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Home My WebLink About20112785.tiff HEARING CERTIFICATION DOCKET NO. 2011-58.A RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1785 FOR ANY USE PERMITTED AS A USE BY RIGHT, ACCESSORY USE, OR USE BY SPECIAL REVIEW IN THE COMMERCIAL OR INDUSTRIAL ZONE DISTRICTS (OIL FIELD PRODUCTS MANUFACTURING), PROVIDED THAT THE PROPERTY IS NOT A LOT IN AN APPROVED OR RECORDED SUBDIVISION PLAT OR PART OF A MAP OR PLAN FILED PRIOR TO ADOPTION OF ANY REGULATIONS CONTROLLING SUBDIVISIONS, IN THE A (AGRICULTURAL) ZONE DISTRICT- DORIS CUNNINGHAM A public hearing was conducted on October 19, 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 Also present: Acting Clerk to the Board, Esther Gesick County Attorney, Bruce Barker Planning Department representative, Chris Gathman Health Department representative, Lauren Light Public Works representative, Heidi Hansen The following business was transacted: I hereby certify that pursuant to a notice dated August 19, 2011, and duly published August 24, 2011, in the Fort Lupton Press, a public hearing was conducted on September 28, 2011, to consider the request of Doris Cunningham, for a Site Specific Development Plan and Use by Special Review Permit #1785 for any Use Permitted as a Use by Right, Accessory Use, or Use by Special Review in the Commercial or Industrial Zone Districts (oil field products manufacturing), provided that the property is not a lot in an approved or recorded subdivision plat or part of a map or plan filed prior to adoption of any regulations controlling subdivisions, in the A (Agricultural) Zone District. At said hearing, the Board deemed it advisable to continue the matter to October 19, 2011, to allow adequate time to complete a Planning Commission hearing which was continued to October 4, 2011. Bruce Barker, County Attorney, made this a matter of record. Chris Gathman, Department of Planning Services, presented a brief summary of the proposal, entered the favorable recommendation of the Planning Commission into the record as written, and stated this application is intended to correct a zoning violation for operating the business without the appropriate permits. He stated the initial complaint was received from a private citizen and, if the USR is approved, the Violation will be dismissed; however, if denied, the site will need to be cleared within 30 days or be referred to the County Attorney for legal action. He displayed an aerial photograph and described the surrounding land uses. He further stated staff UZ; P U 2011-2785 i } 15 -1 / PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 2 has received several calls and complaints from surrounding property owners expressing concern with the close proximity of the business to the property line, painting fumes and overspray, hours of operation, number of employees, inconsistency between the approved use and the current operation, dust, traffic, impacts to health conditions, and incompatibility with adjacent residential uses. Mr. Gathman stated, if approved, one of the letters of concern requests the applicant be required to install a fence surrounding the property to serve as a visual barrier, that they adhere to noise limitations consistent with single family homes, construct a filtered indoor paint booth, and adhere to limited hours of operation. He stated 11 referral agencies reviewed the proposal and seven responded with comments that have been addressed in the Conditions of Approval and Development Standards. He further stated the site is located within the three-mile referral area for the Town of Pierce, which indicated no conflict with its interests, and the Town of Ault, which did not submit a referral response. Mr. Gathman stated the September 6, 2011, Planning Commission hearing was continued to October 4, 2011, to allow adequate time for the referral agencies to review the current painting activities. Upon further review, the Colorado Division of Wildlife indicated no concerns, and the Department of Public Health and Environment added Development Standard #19 to require a valid Air Pollution Emission Notice (APEN). He stated the applicant has applied for the necessary APEN permit and is proposing to paint outside on the south side of the shop building, and possibly construct a booth to paint indoors. He displayed aerial photographs of the site and surrounding area. In response to Chair Kirkmeyer, Mr. Gathman stated the applicant indicates the painting operations are only done occasionally and the APEN will address the proposed mobile use to paint at the job sites, rather than at the subject site. Responding to Chair Kirkmeyer and Commissioner Conway, Mr. Gathman indicated the locations of the painting operations and the surrounding residences, and he stated staff received no correspondence from the adjacent property owner to the southwest. Responding to Commissioner Rademacher, Mr. Gathman indicated the location of the property boundary and stated there is no easement to cross onto the other property to the east. Heidi Hansen, Department of Public Works, stated County Road 33 is a collector road with an average daily traffic count of approximately 156 vehicles. She stated the testimony provided by the applicant at the Planning Commission hearing indicated there may be more of an impact than what was reflected in the application materials; therefore, she requested the words "for the screening of the facility" be removed from Condition of Approval #8, which will allow staff more flexibility to address other impacts through the Improvements Agreement, if necessary. She further stated the applicant also needs to clarify the accurate number of semi tractor-trailers and proper placement of the outdoor storage. Lauren Light, Department of Public Health and Environment, stated the applicant will need to either enlarge the existing system or install a new one for the shop, the application proposes to apply water or magnesium chloride or recycled asphalt for dust control, and trash will be picked up weekly by Waste Management. She stated the waste from the painting operations will need to be addressed in the Waste Handling Plan, and staff has provided the applicant with some suggestions from the Colorado Department of Public Health and Environment to help ensure compliance with air quality regulations. She further stated Development Standards #6 through#20 address Health requirements, and in response to Chair Kirkmeyer, Ms. Light stated Development Standard #19 requires the applicant to maintain a valid APEN. 2011-2785 PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 3 In response to Commissioner Conway, Phil Brewer, Department of Public Health and Environment, reviewed the State recommendation for the record, endorsing powder coating, versus the current electrostatic technique, to reduce emissions and eliminate the need for air permitting. Mr. Brewer also noted the operation is located within the Nonattainment Area, which means the facility is required to reduce VOC's emissions or use compliant painting materials (less than 3.5 pounds per gallon). Cliff Simpson represented the applicant and stated he started operating from the site in mid-January, 2011, and since that time the business has grown, which resulted in changes to the application. He stated all of the equipment has been moved to ensure they are not encroaching on the property to the east, and the only remaining encroachment is the driveway for the neighbors to the north which overlaps the USR boundary by four or five feet; however, he has no problem with that. Mr. Simpson stated he would like to construct a 13-foot lean-to set back five feet from the northern property line to help block the view, as well as construct a fence along the eastern property line. Responding to Commissioner Rademacher, Mr. Simpson stated they did complete a month-long project in the driveway for an oil and gas rig trailer that would not fit in the shop, and all but one container has been removed to prevent driving over the septic system. Responding to Commissioner Long, Mr. Simpson stated the Recorded Exemption process corrected the property lines and there is no dispute. In response to Chair Kirkmeyer, Mr. Simpson stated he did acquire an APEN to address neighborhood complaints; however, indoor painting only removes the particulates; it does not remove the smell. He confirmed the operators are trained in electrostatic paint methods, most of the painting is done indoors; however, the paint booth must wait until the USR is approved and building permits are issued. He further stated the mobile APEN allows his operation to paint anywhere in the State of Colorado, and they try to paint most of the larger products at the job site. In response to Commissioner Conway, Mr. Simpson stated the shop was built in the 1970's and used for onion storage and warehousing. It was later used by a trucking company for mechanical maintenance, was vacant for two or three years, and then he purchased the property and has been operating trucks from the site since that time. Mr. Gathman confirmed there is a USR for the onion warehouse; however, if there was a trucking operation, it was never permitted as such. In response to Commissioner Rademacher, Mr. Gathman stated the USR site is 3.5 acres. Responding to Commissioner Garcia, Mr. Simpson stated he has a good working relationship with the resident of the house to the southwest. He also confirmed all of the activities are part of the same business and the only reference to the excavation business is in Development Standard #5 regarding the number of semi tractor-trailers, which should be amended to three (3) tractor-trailers to allow for growth without amending the USR. Commissioner Long commented the applicant needs to consider whether he is willing to make the necessary accommodations to house the growing business at a relatively small site. Commissioner Conway agreed and suggested the applicant consider the long term vision for the business and whether this is the best suited location. Mr. Simpson stated he hopes to outgrow the site and relocate, but for now he knows he must comply with the requirements that are applicable to this site. Responding to Commissioner Garcia, Mr. Simpson stated he contacted the neighbor to the northwest and found his concerns were based on past history, versus the current conditions. He stated the property owner to the north has come to express 2011-2785 PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 4 his concerns and he has done everything that he can do to remedy the situation; however, they do not have a good working relationship. Patsy Deines, adjacent property owner to the north, stated she appreciates any business conducted properly; however, the current use is not consistent with the permitted, historical use. She stated their property value is greatly decreased, they can't enjoy their property due to noise from the trucks that are left running for hours, they often exceed the allowed hours of operation, and the truck and paint fumes trigger her migraines. Ms. Deines submitted pictures, marked Exhibit F, which were taken within the last two or three weeks, and asserted the occurrence of paint fumes leaving the site exceeds the applicant's report of three or four times per month. She also submitted a letter from Mr. Brewer, marked Exhibit G, and stated it appears the business has already outgrown the property. She also expressed concern with the applicant's disregard for his neighbors, and employees creating a fire hazard by throwing out cigarette butts, and she questioned the quality of the proposed lean-to. Ms. Deines clarified the residence to the southwest is owned by the parents of the resident, and if approved, she requested on-site painting be prohibited, trucks be turned off when not in motion, there be no weekend operations, and a permanent fence be constructed around the entire property to limit the view and control blowing trash. In response to Commissioner Conway, Ms. Deines stated they purchased their property 12 years ago, they have lived there for 11 years, and the placement of their home in relation to the property line was approved by the County. Dustin Winter, surrounding property owner to the northwest, stated the business is not compatible with the rural residential and agriculturally zoned area, and the USR should be very specific and detailed; however, the applicant continues to make modifications during the review process. He expressed opposition to the paint fumes, the parking of trucks and derelict equipment in excess of the proposed application, increased numbers of employees accessing the site, excessive outdoor storage, lack of dust control, and exceeding hours of operation. He stated the applicant should not be allowed to operate the business until the necessary permits are obtained, including the required septic system. He stated two of the three neighbors are opposed, and the property owner to the southwest has a lot to gain if this permit is approved because they are in line to do a property exchange to obtain control of their driveway. In response to Chair Kirkmeyer and Commissioner Conway, Mr. Winter stated the original application proposed 13 employees, and since the site is already at capacity, he is not certain what the applicant could do to address his concerns. Steve Deines, adjacent property owner to the north, agreed with the prior comments and questioned why the applicant has been allowed to continue to operate despite a zoning violation and lack of proper permits. He explained they were amicable with Mr. Simpson in the beginning; however, as the business grew, the noise and paint fumes increased and he has become difficult to work with. Mr. Deines asked that, if approved, the applicant be required to construct an eight-foot opaque fence, rather than a lean-to; and limit painting activities to the job sites or only to certain weekdays so they can enjoy their property on the weekends. He also referred to the Weld County Right to Farm Statement and urged the Board to protect the rural atmosphere and way of life. 2011-2785 PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 5 Bill Hall represented the applicant and stated the Tateyama Family used to run 400 trucks a month during the harvest season and the proposed use is not a drastic change from the historical use. Mr. Hall mentioned Mr. Winters has expressed interest in obtaining the site as a rental; the applicant has only painted at the site on five occasions since July; and if a farmer were operating from the site, he could paint a tractor with no special permits. He reviewed the situation resulting in the confusion regarding the lot lines, which has been addressed through the Recorded Exemption process. In response to Chair Kirkmeyer, Mr. Hall agreed that although the Tateyamas used the facility all year, they did not do any painting; however, some of Ms. Cunningham's family members did paint stock cars at the site on occasion. He also stated he is the authorized agent for the USR application and he confirmed there is no residence on the site. Arnie Fiscus, friend of Mr. and Ms. Deines, stated he was at the site on a regular basis when the Tateyamas were operating because he was part of the company that was financing the business. Mr. Fiscus stated the current operation is nothing like the original permitted use and it negatively impacts the surrounding uses. He agreed there was a lot of truck traffic associated with the onion storage; however, it was part of a larger agricultural operation and there was no adjoining residential use at the time. He further stated he does not believe the proposed Conditions of Approval and Development Standards will adequately mitigate the incompatibilities, since this appears to be an industrial facility, there is uncertainty regarding the final end use, it creates negative health impacts for the neighbors, the applicant continues to operate in violation of what is proposed in the current application, and the storage and straw bale screening attracts mice, snakes, and coyotes, to the detriment of property owners on both sides of the line. In response to Commissioner Conway, Mr. Fiscus stated the site was maintained and very organized under the Tateyama ownership; however, what he observed at the site last night is similar to a junkyard. There being no further comments, Chair Kirkmeyer closed public testimony. In response to Chair Kirkmeyer, Mr. Simpson stated Doris Cunningham owns the site; however, he has a Lease/Purchase Agreement. Mr. Barker stated the Lease/Purchase Agreement authorizes Mr. Simpson to bind the property owner to conditions on the property, and Mr. Hall can do the same as the authorized representative. He stated if the Lease/Purchase Agreement does not go through, then there would still be a USR on the property, which Ms. Cunningham could vacate. Mr. Simpson stated it was never intended that the site be limited to two semi trucks, and he explained the use has expanded during the time it took to try and address the complaints along the way. He stated he has agreed to use paint booths, construct fencing, improve parking, make property line adjustments, and install a new septic system, and once approved, he will move forward with utmost diligence. In response to Commissioner Rademacher, Mr. Simpson stated he has incurred thousands of dollars in permitting and equipment; however, the main problem with indoor painting is there will still be a smell, which is the complaint of the neighbors. Responding to Chair Kirkmeyer, Mr. Simpson stated they currently do 95 percent of the painting off-site. Following discussion regarding Development Standards#18 and #19, Mr. Brewer confirmed the APEN requires containment of particulates. In response to Commissioner Garcia, Mr. Gathman stated there was no referral response from the Ault Fire Protection District. Ms. Hansen stated staff typically requires a 20-foot access, unless an emergency responder requires more. She further stated the access standards have 2011-2785 PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 6 been met in the submitted plan; however, the proper placement of outdoor storage and employee parking needs to be specified. Responding to Chair Kirkmeyer, Mr. Simpson stated if the trucks are not being used, they will be shut off, unless an engine is being serviced, which requires approximately ten minutes to warm up and up to one hour to determine what maintenance is necessary. Mr. Gathman stated the Development Standards indicated all maintenance will be off-site; however, Mr. Simpson clarified he does basic maintenance and there is a separate company that comes in to do major repairs. Responding to Chair Kirkmeyer, Mr. Simpson explained the unloading process which requires a running engine. He further stated the Planning Commission agreed to hours of operation from 7:00 a.m., until 8:00 p.m., Monday through Saturday. Mr. Gathman stated the original USR is still on the site and he requested a new Condition of Approval #9 to state, "USR-490 shall be vacated entirely, or the applicant shall submit a partial vacation of the plat vacating the boundary of USR-490 within the boundary of Lot B of Amended Recorded Exemption #991." Mr. Barker stated the Resolution should also include language that requires Quit Claim Deeds which convey the properties to the current owners of Lots A and B, and the Lease/Purchase Agreement needs to be amended to reflect Lot B of RE-991, rather than the original Recorded Exemption description. Commissioner Rademacher stated he has no concern amending Development Standard #5 to increase the number of semi tractor-trailers to three (3). Chair Kirkmeyer stated she does not support the application because it is not compatible with the original use, he came in later, and she does not believe the use can be mitigated to ensure the health, safety, or welfare of the neighborhood. Commissioner Garcia stated he is in agreement with allowing a total of three semi tractor-trailers on the site. Commissioner Rademacher proposed the painting be conducted indoors until there is an appropriate APEN; however, there was not a majority to make the change. Commissioner Garcia stated he has contemplated six Development Standards; however, he is not sure they would adequately mitigate the concerns. Commissioner Long stated Mr. Simpson is running a good business; however, he is a victim of his success and it appears he has already outgrown the site and further limitations to the permit would result in failure and he does not support the request at the current location. Chair Kirkmeyer agreed mitigation efforts will harm the business. Commissioner Conway commented Mr. Simpson is a great business person to accomplish this level of success in a short time; however, he agreed the necessary requirements will negatively impact the business model. He stated the applicant needs to find a site that is more compatible with his end goals. Commissioner Rademacher stated the Board should place the necessary requirements and leave it up to the applicant to determine whether he can succeed. Commissioner Long disagreed and stated the use is industrial, not agricultural. Commissioner Garcia stated he found the testimony and evidence presented by Mr. Winter and Mr. and Ms. Deines to be credible and he also expressed concern with referrals reviewing application materials which are not a clear indication of the end use. Commissioner Long moved to deny the request of Doris Cunningham for a Site Specific Development Plan and Use by Special Review Permit#1785 for any Use Permitted as a Use by Right, Accessory Use, or Use by Special Review in the Commercial or Industrial Zone Districts 2011-2785 PL2127 HEARING CERTIFICATION - DORIS CUNNINGHAM (USR-1785) PAGE 7 (oil field products manufacturing), provided that the property is not a lot in an approved or recorded subdivision plat or part of a map or plan filed prior to adoption of any regulations controlling subdivisions, in the A (Agricultural) Zone District, since it does not meet criteria listed in Section 23-2-230.B.1.a through e. The motion was seconded by Commissioner Garcia. Upon a call for the vote, the motion carried four to one, with Commissioner Rademacher opposed. There being no further discussion, the hearing was completed at 12:30 p.m. This Certification was approved on the 24th day of October, 2011. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: j , -C-a— rbara Kirkmeye�, Chair Weld County Clerk to the Board re—, cTh Sean CpTiay, Pro-Tem BY: (the Boars / / ) Deputy C k to the Boar��..� V V ,, . / 4 % W F. Garcia (z;*;J a t ± c' ' E. L / mach 2011-2785 PL2127 EXHIBIT INVENTORY CONTROL SHEET Case USR #1785 - DORIS CUNNINGHAM Exhibit Submitted By Description A. Planning Staff Inventory of Items Submitted B. Planning Commission Resolution of Recommendation Summary of Hearing (Minutes dated 9/6/2011 and C. Planning Commission 10/4/2011, 2011) D. Clerk to the Board E-mail re: Continuance request, dated 9/1/2011 E. Don Parsons E-mail of Opposition, dated 10/18/2011 F. Patsy Deines Pictures G. Patsy Deines E-mail string from Phil Brewer, dated 8/29/2011 H. J. K. L. M. N. O. P. Q. R. S. T. U. V. 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