HomeMy WebLinkAbout20111667.tiff HEARING CERTIFICATION
RE: VIOLATIONS OF THE WELD COUNTY CODE -ZONING AND BUILDING INSPECTION
A public hearing was conducted on July 12, 2011, at 10:00 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Sean P. Conway, Pro-Tern — EXCUSED UNTIL 10:45 A.M.
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Elizabeth Strong
Assistant County Attorney, Stephanie Arries
Planning Department representative, Bethany Salzman
Planning Department representative, Peggy Gregory
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#1100069 -HATTON/A NEW DAWN WELLNESS CENTER: Bethany Salzman, Department
of Planning Services, Zoning Compliance, 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 this property is surrounded by the City of Evans and it is within the
Saint Louis Colony. She stated a property inspection was conducted at the site yesterday by herself
and Frank Piacentino, Building Inspections. Ms. Salzman stated the structure is a duplex,which is a
Non-Conforming Use(NCU) in the A(Agricultural)Zone District. She stated there is an operation on
one side of the duplex containing 30 plants, and another operation containing 30 plants on the other
side of the duplex. She stated staff has consistently only allowed one caregiver operation per
parcel; not per legal address. In response to Commissioner Garcia, Ms. Salzman stated the
property owner has been forthright with staff and he offered to allow them into the outbuilding
structures when staff conducted the inspection; however, they did not enter the structures.
Carl Hatton, property owner, stated he does not agree with the non-conforming use status of the
duplex since the structure has been there since the 1940s, and it has been a duplex since before he
was born. He stated he purchased the duplex in the year 1990, and there were separate utilities,
furnaces, and addresses. He stated the idea that only one caregiver operation is allowed per parcel
makes no sense to him. He stated if only four(4)dogs were allowed per parcel, as opposed to per
legal address, every condominium complex would be in violation. Mr. Hatton stated his tenants in
the duplex should be able to legally practice what is in the Colorado Constitution. Commissioner
Rademacher inquired as to whether Mr. Hatton has the ability to present his case before the Board
of Adjustment to challenge the interpretation of the Weld County Code.
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 1 PL0824
Bruce Barker, County Attorney, stated the Code indicates exceptions for the caregivers and
individuals growing their own medical marijuana, to be consistent with the Colorado Constitution;
however, the Code does not specify there is only one growing operation allowed per parcel. He
stated the interpretation has been one per parcel, due to the concern there may be 15 caregivers
operating out of one warehouse. Commissioner Rademacher stated he was referring to the
interpretation of the Code about splitting the duplex. Mr. Barker inquired as to whether the duplex is
a non-conforming use or a non-conforming structure. Ms. Salzman clarified the problem is the
non-conforming use of the structure as a duplex, and staff concurred with Mr. Hatton about the
property being grandfathered in as a duplex; this is the terminology used for that. Mr. Barker
inquired as to whether there is certification for the nonconforming use. Ms. Salzman stated she did
not validate that; however, Mr. Hatton indicated he went through a process with staff, and the NCU
is the only type of process for this, and there is information in the file showing it has been a NCU
since the year 1960. She stated the structure is no longer being used as a dwelling; it is strictly
being used as a growing operation. She stated there are no beds or furniture, which will, in time,
void the NCU. In response to Commissioner Rademacher, Chair Kirkmeyer clarified the duplex
itself is a nonconforming structure in the A(Agricultural) Zone; however, the parcel has never been
split. Ms. Salzman confirmed the duplex is one parcel. Chair Kirkmeyer clarified growing medical
marijuana is not the non-conforming use;the non-conforming use is the duplex structure, and there
are two separate addresses for the duplex,yet it is on one parcel. Commissioner Garcia inquired as
to whether there are tenants living there or whether it is solely being used for operating the
businesses. Mr. Hatton stated everything changed after May 15, 2011, and the duplex will be rented
as a duplex; it will not be strictly used as a growing operation.
Peggy Gregory, Department of Planning Services, Building Compliance, stated the building
inspection violation (BCV#1000081) for this property is for the change of use of the duplex to a
marijuana growing facility without a permit. She stated Mr. Piacentino completed an inspection
yesterday and determined a Change of Use was permitted from an R-3 to a U occupancy, per
Chapter 34 of the International Building Code. She stated a building permit application needs to be
submitted to address the issue. Mr. Hatton stated the duplex will be used as a residence, and he
inquired as to whether this negates the need for the application to be submitted. Ms. Gregory stated
there have still been interior changes, including electrical changes, to convert the duplex to a
medical marijuana operation,which require permitting. Chair Kirkmeyer stated if the duplex returns
to be used as a residence, Mr. Hatton does not need to apply for a Change of Use Permit.
Ms. Gregory clarified if any electrical changes remain, Mr. Hatton needs to apply for a Change of
Use Permit, or he can remove all of it and have an inspection completed to verify the items have
been removed. Mr. Hatton inquired as to whether Ms. Gregory is referring to the low voltage
security system he installed when she refers to electrical changes. Ms. Gregory indicated she will
defer to Mr. Piacentino to address Mr. Hatton's question.
Mr. Piacentino stated Mr. Hatton is growing medical marijuana on both sides of the duplex and it
would not be appropriate to grow medical marijuana and use the duplex as a residence at the same
time; therefore, Mr. Hatton will have to remove the plants to use the duplex as a residence. He
indicated the security system is not a problem; however, if the use is changed to U, there are
additional requirements for wet locations, and a growing room is wetter than a residence and some
of the current electrical items would not be appropriate for a wet location. In response to
Commissioner Rademacher, Mr. Piacentino stated if Mr. Hatton removed the growing operation and
rented the property as residences, he would not need to do anything to come into compliance.
Mr. Hatton stated if he has a tenant who wants to grow 30 plants under a caregiver status, he does
not see how that would be a violation. Mr. Barker stated the violation is not regarding the use, it is
regarding the building permit and the structure itself, and Mr. Piacentino is trying to make sure the
changes to the structure are properly permitted, regardless of what types of plants are within the
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 2 PL0824
structure. In response to Mr. Hatton, Mr. Barker stated if a tenant had 30 medical marijuana plants
under the caregiver status,they would not be in violation of the Weld County Code. Chair Kirkmeyer
inquired as to whether Mr. Hatton needs to do anything to come into compliance if the duplex
remains a residence. Mr. Piacentino stated he will have to research the matter; however, he thinks
the duplex would be considered an unsafe structure. He stated the duplex structure is
approximately 600 square feet on each side, and growing operations occupy the bedrooms and
living rooms in the duplexes. Chair Kirkmeyer inquired as to whether someone must obtain a
building permit if they begin growing up to 30 medical marijuana plants in their residence and
change the electrical components in their home. Mr. Piacentino stated a permit would not be
necessary in that instance. Chair Kirkmeyer stated a building permit should not be necessary in this
instance either then, and Commissioner Rademacher concurred. She stated the building violation
was for the change of use when it was being used solely for growing medical marijuana. Chair
Kirkmeyer indicated it seems the building violation should be dismissed, and Commissioner
Rademacher concurred. In response to Chair Kirkmeyer, Mr. Hatton indicated it is his intent to
correct the violation by using the duplex as a residence, and there is no commercial activity
occurring on the property any longer, since the NCU expired June 30, 2011, and the clinic was
closed May 15, 2011. In response to Chair Kirkmeyer, Mr. Hatton clarified he intends to grow
30 medical marijuana plants, as a caregiver, and he has a tenant who intends to grow 30 medical
marijuana plants on the other side of the duplex, as a patient. Chair Kirkmeyer stated just
30 medical marijuana plants are allowed per parcel. Mr. Barker clarified the Weld County Code
does not specify only one medical marijuana growing operation is allowed per parcel; that is simply
an interpretation by the Department of Planning Services staff, and it is up to the Board to determine
whether it agrees with staffs interpretation. He stated the Weld County Code also does not state
caregivers or patients growing medical marijuana must be incidental to a residential use. Mr. Hatton
stated it would be arbitrary to state one growing operation is allowed per parcel, as opposed to per
unit. He stated an apartment complex may contain 30 units, and if one tenant was growing medical
marijuana, another could not grow any, according to the rule of one operation being allowed per
parcel. He stated this interpretation does not make sense, and it is not in the Weld County Code.
Mr. Barker stated the Director of the Department of Planning Services has the authority to make a
determination on the interpretation of the Weld County Code and then the Board can choose
whether or not to agree with the interpretation. He stated an appeal of the Director's decision would
need to be made to the Board of Adjustment. Commissioner Rademacher stated the building
violation should be dismissed; however, he is still unclear as to what should be done regarding the
zoning violation. Chair Kirkmeyer concurred, and she stated the Board needs to determine whether
or not it agrees with staff's interpretation regarding one operation being allowed per parcel to make a
determination on the zoning violation. In response to Commissioner Rademacher, Chair Kirkmeyer
confirmed if the Board concurs with staff's interpretation of the Weld County Code, Mr. Hatton could
appeal to the Board of Adjustment to appeal the determination of the Director of the Department of
Planning Services. Mr. Hatton stated the duplex is 1,421 square feet, which is larger than
Mr. Piacentino previously indicated. Commissioner Garcia stated he read something in the file
which indicated there were three (3) caregivers at the duplex. Mr. Hatton stated there will now be
two (2) different caregivers; one in each unit. In response to Commissioner Garcia, Mr. Hatton
stated the three (3) individuals Commissioner Garcia mentioned were renting out the duplex for
A New Dawn Wellness Center, and they are no longer there.
In response to Chair Kirkmeyer, Tom Parko, Department of Planning Services, indicated if a second
home was placed on a parcel through a Use by Special Review(USR) Permit, a caregiver would be
allowed to grow medical marijuana in each residence. In response to Commissioner Rademacher,
Mr. Barker stated the Board of Adjustment's determination is final; however, if the Board does not
determine a violation is occurring, there is nothing for Mr. Hatton to appeal. Commissioner Long
stated he is totally against the use of medical marijuana; however, his determination is that 30 plants
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 3 PL0824
should be allowed per residence, as opposed to per parcel. He stated the Board needs to make its
determination on this issue and apply it consistently. In response to Chair Kirkmeyer, Commissioner
Long concurred that he finds the determination of one growing operation being allowed per
residence more in line with the Constitution than one operation per parcel, and the matter should be
dismissed. Chair Kirkmeyer concurred.
Commissioner Rademacher moved to dismiss ZCV#1100069 against Carl Hatton Revocable Living
Trust and A New Dawn Wellness Center. The motion was seconded by Commissioner Long, and it
carried unanimously.
BCV#1000081 -HATTON/A NEW DAWN WELLNESS CENTER: Based on previous discussion,
Commissioner Rademacher moved to dismiss ZCV #1100069 against Leslee Hatton Revocable
Living Trust and A New Dawn Wellness Center. The motion was seconded by Commissioner
Garcia, and it carried unanimously.
BCV #1000078 - HILLIGOSS/REYES: 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. She stated this
property is in violation of the Code for electrical work and interior changes which have been
completed without a permit in two (2) outbuildings on the property which were constructed in the
year 1910. She stated a licensed electrician submitted applications for the property yesterday, and
the tenant also submitted applications for the necessary building permits yesterday; therefore, she
recommends the matter be referred to the County Attorney's Office, with an instruction to delay
action for 30 days, to allow staff adequate time to process the permits.
Daniel Reyes, tenant, reiterated the necessary permits are being processed. In response to
Commissioner Rademacher, Mr. Reyes confirmed 30 days should be adequate time for him to bring
the property into compliance.
Commissioner Garcia moved to refer BCV#1000078 against Helen Hilligoss and Daniel Reyes to
the County Attorney for legal action,with the instruction to delay action for 30 days. The motion was
seconded by Commissioner Rademacher, and it carried unanimously.
BCV #1000079 - NEAL/WALLS: 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. To bring the property into compliance, a permit application for all
applicable documentation must be submitted for the change of use without a permit for a medical
marijuana growing operation, the fees must be paid, the permit must be issued, and all the
inspections must be completed, or the structure must be returned to its previous use. She stated
the property is in violation of the Code for the change of use of an existing building which has never
been permitted and was constructed in the year 2008. Ms. Gregory stated a letter was sent to the
property owner by Mr. Piacentino on June 16, 2011, following an inspection, and the letter outlined
the requirements for permitting the structure. She stated another inspection occurred on July 11,
2011, at which time Mr. Piacentino spoke to the property owner about compliance with the Weld
County Code and he provided him with the permit application. She recommended the matter be
referred to the County Attorney's Office for immediate legal action. No representatives for the owner
or the tenant were present.
Commissioner Rademacher moved to refer BCV#1000079 against Dennis Neal, Inc., and Sam
Walls to the County Attorney for immediate legal action. The motion was seconded by
Commissioner Long, and it carried unanimously.
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 4 PL0824
BCV#1000088 -COUNTRY TIME, LLC/WEMHOFF: 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 staffs case summary. She stated an inspection was completed by
Mr. Piacentino on July 11, 2011, at which time he advised the owner as to what is necessary to bring
the property into compliance, including removing all the equipment associated with the medical
marijuana growing operation, obtaining an electrical permit, and having an inspection completed by
a licensed electrician to verify compliance with the 2008 Electrical Code. She stated the property
owner must also obtain a letter from the electrician stating the work is in compliance with the Weld
County Code, or listing the corrections necessary to bring the property into compliance, and obtain a
permit for repairing the firewalls, in-floor heating, and water systems which have been added or
damaged. Ms. Gregory stated approval by the Department of Public Health and Environment will be
required prior to final approval of the water tanks. To bring the property into compliance, a permit
application and all applicable documentation must be submitted for the change of use and/or work
completed without a permit, the fees must be paid, the permit must be issued, and all inspections
must be completed, or the structure must be returned to the previous use. She stated the property
owner submitted an application this morning;therefore, staff recommends the matter be referred to
the County Attorney's Office, with an instruction to delay action for 30 days.
Carl Wemhoff, property owner, requested more than 30 days. He stated when he bought this
property approximately a year and a half ago, he determined the well water was not able to be
utilized for drinking or showering; therefore, he installed two (2)cisterns as an alternative. He stated
he will obtain permits for those if he continues to utilize the cisterns; however, he would like to see if
he can get the well to produce clean water, and if so, he will remove the cisterns. Mr. Wemhoff
stated it will take more than 30 days to resolve the water issue; however, the other issues, such as
patching holes and rewiring, are minor and he will easily be able to complete those within 30 days.
He stated perhaps the electrical company will pay for him to connect to a waterline, if it can be
proven that the electrical company is responsible for the poor water quality. He stated the house
needs a clean water source and he does not know whether he will be able to provide it within
30 days. In response to Chair Kirkmeyer, Mr. Wemhoff stated the water has not been tested;
however, he obtained a testing kit this morning and he learned some steps for chlorinating the
water. Further responding to Chair Kirkmeyer, Mr. Wemhoff stated he cannot recall whether the
water smells like sulfur, since it has been over a year since he quit using it; however, he remembers
it had a dark color and it would burn through a water filter in just a day. He stated he needs to test
the water to determine whether it is potable, and he requested 90 days. Ms. Gregory stated the
reason for requesting the 30-day delay is that if progress is being made within the 30 days, no legal
action will be taken. In response to Mr. Wemhoff, Chair Kirkmeyer stated as long as he begins the
process within 30 days, he does need to contact anyone to request more time at the end of the
30 days. Ms. Gregory reiterated legal action will only be proceeded with if no progress is made by
Mr. Wemhoff within 30 days. Chair Kirkmeyer stated typically the type of case the Board would
consider granting 90 days for would be, for example, a non-commercial junkyard being removed
from a property; however, Mr. Wemhoff simply needs to begin the process with 30 days.
Commissioner Long reiterated Mr. Wemhoff does not need to have the process completed within
30 days; he just needs to initiate the process. Mr.Wemhoff inquired as to whether there are two(2)
cases involving his property. Chair Kirkmeyer clarified there were two(2) cases; however, the case
involving the zoning violation was closed.
Commissioner Rademacher moved to refer BCV#1000088 against Country Time, LLC, and Carl
Wemhoff to the County Attorney for legal action,with the instruction to delay action for 30 days. The
motion was seconded by Commissioner Garcia, and it carried unanimously. (Clerk's Note:
Commissioner Conway is now in attendance; it is 10:45 a.m.)
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 5 PL0824
BCV #1000080 — ROTHERHAM: 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 staffs case summary. She stated this violation is concerning a change of use from an
existing garage to a medical marijuana growing facility. She stated an inspection was completed by
Mr. Piacentino on July 6, 2011, which was followed up by an e-mail detailing all the items which
need to be permitted, including the mezzanines, heating and air conditioning, water heater,
bathrooms, electrical items, and wall coverings. Ms. Gregory recommended this case be referred to
the County Attorney's Office for immediate action. In response to Commissioner Rademacher,
Ms. Gregory confirmed the certified mail receipt has been provided to staff.
John Rotherham, property owner, stated he has not read Mr. Piacentino's e-mail yet about what
permits are necessary; however, he is willing to apply for whatever permits he needs. He stated all
the medical marijuana plants have been removed from the property. In response to Chair
Kirkmeyer, Ms. Gregory stated Mr. Rotherham still needs to apply for the necessary building permits,
even though he no longer has medical marijuana plants on the property. Responding to Chair
Kirkmeyer, Mr. Rotherham confirmed he will apply for the necessary building permits within 30 days.
Commissioner Conway moved to refer BCV#1000080 against John and Alicia Rotherham to the
County Attorney for legal action, with the instruction to delay action for 30 days. The motion was
seconded by Commissioner Rademacher. In response to Commissioner Conway, Mr. Rotherham
and Ms. Gregory confirmed 30 days is adequate time to bring the property into compliance. There
being no further discussion, the motion carried unanimously.
BCV#1000072 - PETERSEN/BURKE: 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 staffs case summary. She stated this property is in violation due to the change of use of
an existing basement to a medical marijuana growing facility. To bring the property into compliance,
a permit application and all applicable documentation must be submitted for the change of use
and/or changes, additions, and alterations to the basement of the single family dwelling, the fees
must be paid, the permit must be issued, and all inspections must be completed, or the basement
must be returned to the previous use. She stated an inspection of the property was completed by
Mr. Piacentino on July 6, 2011, and he indicated an electrical contractor needs to be obtained to
verify compliance with the 2008 Electrical Code and the contractor must submit a list of the
corrections necessary to bring the property into compliance. Ms. Gregory stated the wall and ceiling
coverings need to be removed and permit applications for the building and electrical modifications
need to be submitted. She stated staff spoke to the property owner and the tenant this morning and
they have agreed to hire a contractor and complete the necessary work to bring the property into
compliance. In response to Commissioner Conway, Ms. Gregory confirmed she will change her
recommendation from referral to the County Attorney's Office for immediate action, to delaying
action for 30 days, in light of the information provided by the tenant and property owner this morning.
Bret Petersen, property owner, and Mark Macklin, tenant, were present. Mr. Macklin stated Gary
Burke, the former tenant, has been in jail for approximately eight(8) months. He stated most of the
operation was dismantled the day the County inspected the property, and the removal of the
operation is approximately two-thirds complete, with only the electrical work remaining.
Mr. Petersen stated they are in the process of completing the electrical work. In response to Chair
Kirkmeyer, Mr. Peterson and Mr. Macklin confirmed 30 days should be adequate.
Commissioner Rademacher moved to refer BCV #1000072 against Bret Petersen to the County
Attorney for legal action, with instruction to delay action for 30 days. Commissioner Conway
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 6 PL0824
seconded the motion. In response to Mr. Petersen, Chair Kirkmeyer stated he should call the phone
number listed on his building permit to request an inspection. Commissioner Conway indicated
Mr. Petersen can speak to staff after the meeting if he has additional questions. There being no
further discussion, the motion carried unanimously.
BCV #1000085 - HANSON/ON TASK IN OVER DRIVE, LLP: 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,
a permit application and all applicable documentation must be submitted for the change of use
and/or work completed without a permit for a medical marijuana growing operation,the fees must be
paid, the permit must be issued, and all inspections must be completed, or the structure must be
returned to the previous use and an inspection scheduled. She stated the violation is due to the
change of use of an existing structure, which was permitted in the year 2003; however, it did not
include electrical work at that time. She stated Mr. Piacentino completed an inspection yesterday
and he indicated an electrical permit is necessary, and after all the equipment associated with the
medical marijuana growing operation has been removed, a licensed electrician must verify the
property is in compliance with the 2008 National Electrical Code and write a letter stating the work is
in compliance, or provide a list of the corrections necessary to bring the property into compliance.
Ms. Gregory stated the owner has a choice to remove the sink, wood stove, and the mezzanine, or
to obtain building permits for the items. She stated Mr. Piacentino spoke to the property owner
yesterday and he recommends the property owner be provided 30 days to submit the necessary
applications.
Kory Hanson, property owner, stated he provided Ms. Gregory the documentation from the Colorado
Department of Revenue that he is going to cease and desist. He stated he met with Ms. Salzman
and Mr. Piacentino yesterday, and he made a few phone calls to obtain an electrician and he is
waiting for a return phone call. He stated the sink is not plumbed in; it was just used for waste water
which was transferred onto his grass. Commissioner Kirkmeyer inquired as to whether 30 days will
be adequate time to bring the property into compliance. Mr. Hanson stated it depends on the
schedule of the electrician. Chair Kirkmeyer stated as long as he begins the process within 30 days,
legal action will not occur; however, he does not need to have the process completed.
Commissioner Garcia moved to refer BCV#1000085 against Kory Hanson and On Task in Over
Drive, LLP, to the County Attorney for legal action, with the instruction to delay action for 30 days.
The motion was seconded by Commissioner Conway, and it carried unanimously. There being no
further discussion, the hearing was completed at 11:00 a.m.
Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 7 PL0824
This Certification was approved on the 18th day of July, 2011.
BOARD OF COUNTY COMMISSIONERS
WELD UNTY, RADO
ATTEST:
mil/ J Bar ara Kirkmeyer, Chair
Weld County Clerk to th- . oa
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Deputy Clerk to the Bo 1\1 1 ;� (W k I• F
F. Garcia
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David E. Long
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Hearing Certification, Zoning Violations
July 12, 2011 2011-1667
Page 8 PL0824
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