HomeMy WebLinkAbout20093283.tiffMINUTES OF THE WELD COUNTY BOARD OF ADJUSTMENT MEETING
Tuesday, December 1, 2009
A regular meeting of the Weld County Board of Adjustment was held on Tuesday, December 1, 2009, at
the Weld County Commissioner's Hearing Room, 915 10th Street, Greeley, Colorado. The meeting was
called to order by Chair Bruce Fitzgerald at 11:20 a.m.
Roll Call Absent
William Hansen
Erich Ehrlich
Bill Hall
Bruce Fitzgerald
Benjamin Hansford
Jerry Neff
Bryant Gimlin
Jim Cosner
Also Present: Kim Ogle, Department of Planning; Ann Siron, Zoning Compliance; Cyndy Giauque, County
Attorney; and Kristine Ranslem, Secretary.
Jerry Neff moved to approve the November 3, 2009 Weld County Board of Adjustment minutes,
seconded by Bryant Gimlin. Motion carried.
CASE NUMBER:
PLANNER:
APPLICANT:
REQUEST:
LEGAL DESCRIPTION
LOCATION:
BOA -1062
Kim Ogle
JBL Properties LLC - Larry Shepard
Appeal of an Administrative Decision
Part SE4 of Section 34, T7N, R67W of the 6th P.M., Weld County, Colorado.
North of and adjacent to CR 74; west of CR 21.
Kim Ogle, Planning Services, commented that this is an appeal from a decision concerning a zoning
issue made in the administration or enforcement of the zoning chapter of the Weld County Code. The
Board of Adjustment has the power and duty to hear such appeals to ensure that the administration or
enforcement of the zoning provisions are exercised in harmony with the intent of the provisions of the
Code.
As background, this case was heard by the Board of County Commissioners at a public violation hearing
on June 16, 2009 for the parking of more than one commercial vehicle without the appropriate land use
permit.
At the June 16th hearing, JBL Properties stated they had reduced the number of commercial vehicles to
one (1) in an effort to come into compliance with the Weld County Code. However, the Board determined
that certain vehicles on the property are "Commercial Vehicles," as that term is defined in Section 23-1-90
of the Weld County Code. Those vehicles include a large truck and trailer that are wrapped in business
advertising for "Shocker Energy Drink."
The Board further determined that pursuant to the provisions of Section 23-3-30.M of the Code, no
commercial vehicles may be parked on the parcel if those vehicles are not related to the agricultural use
of the property. It was additionally determined that the vehicles with the "Shocker Energy Drink" signage
are not related to the agricultural use of the property. The Board's final ruling was that a violation
remained.
The Board referred the case to the County Attorney's office, but legal action was delayed for thirty (30)
days to allow time for all commercial vehicles to be removed.
Mr. Shepard is appealing the interpretation of the Weld County Code by the Board of County
Commissioners specific to his ability to park one commercial vehicle, regardless of use, on his property.
The Department of Planning Services accepted an application for this hearing and determined that the
submitted mAerials are in compliance with the application requirements of Section 23-6-20.A of the Weld
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2009-3283
County Code. Planning Services requested and received a referral response pertaining to this request
from Weld County Zoning Compliance, dated November 17, 2009.
Mr. Ogle stated that two Code Sections are important to this case. The first section is Section 23-1-90 of
the Weld County Code defines a commercial vehicle as " ... Any vehicle, other than an automobile, used
or previously used to facilitate an activity where goods, products or services are bought, sold or
transferred in ownership on a fee, contract or barter basis ..."
The second Code Section, Section 23-3-30.M of the Weld County Code allows for the parking of one
commercial vehicle, regardless of use, on lands zone (A) Agricultural.
The Department of Planning Services has previously interpreted the Code to allow for the parking of one
commercial vehicle, regardless of use, on agriculturally zoned land. Should this interpretation of the Code
not be upheld, the result would leave hundreds of Weld County citizens in violation of Section 23-3-30.M
of the Weld County Code, since hundreds of citizens drive or otherwise operate a commercial vehicle
from their property as part of their employment.
The Department of Planning Services therefore recommends approval of the appeal of an administrative
decision, and that the property owner be allowed to park and operate one commercial vehicle, regardless
of use, on the property owned by JBL Properties LLC. Approval of this appeal would cause dismissal of
violation case number ZCV09-00102 and pending legal action against JBL Properties, LLC.
Bryant Gimlin asked if when the Board of County Commissioners made their decision was it based on
there being more than one commercial vehicle at the time or on just the one vehicle. Mr. Ogle replied that
there was more than one commercial vehicle on the property; there were two commercial vehicles. He
added that it was in noncompliance and would require a Special Use Permit. At that hearing, the
applicant proposed to remove one of the commercial vehicles on the property leaving one commercial
vehicle as stipulated in Section 23-3-30.M.
Mr. Gimlin clarified if the Board denied it based on the one commercial vehicle remaining. Mr. Ogle said
that the Board of County Commissioners denied it as it wasn't strictly used for an agricultural use.
Jerry Neff asked what type of vehicle this is and if it is movable. Mr. Ogle said the vehicle is an RV with a
trailer attachment.
Robert Herrera, Hagen and Melusky Law Offices, 1613 Pelican Lakes Drive, Windsor CO, represents the
applicant. Mr. Herrera commented that this is not a case about advertising or obscenity or content or
material which is on the vehicle. This is a case to determine whether or not the Board of County
Commissioners correctly interpreted and applied the Code Section 23-3-30.M correctly to the situation
with JBL Properties.
Mr. Herrera commented that the code allows parking and operation of one commercial vehicle on
property of less than 80 acres in size. A second part of this code allows for parking and operation of up to
five (5) commercial vehicles if the property is greater than 80 acres and as long as those five commercial
vehicles are utilized basically in relation to the farming practice of that acreage.
If we strictly apply the way the code is written to this situation we have multiple different outcomes
potentially. In looking at the property, there has been one parcel broken up into three separate parcels.
The first parcel is 21.32 acres, the second parcel is approximately 91 acres and the third parcel is
approximately 21 acres. Therefore the applicant could actually have up to seven (7) commercial vehicles
on this land mass. This is not what the applicant is asking for. They are requesting to have one
commercial vehicle on the parcel that happens to be greater than 80 acres.
If we apply the Code to other property owners in Weld County there are very interesting outcomes. There
are property owners who have large pieces of acreage in Weld County. Unfortunately, these acreages
and farms are not able to sustain the families. They do require either one or both of the members of the
household to have second jobs and a lot of those jobs include driving trucks for organizations, such as
Swift, Wal-Mart, JBS, Snap On, etc. If we interpret the Code the way the County Commissioners have
this would not allow these farms that have greater than 80 acres to park these commercial vehicles at
their residence. This would have widespread implication as hundreds of residents of Weld County would
also be in violation of this Code.
Mr. Herrera stated that they are asking to be allowed to park the one commercial vehicle on the 90 acre
parcel and that there will be no further complications.
Mr. Neff asked Mr. Herrera to point on the map approximately where the vehicle is located in relationship
to Fox Ridge Subdivision. Mr. Herrera commented that the vehicle is in close proximity to the residence
for two reasons. One, because it is a very nice vehicle and there is no need to leave it in the field where it
can be vandalized or broken into. The second reason is because if it is out any further into the alfalfa
field rodents infest into the vehicle.
Mr. Neff asked if there have been any complaints from the Fox Ridge residents. Mr. Herrera indicated
that there have been complaints and that is why they are here today.
Bruce Fitzgerald asked if the vehicle is ever driven off the property. Mr. Herrera stated that it is driven off
the property at times. He said the vehicle has a trailer attached so it is loaded up with the family's
recreational vehicles. It is also used in the business capacity when they take it to large events.
Mr. Neff asked where the vehicle is parked. Larry Shepard, 9713 CR 74 said that the vehicle is parked
along the west side of the property.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
JoAnn Lovins, 1407 Fox Ridge Parkway, Severance CO. Ms. Lovins said that she is here on behalf of
several of her neighbors in Fox Ridge Subdivision. She is not representing the HOA. It has been their
hope to work together to resolve the disputes that have been brought forth.
It was clearly determined at the Board of County Commissioner meeting that these were commercial
vehicles and they were not directly related to agriculture. Mr. Shepard was given two options to either
apply for a USR or remove the vehicles. Comments from the Commissioners included that Mr. Shepard
work with the neighbors and consider locating the vehicles where they can be stored properly. She said
that there is a large RV and trailer, as well as a commercial van and a few other vehicles that have the
product name on it.
Ms. Lovins referenced the Weld County Comprehensive Plan and stated that she is concerned with some
spot zoning that is being considered. She feels that an approval of this appeal would clearly promote the
private interests of the owners and would diminish the welfare of the residents in the area.
The intent of allowing people to have Schwans or Budweiser trucks on their property is to allow farmers
who own and operate their farms to successfully be employed in a second job that involves a company
vehicle. We know that in these hard times, people often need more than one job. However the truck
would be parked overnight or on weekends because of frequent use. She asked the Board to inquire if
Mr. Shepard has this need or is his request equivalent to storage of commercial vehicles not related to
agriculture. Ms. Lovins commented that they believe that the request is a request for storage as part of a
development of a commercial business that is not related to agriculture.
Ms. Lovins also asked the Board to consider the applicant's behavior in that he didn't apply for a USR
and didn't approach any neighbors as he was asked to do. She expressed that this is clearly a
commercial business. Ms. Lovins added that she doesn't believe approving this request would meet the
current Code nor would it meet the intent of the future Code of the rural place.
Mr. Neff asked if Ms. Lovins and the neighbors she represents abut the properties in question. Ms.
Lovins replied yes. Mr. Neff asked if there are any trees or a fence which lines the property. Ms. Lovins
said that there is a rail fence and added that Mr. Shepard recently put up bales of hay along the west side
of the easement road. She said that it is about 4 bales high and 20-25 bales long.
The Chair called a recess at 11:45 a.m.
The Chair reconvened the meeting at 11:50 a.m.
Jeff Slupe, 1453 Red Fox Circle. Mr. Slupe asked if the appeal is approved to specify which commercial
vehicle is approved as there is more than one. He added that there is an RV and trailer. He further
added that there is a cargo van which comes to the site often. He stated that there have been some
vehicles stored in the garage of commercial use. He asked for clarification of which commercial vehicle
will be allowed and where it will be parked as it affects many of the homeowners.
Mike Lovins, 1407 Fox Ridge Parkway, handed out pictures as exhibits. Mr. Lovins expressed sincere
wishes for success to the Shepards in their venture.
Referencing digital images, provided to the Board, Mr. Lovins described Picture 1 is a picture of the
vehicle in question parked less than 200 feet from their back door. In addition to the violation, he believes
that there are also signage violations. He quoted the Weld County Zoning Supplementary District
Regulations Division 2 Signs Section 23-4-70 Paragraph A which states "No sign shall be structurally
erected, enlarged, constructed, reconstructed, relocated, refaced or otherwise altered without first
obtaining all required building permits from the Department of Building Inspection and, if required, zoning
approval from the Department of Planning Services and the Colorado Department of Transportation." In
Section 23-4-75 Definitions Portable Sign states "Any sign not permanently attached to the ground or
other permanent structure, or a sign designed to be transported, including but not limited to signs
designed to be transported by means of wheels; signs converted to A or T frames; menu and sandwich -
board signs; balloons used as signs; umbrellas used for advertising; and signs attached to or painted on
vehicles parked and visible from the public right-of-way, unless said vehicle is used regularly and
customarily in the normal day to day operations of the business." Mr. Lovins said he would like to know if
a permit is required for the signage on the vehicles and if that permit has been acquired.
Picture 2 is an aerial view taken from the Weld County website. The area outlined in Area A is where the
Shepards have stored their hay. It was a convenient place and worked for everyone. Area B is his
residence. Area C is where the Shepards have constructed a wall of hay bales. Mr. Lovins commented
that if Mr. Shepard would have stacked the hay around his vehicles to protect them and keep them out of
view it could have worked out for everyone.
Picture 3 is the wall of hay.
Picture 4 is where the vehicle is proposed to be parked.
Picture 5 is a picture of the vehicle. Picture 6 is a close up of the vehicle.
Mr. Lovins stated that his children eat their meals 200 feet from where this vehicle is parked. The first
and last images they see are of this vehicle. He doesn't believe this represents Weld County.
Mike Salazar lives in Loveland CO; however he previously resided at 1403 Fox Ridge Parkway. Mr.
Salazar doesn't agree that this vehicle is being used for advertising. He added that if it was being used
for advertising it would be parked closer to the road where it can be seen. Mr. Salazar stated that he is
storing some of the vehicles at his home in Loveland.
Mr. Neff asked Mr. Salazar if he is associated with this business. Mr. Salazar said that Mr. Shepard is a
very good friend and added that he does not have any association with the business.
Mr. Salazar referred to the picture of the RV and trailer. He stated that a vehicle is considered a vehicle
when it has a motor. In this case it is a vehicle which pulls a trailer.
The Chair closed the public portion of the meeting.
Erich Ehrlich asked if there is a permitting process for mobile signs. Mr. Ogle replied no.
Mr. Neff asked if the signage on the vehicle qualifies as a mobile sign. Ann Siron, Zoning Compliance,
said the problem that staff had with defining the vehicle as a mobile sign is that it would classify any
vehicle with any advertising (bumper sticker, Mary Kay, Creative Memory). Therefore that is why they
chose to classify this vehicle as a commercial vehicle and not a mobile sign. Mobile signs are typically
just that and not a vehicle.
Jim Cosner said that it was determined to classify this as a commercial vehicle. He asked for an
explanation between a commercial vehicle and a recreational home. Ms. Siron stated that when a
commercial vehicle is used in relation at any time for commercial gain or registered commercially it is then
considered a commercial vehicle. The Shepards have agreed that this is used to advertise a business
that they promote. She added that they have asked for registration to be provided; however Mr. Shepard
has not provided any.
Mr. Fitzgerald asked if the property is currently in violation. Upon an inspection after the violation
hearings, Ms. Siron commented that a van was on the property. She added that staff would need to know
if that van is registered commercially or for personal use as that was not an issue at the violation hearing.
Ms. Siron noted that an inspection was done yesterday and found that no vehicles were on the property.
Mr. Fitzgerald asked Mr. Ogle to reiterate what the staff recommendation is for this case. Mr. Ogle stated
that the Department of Planning Services has previously interpreted the Code to allow for the parking of
one commercial vehicle, regardless of use, on agriculturally zoned land. Therefore the Department
recommends the appeal of the administrative decision and that the property owner be allowed to park and
operate one commercial vehicle, regardless of use, on property owned by JBL Properties LLC.
Mr. Ehrlich referred to the comment that hundreds of citizens would be affected by this if the decision was
upheld. He asked if this number is speculation or if it was researched. Mr. Ogle said that staff did not
actually count them, however they know that there are multiple people in the agricultural community that
operate a commercial vehicle from their property.
Mr. Ehrlich said that under Section 23-3-30.M it allows for parking of one commercial vehicle, regardless
of use, on lands zoned agricultural. He added that when he looks at this application it states that if the
applicant wants to have more than one vehicle then they will be in violation and will need to apply for a
Use by Special Review permit.
William Hanson agreed with Mr. Ehrlich's comments.
Mr. Fitzgerald said that he thinks that our County regulations allow for this kind of vehicle out there. He
doesn't agree with the advertising on the vehicle; however if this decision affects hundreds of other
people we need to consider that as well.
Bryant Gimlin moved that Case BOA -1062 be approved based on Section 23-3-30.M of the Weld County
Code, seconded by Erich Ehrlich.
The Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Bill Hall,
absent; William Hansen, yes; Jim Cosner, yes; Erich Ehrlich, yes with comment; Benjamin Hansford, yes;
Jerry Neff, yes; Bryant Gimlin, yes; Bruce Fitzgerald, yes. Motion carried.
Mr. Ehrlich reiterated his comment as stated previously.
Meeting adjourned at 12:21 p.m.
Respectfully submitted,
Kristine Ranslem
Secretary
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