HomeMy WebLinkAbout20100580.tiff HAYNES & HAYNES, LLC
ATTORNEYS AT LAW
DAVID M.HAYNES 2960 Diagonal Highway, Suite 207 TP.LP:PiIONI:(303)449-3891
MARK M.I IAYNES Boulder, Colorado 80301 FACSIMILE(303)449-3992
March 16, 2010
VIA CERTIFIED MAIL/RETURN RECEIPT REQUESTED
Board of County Commissioners
Weld County
915 10th Street
Greeley, CO 80631
VIA CERTIFIED MAIL/RETURN RECEIPT REQUESTED
Bruce Barker, Esq.
Weld County Attorney
915 10th Street
Greeley, CO 80631
Re: Jacob and Carolyn Bossley - Notice of Claim Pursuant to C.R.S. 24-10-101 et seq
Dear Commissioners and Mr. Barker:
We are writing to give notice pursuant to C.R.S. 24-10-101 et seq. regarding certain claims
for damages of Jacob M. Bossley and Carolyn Bossley relating to their property located at 2000
County Road 20 '/2, Longmont, Colorado 80504 (the "Property"):
L CLAIMANTS AND CLAIMANTS' ATTORNEYS
Claimants are Jacob M. Bossley and Carolyn J. Bossley, 5419 Wolf St., Frederick,
Colorado, 80504.
Claimants' attorneys are David M. Haynes and Mark M. Haynes, Haynes & Haynes, LLC,
2960 Diagonal Hwy, Suite 207, Boulder, Colorado 80301. Telephone number: (303) 449-3891.
II. BASIS OF CLAIM
The Bossleys' Property is a 1.46 acre vacant lot in Weld County. The Bossleys are retired
and purchased the Property in November 2007 in order to build their retirement home. They paid
$165,000,used a large portion of their life savings,cashing in their whole-life insurance policies of
$25,000 and $30,000, and taking out a $128,000 loan against their existing home(which was free
and clear) in order to purchase the property. The property was advertised by sellers, Tammy Lee
Daniels and Dale R. Daniels(the"Daniels") as"Build your dream home here on 1.46 acres!"and it
had a water tap. A copy of the advertisement is attached as Exhibit 1.
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Weld County Commissioners
Weld County Attorney
March 16, 2010
Page 2 of 4
Before the Bossleys closed on the purchase of the Property,they met with planner Michelle
Martin of the Weld County Planning Department to confirm that the property was buildable. She
told the Bossleys that she was familiar with the property because she had worked with Tammy
Daniels concerning the subdivision exemption creating the lot. I The Bossleys also showed Ms.
Martin the advertisement and explained that before they purchased the Property, they needed to
make sure the property was what it was advertised to be. Ms. Martin assured the Bossleys that the
Property was buildable and that even though the Property was in the floodplain, it just meant that
they would need to obtain flood insurance. The term"floodway"was never mentioned during the
meeting. The Bossleys left the meeting with an application to build their home, a barn, and
putting in a septic tank.
Carolyn Bossley called David Bauer, P.E. CFM of the Weld County Public Works
Department at a later date. In the telephone conversation, Mr. Bauer told Mrs. Bossley that he was
looking at the map of the Property as they spoke. There was never any indication of any type of a
problem. Mr. Bauer went over general rules for building, setbacks from the property line, filling
out grading permit applications, and making sure the dirt would not affect the neighbors. He also
provided the phone number of Public Works. He explained that the lowest finished floor had to
be one foot above the floodplain elevation and that the Bossleys would need flood insurance
underwritten by FEMA. He reinforced what Ms. Martin had said about flood insurance being
needed and that its cost was somewhat higher than regular insurance. He also suggested that the
Bossleys tie their septic tank with the Daniels' septic tank since it was already approved or use the
same engineer that the Daniels used to do their septic tank.
On September 21, 2009 Tammy Daniels called the Bossleys and told them she had asked
Weld County for a building permit for a pole barn with living quarters on the adjoining 7-acre
Daniels property and was told that it was unbuildable because it was in the floodway.
In October 2009, Carolyn Bossley and attorney Jonathan Beninson met with Clay Kimmi,
Chris Gathman, and David Bauer of the Weld County Planning Department and Tammy and Dale
Daniels. At the meeting all persons present were verbally told that their Property was located
entirely within the floodway and was not buildable. Clay Kimmi said that the property had not
been buildable since 1982.
In January 2010, in response to the Bossleys' request, Mr. Bauer provided the FEMA 1982
Flood Insurance Rate Map ("FIRM"), Community Panel Number 080266 0850 C, revised
September 28, 1982. The Bossleys also received a letter dated January 18, 2010 (Exhibit 2
attached) from David Bauer advising:
1 The Property was created as a building lot in Weld County Subdivision Exemption No. 1078 in 2006.
An August 7, 2001 Memorandum from Julie A. Chester, Planner III,to Sharyn Frazier in the Weld County file
for SE-1478 identifies the two original parcels (Original Parcels 1 and 2 in SE-1478) as both legal and
buildable.
Weld County Commissioners
Weld County Attorney
March 16, 2010
Page 3 of 4
• The Boulder Creek floodplain is approximately 5600 feet wide in the vicinity of the
property,
• The property is located within 250 feet or less of the Boulder Creek channel,
• The property is shown as lying entirely in the floodway in a 1977 study of the St. Vrain
River, Boulder and Idaho Creeks in the Del Camino area by Kucera& Associates, and
• Given the proximity of the Boulder Creek channel to the [Bossleys] lot,it is highly unlikely
the property lies outside the Boulder Creek floodway.
The impact of the above findings is that because the Property is purportedly located
entirely within the floodway, the Bossleys could not build their retirement home on the parcel.
Section 23-5-250 B of the Weld County Code states, "No development shall occur in the
Floodway District with the exception of FLOODPROOFED agricultural exempt buildings.
Agricultural exempt buildings are defined in Chapter 29. ..."
Mrs. Bossley requested a copy of the Official Weld County Flood Hazard Overlay District
Zoning maps2 from Mr. Bauer. He emailed back identifying the Flood Insurance Rating Maps
(FIRM) published by FEMA as the Official Weld County Flood Hazard Overlay Zone maps and
referred the Bossleys to FEMA's website to generate a "firmette" of the FIRM. (The map on the
website is the FEMA FIRM, Community Panel Number 080266 0850 C, revised September 28,
1982).
According to Weld County Planning Director Trevor Jiricek there is no Official Weld
County Flood Hazard Overlay Zoning Map.
The Bossleys' attempted to appeal the January 18, 2010 letter (Exhibit 2) to the Weld
County Board of Adjustment. It is the Bossley's position that the statement made by Weld
County representatives prior to the Bossleys purchasing the Property accurately reflected that the
property was buildable and are consistent with the August 7. 2001 memorandum from Julie A.
Chester, Planner III,to Sharyn Fraser. In addition,because the January 18,2010 letter(Exhibit 2)
is not based upon the Official Weld County Flood Hazard Overlay District Zoning Maps,and such
maps do not exist,there is no proper public notice of what the zoning districts are,particularly the
floodway and flood zone districts. Furthermore, the 1982 FIRM,which is the only map available
to members of the public, does not identify Floodway or Floodprone zones and predates any 1999
FEMA study referred to in §23-5-230.
2 According to §23-5-230(A), "...The FW (FLOODWAY) District is shown on the Official Weld County Flood
Hazard Overlay District Zoning Maps. These maps were developed using the Flood Insurance Study for
Weld County,revised September 22, 1999,prepared by the Federal Emergency Management Agency. ..."
Weld County Commissioners
Weld County Attorney
March 16, 2010
Page 4 of 4
The Bossleys' claims include that the County is precluded from now asserting that the
Property lies in the floodway, for violation of their constitutional rights under 42 U.S.C. § 1983
that because there was and is no Official Weld County Flood Hazard Overlay District Zoning map
as identified in §23-5-230(A) of the Weld County Code and that accordingly there is nothing to
provide due process notice to the Bossleys or support the County's position that the lot is not
buildable under Weld County Zoning regulations as set forth in the January 18,2010 letter. There
is also nothing under Weld County Code to support the change in position that the lot is now not
buildable. The Bossleys also assert they are being denied due process by arbitrarily being denied
any right to appeal to the Weld County BOA. The Bossleys also assert the County's actions
constitute inverse condemnation.
III. INVOVLED PUBLIC EMPLOYEES
It is believed county employees that may have been involved in this action may include:
July A. Chester, Sharon Y. Fraser in the year 2001; Michelle Martin and David Bauer in 2007;
David Bauer in 2009 to 2010, and Trevor Jiricek in 2010.
IV. DAMAGES
In reliance upon the County's accurate position set forth in memo of August 7, 2001 the
Bossleys purchased the property on November 28, 2007 and have suffered damages including the
purchase price and costs and attorneys fees with respect to the property. The Bossleys' damages
have not been fully been determined at this time, but includes the $165,000.00 paid by the
Bossleys for the Property, closing costs of$207.50, appraisal costs, past and future real property
taxes in an undetermined amount they have paid and will pay on the Property, past and future lost
interest on a tax sheltered annuity they cashed in plus taxes on the annuity, loss of past and future
interest and gains on monies they had in mutual funds and CD's that were cashed in, past interest
paid on the $128,000 loan against their existing home incurred to buy the Property of
approximately $11,298.00 plus ongoing future interest on said loan, loss of value in an
undetermined amount of the whole-life insurance policies they cashed in plus increased costs of
replacement policies in an undetermined amount, expenses incurred and time spent incurred of
approximately $3375.00 for tree removal and new trees planted on the property and other
landscaping improvements, mileage and costs of travel, prejudgment interest, and past and future
attorneys' fees, costs and expenses.
Very truly yours,
HA NES & HAYNES, LLC
VV\
David M. Haynes
MMH/clg/nsc
cc: Mr. and Mrs. Bossley
• 2000 County Road 20. 5, Longmont
Mfr•' ' ...
Build your dream home here on 1.46 acres!
Only $165,000
You can 't find a more beautiful place to build your dream home.
G City water tap included as well as power and telephone on property
Gorgeous mountain views. The gravel pit is expected to complete
operations in 24-30 months leaving behind a beautiful lake. This
property backs to Boulder Creek. Don't miss out on this building
site, won 't last long.
Call Don at 303-327-6828 for your private showing.
EXHIBIT
Marketed by: O m C
Re/Max Horizons RIEA'„,ff
Don Newton 8080 WCR 13, Suite 200 • Firestone, CO 80504 •
Broker Associate Office: 303-327-6828 • Cell: 303-981-5417 • Fax: 303-327-6840•
•
F,mail: DNewton( colohomes.net • Website: www.FindThePerfectPronertv.com•
PUBLIC WORKS DEPARTMENT
lie P.O. Box 758
WI 1111 H Street
PHONE: 970-304-6496
COLORADO FAX: 970-304-6497
Carolyn and Jacob Bossley
5419 Wolf Street
Frederick, CO 80504
January 18, 2010
Dear Mr. and Mrs. Bossley,
You had requested a letter describing the floodplain-related restrictions on your property (Parcel
# 131317400081, addressed as 2000 Weld County Road 20.5, Longmont, CO 80504). The
property lies within 250 feet of the channel of Boulder Creek, and entirely within the 100-year
floodplain. The location of your property relative to the Boulder Creek floodplain is shown on
FIRM Community Panel #080266 850 C.
Consistent with County Code Sections 23-5-250 and 23-5-260, and with Federal Code and
FEMA regulations, restrictions are applied to development and construction in the floodplains
and floodways of drainages in Weld County.
Per County Code, "no development shall occur in the Floodway District with the exception of
flood proofed agricultural exempt buildings". The floodway district includes land which is
within the high hazard area of an intermediate regional floodplain. This includes the channel of
a river or other watercourse and the adjacent land areas required to carry and discharge the
largest part of the base flood flow. The floodway is an extremely hazardous area due to the
velocity of flood waters which carry debris, potential projectiles, and erosion potential. In
Colorado, the intermediate regional flood (base flood) is the 100-year flooding event, that event
having a one (1) percent chance of occurrence.
Per County Code and Federal regulations, all proposed facilities including (but not limited to)
structures, fill material, driveways, and all other development must be located outside the
floodway and shall not cause a rise in the flood elevation (23-2-480(I) and 44 CFR 60.3(d)). In
addition, the installation of any septic system within the 100-year floodplain shall comply with
the Weld County I.S.D.S. floodplain policy. In accordance with the Colorado I.S.D.S
Regulations, no septic systems shall be installed within the floodway.
EXHIBIT
M:/Planning and Development Review/Floodplain Review/ Bossley Daniels Floodway Letter
The Board of County Commissioners has the obligation to provide adequate assurance that
proposed development in the County addresses the public safety, health and welfare. As a
participant in the National Flood Insurance Program (NFIP) administered by the Federal
Emergency Management Administration (FEMA), Weld County must also remain compliant
with NFIP and FEMA regulations and ensure that proposed development is reasonably safe from
flooding and will not cause harm to adjacent properties. Our findings regarding your case are:
• The Boulder Creek floodplain is approximately 5600 feet wide in the vicinity of your
property.
• The location of your approximately 1.5 acre parcel is within 250 feet or less of the
Boulder Creek channel.
• Your property is shown as lying entirely in the floodway in a 1977 study of the St. Vrain
River, Boulder and Idaho Creeks in the Del Camino area by Kucera and Associates.
• Given the proximity of the Boulder Creek channel to your lot, it is highly unlikely that
your property lies outside of the Boulder Creek floodway.
If you have any questions, please give me a call; our number is (970)-304-6496.
David Bauer, P. E. CFM
Weld County Public Works
Cc: Drainage File
M:/Planning and Development Review/Floodplain Review/Bossley Daniels Floodway Letter
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