
Building C which had extensive remodeling being done,the mechanical contractor and the electrical
contractor were on the property at the time, and Mr. Swanson informed all contractors there were no
building permits submitted for the remodeling that was being done and a Stop Work Order was
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 13 PL0824
being issued. Mr. Swanson stated he did not inspect Building A; however, when he asked Mr. Bell
about Building A, Mr. Bell's response was they were doing the same thing in that building as well.
Mr. Swanson further stated though he did not physically inspect Building A there was duct
penetrations sticking out of the side of the building that would suggest there was construction in that
building as well. Mr. Swanson further stated all three Buildings required permits and Stop Work
Orders were posted and all work ceased while he was at the property.
Ms. Connerly stated she feels there has been a circular round about regarding the building permit
and the issuance of the NCU, per the Weld County Code Section 29-3-160. She further stated they
would like to have a determination on the matter,that this is infact a NCU so that the Department of
Building inspection can act on the building permit application submitted on June 17, 2010, and
supplemented stamped drawings on July 26, 2010, and respond to any and all inquiries.
Chair Kirkmeyer provided the opportunity for public testimony; however, none was given.
In response to Commissioner Conway, Mr. Swanson stated on May 26, 2010, he did visit the site to
inspect the property and at that time there was remodeling going on so he issued a Stop Work
Order and told Mr. Bell that all remodeling must cease until the proper permits were issued.
Mr. Swanson further stated, yes, since the time of the inspection, remodeling had continued and
was completed as well as the grow operation resumed in all three buildings. Ms. Connerly stated
she would like to see the Stop Work Order, because they have not been able to locate a copy of the
said Stop Work Order and requested one at the meeting in December, 2010. It was determined that
Mr. Swanson did not give Mr. Bell a written Stop Work Order, that he gave him a verbal order and
Mr. Bell then gave Mr. Swanson a hand written acknowledgement of the Stop Work Order.
In response to Mr. Barker, Mr. Swanson stated there is no Certificate of Occupancy on any of the
buildings located on the property; he further stated they have not even issued permits for the
buildings because they do not have any construction documents for the three buildings.
Chair Kirkmeyer stated prior to them needing the permits the property was considered Agricultural
Exempt and would not have required any permits.
Ms. Connerly stated they have an affidavit from David Bueno, electrical contractor,which has been
given to the Board as Exhibit B, stating he submitted on July 26, 2010, a wet stamped construction
drawing for the foundation, mechanical, and electrical systems to Weld County, so her
understanding is the County should be in receipt of these. She further stated she understands that
pursuant to the County Code there is to be some type of written documentation provided to evidence
a Stop Work Order.
In response to Commissioner Conway, Mr. Barker stated he believes the affidavit that was submitted
by Josh Stanley, Sole Member of Nutritional Supplements, LLC, would be sufficient to issue the
NCU with the understanding on June 30, 2011,all operations must cease,which was also confirmed
by Mr. Lamar. He further stated looking back when he spoke with Mr. Parko he wished he would
have told staff to go ahead and issue the NCU; however, they are the ones to make the final
decision.
In response to Chair Kirkmeyer, Mr. Parko stated he has not received all the construction
documents in order to do any review, therefore, cannot give a specific time frame of how long it
would take to review the permits and have them issued. He further stated he spoke with the design
professional approximately three or four months ago, and they indicated there were four other
operations that they were currently working on for Nutritional Supplements, LLC,and that he had not
been paid as of yet and he would not release further documents until he received payment. Chair
Kirkmeyer asked Mr. Swanson, if he received all the documents he needed by tomorrow, how long it
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 14 PL0824
would take staff to do the review. Mr. Parko stated it would take twenty working days for the review
and then it would be up to the property owner or lessee for their availability as to when the final
inspection could be conducted.
Ms. Connerly stated they would need to have a meeting with staff as soon as possible to see what
documents still need to be submitted. She further stated it was Mr. Buenos understanding that all
construction documents per his affidavit had been submitted on July 26, 2010. Ms. Connerly stated
as soon as they find out the documents that are still outstanding they would be able to deliver them
to staff.
Mr. Lamar stated because of the changes and challenges they have had, some of the money that
would have gone into finishing the construction has instead gone into servicing their patients. He
further stated, as Mr. Swanson made mention to the contractor not being paid, Mr. Lamar needs to
pay some of the contractors to make sure they comply and get any documents needed to staff.
Mr. Lamar indicated he feels he can have this all completed in thirty days.
Commissioner Conway moved to refer BCV#1000071 against Travis Bell to the County Attorney's
Office for legal action,with the instruction to delay action upon such referral until February 11,2011,
to allow adequate time for the applicants to provide staff with all appropriate documentation, as well
as have all inspections completed. The motion was seconded by Commissioner Long, and it carried
unanimously.
There being no further discussion, the hearing was completed at 2:30 p.m.
This Certification was approved on the 17th day of January, 2011.
BOARD OF COUNTY COMMISSIONERS
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CD #2011-01
Hearing Certification, Zoning Violations
January 11, 2011 2011-0118
Page 15 PL0824
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