HomeMy WebLinkAbout20112687.tiff HEARING CERTIFICATION
RE: VIOLATIONS OF THE WELD COUNTY CODE -ZONING AND BUILDING INSPECTION
A public hearing was conducted on October 11, 2011, at 10:00 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Sean P. Conway, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher- EXCUSED
Also present:
Acting Clerk to the Board, Tonya Disney
Assistant County Attorney, Stephanie Arries
Planning Department representative, Bethany Salzman
Building Inspection, Frank Piancentino
The following business was transacted:
At the request of Planning staff, Commissioner Garcia moved to refer the following matters back to
the department of Planning Services; ZCV #0900265, Abelardo and Nancy Vega, and
ZCV#1100086, KB Custom AG Services, LLC. The motion was seconded by
Commissioner Conway, and it carried unanimously.
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#1100023—EHRLICH: 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 this case started February 22, 2011, and staff has been
working with the Ehrlich's, understanding they are farmers and this time of year is busy for them.
Ms. Salzman stated staff continued this matter in May, 2011,to allow adequate time for the Ehrlich's
to make different working arrangements for the business or to submit a Use by Special Review
(USR) application and did not feel they could continue it any longer. She further stated on
September 29, 2011, the Ehrlich's visited with staff and indicated they would be closing the auto
repair business; however, they would like to be allowed the time to finish the repairs on a couple of
the vehicles. Ms. Salzman stated during her site visit yesterday,there were several vehicles on the
site, and she is unaware how many of them are there for repairs, to be picked up, staff vehicles, or
the property owner's vehicles. Ms. Salzman stated the Ehrlich's stated they felt they would be able
to close the business within 10 days; however, staff is recommending this matter be referred to the
County Attorney's office with a delay of action for 30 days, allowing the property owners adequate
time to finish any repairs as well as close the business.
In response to Commissioner Conway, Ms. Salzman stated the Ehrlich's stated they felt 10 days
would be an adequate amount of time even during harvest time, further stating she believes a
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October 11, 2011 2011-2687
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gentleman by the name of Dusty Ehrlich is the one who does the repairs on the vehicles and does
not work as a harvester.
Warren Ehrlich, property owner, stated he appreciates the Board giving him the 30 days that staff is
recommending and feels this is a sufficient amount of time. He further stated this is not a large
business but it is something his grandson started and apparently the neighbors do not approve. Mr.
Ehrlich further stated six of the vehicles belong to him, three of the vehicles on the site are part of
the business and waiting for repairs to be completed, and the remaining vehicles belong to those
who are harvesting. Mr. Ehrlich further stated by closing the business two people will be without
work; one being his grandson and the other is the father of the people who called and made the
complaint.
Commissioner Conway moved to refer ZCV#1100023 against Warren and Norma Ehrlich to the
County Attorney for legal action, with the instruction to delay action upon such referral until
November 11, 2011, to allow adequate time for the property owner to bring the property into
compliance by closing the auto repair business. The motion was seconded by Commissioner Long,
and it carried unanimously.
ZCV#1100059-SCHACK PROPERTIES, 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 staffs case summary. To bring the property into compliance, based on
a pre-application meeting that was conducted on June 3, 2011, a proper zoning permit must be
submitted to the Department of Planning Services so that staff can process the business that is
currently on the property. Ms. Salzman stated the site has been permitted for a Non-Conforming
Use (NCU) Permit#490 for Brighton Welding, with no outside employees, only family, which also
included a small portion of outside storage. Ms. Salzman stated the site is zoned 1-3 Industrial. Ms.
Salzman further stated she has not had any discussion with the Schack's or their representative;
they have however, met with the planners during the pre-application meeting. Ms. Salzman stated
at this time she does not have a recommendation, seeing as she has had no contact with the
Schack's.
In response to Chair Kirkmeyer, Ms. Salzman stated at her site inspection yesterday, she noticed
there was an oil and gas hauling operation being run from the site; they had six commercial
vehicles, as well as several apparent employee vehicles on the property. Ms. Salzman further
stated the Schack's need to apply for a Site Plan Review (SPR) in order to bring the property into
compliance. Chair Kirkmeyer asked if they needed a zoning permit and Ms. Salzman stated no,the
uses they have on the property are an allowed use; however, in the Industrial Zone District,a SPR is
required for all uses that are listed as uses by right or accessory uses in an Industrial Zone District.
In response to Commissioner Conway, Ms. Salzman stated when there is a pre-application, it is
common practice for staff to recommend approximately 60 days to have the SPR application turned
in, staff has allowed 120 days to pass and still they do not have a SPR application from the
Schack's, therefore; they felt it necessary to schedule a hearing.
Joseph King, representative, stated he has not spoken with Ms. Salzman but has been in contact on
a fairly frequent basis with Frank Piacentino, Building Inspection, Kim Ogle, Department of Planning
Service, and Tom Parko. Mr. King stated although he has not spoken with Ms. Salzman they have
been doing a considerable amount of work to resolve the issues that have been brought before the
Board today. Mr. King believes they are here today to deal with a complaint that suggests the
Schack's need a SPR for this property, and this representation is based on the claim by the Building
Department who believes there has been a change of use. Mr. King stated it is Mr. Schack's belief
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October 11, 2011 2011-2687
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there has not been a change of use, and that the property is still being used in a way that is an
allowed use by right. Mr. King stated the original notice was sent in May, 2011, and stated there
was a change in use from a welding shop to a roustabout company. Mr. King stated when Mr.
Schack responded to this letter they explained they are not running a roustabout company, they're
operation involves the storage of tanker trucks overnight, and these trucks also do not have any
product in them while being stored. The trucks leave the site, go to the oil fields, and then to the
distributor or oil refineries to be emptied and then return to the site unloaded to park overnight. Mr.
King further stated there can be some occasional maintenance done to the trucks in order to keep
them in running condition but it is not considered a mechanical shop or a welding shop. Mr. King
stated the business the Schack's are conducting now has a less Industrial use than the welding
shop that was being run before them, which was brought to staffs attention during the pre-
application meeting. Mr. King stated after the pre-application meeting, which was held June 3,
2011, Kris Ranslem, Department of Planning Services, issued a memorandum that identified the
issues that needed to be addressed in order to keep moving in a forward direction. Mr. King stated
the memorandum listed several items that needed to be addressed; one being,the Schack's would
need to apply for a SPR; however, they would first need to obtain a building permit because of a
change of use for the site. He further stated the structure the memorandum is referencing was built
in the 1960's before there were building codes. Mr. King stated the cascading effect of having to get
a building permit and back fill what was not completed when the building was built creates a number
of problems, the first being, there is a requirement from the Building Department to get a letter from
a structural engineer stating the building is in compliance with the 2006 International Building Code,
which the Schack's feel is impossible, further stating the only way to bring the building into
compliance would be to demolish the building and start over. Mr. King spoke with Frank
Piancentino, Building Inspection, who told him if he could get a letter from the structural engineer
stating the building meets specific performance standards, that would be satisfactory. Mr. King
stated the Schack's have contacted a structural engineer,who in turn wrote a letter which addressed
the concerns of staff, also stating they would meet all the performance standards; however, the
letter was not acceptable once is was received by Mr. Piancentino, who stated they would need to
do some further investigation. Mr. King stated he forwarded the comments on to the structural
engineer,who then informed Mr. King that he will have to go back to the building and open up every
connection to make sure the floor foundation footers are attached to girders properly. Mr. King
stated he does have an email from the structural engineer stating what he would need to do. Mr.
King further stated the Schack's have already paid $2,800.00 for him to inspect the building the first
time and will have to pay a significant amount of money for him to come and inspect the building
again, which is a concern of the Schack's. The Schack's feel they continue to chase an objective
that seems to move every time they file a response with staff. Mr. King stated the second
requirement that came from the pre-application meeting was they had to file construction plans,
which the Schack's do not feel they need to do, they are not building anything and they did not
design the building or build it, and are unsure how they are to meet this requirement. Mr. King
stated another requirement the Building Department is asking of them is to provide handicap access
to the building; however, the Schack's do not feel this would apply to them because the building is
not open to the public, and the employees they do have are not handicaped nor are they allowed to
hire anyone with a handicap because of State regulations. At the pre-application meeting the
Schack's were also informed the Department of Public Health, as well as an engineer, will need to
perform an inspection on the septic system to make sure it is working properly for all the potential
people that could be using it. Mr. King stated they have also been asked to put together a waste
management plan; however, they are covered by the Department of Transportation which has
significant regulations of how to care for the trucks and the handling of the material they carry. He
further stated the trucks are empty when they are at the site overnight. The Schack's are also being
asked to do a dust abatement plan, and they are willing to work with staff in order to come up with a
plan to help in any way they can. The Schack's have also been asked by the Department of Public
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October 11, 2011 2011-2687
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Works to provide a better defined access to the property; however, there are not a lot of businesses
around them, the property is fenced, and there is only one way in and out of the property. Mr. King
stated the Schack's will, however, do what they need to do to make the entrance more visible. Mr.
King stated he feels his clients have been willing to work with the Department of Planning Services
and felt they were moving forward; however, they then received the notification from Ms. Salzman
stating there would be a hearing today regarding the violations on the property. Mr. King stated the
Schack's do not feel there has been a change of use, and the existing use is a use by right which
should not trigger an obligation to get a SPR. Mr. King stated he is aware of Weld Counties zoning
requirement stating every business needs to have a SPR. When he spoke with Kim Ogle,
Department of Planning Services, he had stated the County is trying to keep track of the different
types of businesses and what services they are providing, which is reasonable; however, Mr. King
stated they feel the County already knows what kind of business is being run at this site. Mr. King
stated on March 3, 2000, SPR 391 was completed by the previous owners and was approved by
Kim Ogle, as part of this properties original evaluation of a Non-Conforming Use (NCU). Mr. King
stated in 2008, while reviewing the file, Mr. Ogle discovered they did not have a NCU questionnaire
on the property,which then led to Ms. Salzman sending a letter to the previous owners to fill out and
send back to staff, which was completed. In October, 2008, Ms. Salzman then sent out a violation
letter to the prior property owners, which prompted yet another NCU questionnaire to be completed.
The second NCU questionnaire was then reviewed by Mr. Ogle, who after reviewing, issued a
confirming letter on November 7, 2008, of a new NCU permit certification. Mr. King stated the
Schack's then purchased the property, and lessened the burden of risk of what is allowed in an 1-3
zone district. They then received a letter from Ms. Salzman stating there was a violation on the
property regarding the setbacks and indicating the Schack's need to apply for a SPR. The Schack's
are aware of the setback issue, but again do not believe a SPR should be required of them. Mr.
King further stated it is the owner's position that there has not been a change in use and asks that
the Board re-evaluate what is being required of them by staff.
In response to Commissioner Conway, Ms. Salzman stated this was complaint driven; however,she
does not have a notation of where the complaint came from in the file, nor do they take staff
complaints any longer, so it would have had to come from a public citizen, the Sheriffs Office, or a
Municipality.
In response to Chair Kirkmeyer, Tom Parko, Department of Planning Services, stated he could
speak of NCU 490 from 2008. This particular NCU was for a welding company that had no
employees, only family, a small amount of outside storage, and the owner during this time was Lloyd
Burke. Mr. Parko stated this NCU was established in 2008, for the use of a welding company in the
1-3 Zone District. Mr. Parko further stated he did not have the NCU in front of him to verify the
specifics and will need to look for further details when he returns to the office. Mr. Parko stated in
speaking with Ms. Salzman it seems that the SPR was withdrawn and never issued. Ms. Salzman
stated in 2000, there was an SPR that was applied for; however, it was withdrawn and never
finished, further stating there is one NCU that was issued for a Lloyd Burke for the operation of
Brighton Welding Business, at which time it was proven that this particular business had been in
operation prior to the requirements of the SPR. Chair Kirkmeyer clarified they did not need a SPR
and Ms. Salzman concurred, Brighton Welding Business did not require the SPR, therefore there is
no SPR for this property. Ms. Salzman further stated there has been a business in this building the
entire time,first, Brighton Welding Business, which shut down, and then the current business that is
being ran by the Schack's.
In response to Chair Kirkmeyer, Mr. Parko stated he will have to review the changes that were made
to the code to verify the language, and how it would apply to this matter,further stating the changes
made to the code in Section 23-7-30 could have taken place in the middle of this violation and was
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October 11, 2011 2011-2687
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missed; therefore, it would confirm there is no violation at this site. Chair Kirkmeyer stated it
appears there has been a business with outside storage on the property from the 1960's and she is
not seeing the difference with what business is currently being conducted. Mr. Parko stated staff is
here today to present their findings and to have the Board's input and insight as to whether there
has been a change in use on the property from a welding business to an oil and gas hauling
company, storing their empty trucks overnight, both with some outside storage available. Mr. Parko
further stated if the Board does not see a change in use,then,there will be no violation. In response
to Chair Kirkmeyer, Mr. Parko stated the reason staff conducts the pre-application meetings is so
they can visit with the applicant to discuss what their plans are for the site, if they will be adding any
more uses, are they going to be expanding, will they be adding more employees, and what type of
business they are conducting.
In response to Commissioner Garcia, Richard Schack, property owner, stated they have 12 trucks
parked at the site currently, further stating he has one additional truck parked in Greeley, and three
parked in Commerce City. He stated he spreads the trucks out for his drivers to use. Mr. Schack
stated not all the drivers come to the site, unless it is for minor upkeep maintenance on the truck,
such as tires being changed or an oil change. Mr. Schack stated there are only three people that
work in the shop and the rest of the employees are drivers. Mr. Schack further stated the trucks go
out in the morning and come back empty every night; however, not all 12 trucks are run each day
because of the schedule they keep, there are only three to four trucks that are moving every day.
Mr. King stated he has a letter that is signed by Kim Ogle from March 3, 2000, assigning a number
to the SPR on the property. He further stated the Schack's are not trying to be difficult, they are
moving forward with the information that has been given to them by staff. The Schack's are willing
to do what needs to be done; however, it seems they are running into a road block every way they
turn, they have spent a lot of money trying to figure this out, and still feel they are being threatened
of being shut down.
Mr. Parko stated depending on what the Board decides today will determine whether this is a
change of use or not, there is still a separate issue of a change of use and change of occupancy on
the building side. Mr. Parko further stated he did not know if those issues needed to be addressed
today as well. Mr. Parko stated even if a SPR is not required, there are still the issues of the
setbacks on the property and the determination of what type of business is being performed within
the building.
In response to Chair Kirkmeyer, Mr. Parko stated the change of use in the Planning and Zoning
Department is different than the change of use or occupancy in the Building Department. He further
stated if the Board determines a SPR is not needed, he still believes there are things that will need
to be addressed and completed on the building side.
Frank Piancentino, Building Inspection, stated there are no historical building permits for this site
according to the Weld County records. Mr. Piancentino stated staff believes there has been a
change of use from a welding shop to a repair garage, which does require a change of use based
on new occupancy. Mr. Piancentino stated because there are not any building permits currently on
record, staff did ask Mr. Schack for a review from a structural engineer for the building. Mr. King has
submitted a letter of the review that was conducted; in the letter the engineer classifies the building
as a category 1 building classification according to the ASCE7, Table 1-1 criteria. Mr. Piancentino
stated he responded back to him stating the criteria qualifies the building as a low hazard building,
generally for Agricultural uses, and staff feels this building should be classified as a category 2
building for the use that will be conducted, which is an oil and gas hauling company. He further
stated the letter from the structural engineer noted that not every structural connection and
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October 11, 2011 2011-2687
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component has been visually reviewed during the inspection and if all connections are not made
properly, it could change the load capacity of the building. Mr. Piancentino stated he did request
that he revise his letter, as well as revise his review of the structure. He stated staff believes there
has been a change of use, and that would require a building permit, and would have to be brought
up to current standards of accessibility. In response to Chair Kirkmeyer, Mr. Piacentino stated
anytime you have a change on the property it requires the proper permits,further stating in this case
the Schack's have changed the use from a welding business to a repair facility shop, which does
have different specific requirements.
In response to Chair Kirkmeyer, Mr. Schack stated they are not doing repairs on vehicles; however,
they do perform minor maintenance on the trucks they run.
In response to Commissioner Conway, Mr. Piancentino stated if the Board determines the Schack's
do not need to do a SPR, they still would be required to obtain a building permit for the change of
use, and if it is determined there is no change of use, there still needs to be a change of occupancy,
which again would require the building permit.
Chair Kirkmeyer stated she appreciates what staff has been doing and understands they are
following the building codes and the County Code which is in place for a reason; however, she feels
there is a common sense factor that is missing in this matter. She stated we have a use that is
allowable in an Industrial 1-3 zone, it is less of an impact than the previous use, it is similar as the
other use, other than they are not doing the welding,yet the County is requiring them to get all these
requirements in place. Mr. Piancentino stated staff can go back and look at the requirements and
the code to see if something was missed; however, it is his understanding this would be considered
a change of use. Chair Kirkmeyer and Commissioner Conway stated they do not agree.
Commissioner Conway stated he concurs with Chair Kirkmeyer,further stating he sees this as a less
impactful business, they are doing less hazardous work, the building has been there for over 40
years, and he does not see the change and does not believe a SPR is required.
Chair Kirkmeyer stated the City of Brighton has gone through the entire area and forwarded their
concerns over to the County, who now has to go to each business to determine whether or not they
are in compliance.
Commissioner Garcia stated he agrees with the motion and the sentiment that has been explained
by Commissioner Conway; however, in looking at what has been presented today he feels there is a
change of use in the sense there is an impact with the storage of the 12 trucks, three to four trucks
being utilized every day, and three to four employees on site every day. In response to
Commissioner Conway, Commissioner Garcia stated they have been provided with the information
about the previous business and know it was a welding operation, and he does not believe there
would be oil and gas trucks on the site of a welding company.
In response to Chair Kirkmeyer, Ms. Salzman stated she believes the welding business had two
employees, Mr. Burke and his son; they had two vehicles, and a minimal amount of outside storage.
Chair Kirkmeyer stated the basic reason we have a NCU is because of the setbacks of the building
which is actually a non-conforming structure and stated the use is conforming to the zone district.
Ms. Salzman concurred, also stating the NCU for the structure is part of the operation.
Commissioner Long stated either direction the Board goes today is questionable, further stating he
agrees with the sentiments of Commissioner Garcia, and feels we need a sense of consistency with
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October 11, 2011 2011-2687
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what is being presented. He does not understand the harm in doing a SPR, it is a minimal task that
can bring everything up to date.
Chair Kirkmeyer stated she does not agree the two businesses being presented are exactly the
same; however, she believes the use of the property is the same, both having outside storage, two
to three employees, and the use of an office within the structure. She further stated she has an
issue with getting the building certified and requiring a SPR now on something that did not require
one on buildings that were built prior to 1972. Chair Kirkmeyer stated she is not sure why the Board
or staff would require them to go through this; however,from an insurance perspective she believes
the Schack's would want to make sure the building is safe, but that falls on the responsibility of the
owners and not the County.
In response to Commissioner Garcia, Stephanie Arries,Assistant County Attorney,stated you have
to assume you have all the information with regard to the original conforming use,then it is a factual
determination, and the new applicant would have the burden of proving the use has not changed
from the prior use. Ms. Arries further stated she is confused listening to what staff actually has in
the file for existing documentation in regards to an NCU.
In response to Chair Kirkmeyer, Ms.Arries stated she believes in listening to Mr. Piancentino, he is
saying the use of the structure is what drives the determination as to whether or not the structure is
being used as they have determined. There are two separate issues, one the structure, and two the
use of the property. Ms. Arries stated if the structure, is being used in a different way or for a
different use, then it comes back to the use of the structure not necessarily the use of the property.
Ms. Arries further stated it is apparent to her that in both cases they are being driven by the use.
Ms. Arries gave an example; if you change the use of an old building from a store house to an office,
then you change the category, and staffs way of analyzing that property is different and would have
to meet different criteria. She further stated the building code issue is driven by the use. In
response to Chair Kirkmeyer, Ms. Arries stated if the use for the building never changed there would
be no building code requirement; however, the problem staff is having with this case is that there
was never a building permit, so while they allowed the use because it continued in place, they now
do not have a basis for comparison to know what the building was actually constructed for in the
beginning. Ms. Arries stated she feels this is why staff has been more critical in terms of, is the
building a safe structure for what it will be utilized for,
Commissioner Conway stated Mr. Piancentino has a letter from a structural engineer that the current
occupants provided, regarding the building. He further stated Mr. Piancentino did have some
questions regarding how the engineer categorized the building; however, Commissioner Conway
feels that is something that can be addressed with a follow-up letter.
Mr. King stated he has spoken to the engineer,who stated he is willing to address the concerns with
staff, and the Schack's are also willing to discuss these issues with staff.
Commissioner Garcia stated he appreciates the comments from the others and does not believe
there is an immediate danger to anyone; however, when they are talking about the code, this is a
situation that would require a SPR and the burden is on the applicant to prove the consistency of
use and impact of the site.
Commissioner Conway moved to dismiss ZCV#1100059 against Schack Properties, LLC, with a
finding that the use is conforming to the zone the property is located in. There being no further
discussion, the motion carried three to one, with Commissioner Garcia opposed.
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October 11, 2011 2011-2687
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There being no further discussion, the hearing was completed at 11:00 a.m.
This Certification was approved on the 17th day of October, 2011.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:"," ' 14„, ARIA /.;
Barbara Kirkmeyer, Chair
Weld County Clerk to the Board — )
Ecanc I La BY: 19�-1,t.
P. ay, Pro-Tern
Clofk to the Board k/
1361 i F. Garcia
APPROVED AS TO FORM:
/i<'1 �' 7 ® avid E. Long
County Attorney EXCUSED
Douglas Rademacher
CD#2011-10
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October 11, 2011 2011-2687
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