HomeMy WebLinkAbout20092898.tiffRECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
NOVEMBER 2, 2009
The Board of County Commissioners of Weld County, Colorado, met in regular session in full
conformity with the laws of the State of Colorado at the regular place of meeting in the Weld County
Centennial Center, Greeley, Colorado, November 2, 2009, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair and on roll call the following members
were present, constituting a quorum of the members thereof:
Commissioner William F. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem
Commissioner Sean P. Conway — EXCUSED UNTIL 9:03 A.M.
Commissioner Barbara Kirkmeyer
Commissioner David E. Long
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Elizabeth Strong
Controller, Barb Connolly
MINUTES: Commissioner Kirkmeyer moved to approve the minutes of the Board of County
Commissioners meeting of October 28, 2009, as printed. Commissioner Long seconded the motion,
and it carried unanimously.
READ ORDINANCE BY TAPE: Commissioner Rademacher moved to read Code Ordinance #2009-14
by tape. Commissioner Kirkmeyer seconded the motion, which carried unanimously.
CERTIFICATION OF HEARINGS: Commissioner Rademacher moved to approve the Certification of
Hearings conducted on October 28, 2009, as follows: 1) USR #1708 — Lone Star, LLC; 2) USR #1711
- Tri-State Generation and Transmission Association, Inc.; and 3) USR#1694 — Keith Thoene.
Commissioner Kirkmeyer seconded the motion, which carried unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda. (Clerk's Note:
Commissioner Conway is in now in attendance.)
PUBLIC INPUT: No public input was given.
CONSENT AGENDA: Commissioner Rademacher moved to approve the Consent Agenda as printed.
Commissioner Conway seconded the motion, and it carried unanimously.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
BIDS:
PRESENT BID #60900162, REMODEL OF HUMAN SERVICES BUILDING - DEPARTMENT OF
FINANCE/BUILDINGS AND GROUNDS: Monica Mika, Director of Administrative Services, stated the
Minutes, November 2, 2009 2009-2898
Page 1 BC0016
II 13o/07
remodel will accommodate the Weld County on -site medical clinic, provide space to store records for
the Greeley Police Department and the Weld County Sheriff's Office, and it will create additional
conference space. Said bid will be presented for approval on November 16, 2009.
NEW BUSINESS:
CONSIDER APPLICATION FOR TRANSFER OF OWNERSHIP OF TAVERN LIQUOR LICENSE AND
AUTHORIZE CHAIR TO SIGN - EL CENTENARIO NIGHT CLUB, INC., DBA EL CENTARIO NIGHT
CLUB: Bruce Barker, County Attorney, stated the application has been reviewed and it appears to be
in order. Mr. Barker stated the Board considered this matter before; however, the proper public notice
had not been provided at that time; therefore, the formal approval will be considered today.
Vicente Cuevas, applicant, indicated he is present.
Chair Garcia gave the opportunity for public testimony; however, there was none.
Commissioner Long moved to approve said application and authorize the Chair to sign. Seconded by
Commissioner Kirkmeyer, the motion carried unanimously.
CONSIDER REVISIONS TO FEE SCHEDULE FOR ENVIRONMENTAL HEALTH FEES COLLECTED
BY THE WELD COUNTY DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT: Commissioner
Rademacher stated he would like to conduct a work session regarding the proposed fee schedules
prior to considering the fees, and he moved to continue the matter to November 16, 2009. Seconded
by Commissioner Conway, the motion carried unanimously.
CONSIDER REVISIONS TO FEE SCHEDULE FOR FEES COLLECTED BY THE DEPARTMENT OF
PUBLIC HEALTH AND ENVIRONMENT: Based on previous discussion, Commissioner Kirkmeyer
moved to continue the matter to November 16, 2009. Commissioner Rademacher seconded the
motion. Commissioner Kirkmeyer stated Don Warden, Director of Finance and Administration,
discussed the fees during a budget work session last week; however, she does not know whether
Dr. Mark Wallace, M.D., Director, Department of Public Health and Environment, was aware the fees
were scheduled to be considered by the Board today. There being no further discussion, the motion
carried unanimously.
CONSIDER AGREEMENT FOR SNOW REMOVAL ON DEFENSE ACCESS ROADS AND
AUTHORIZE CHAIR TO SIGN: Mr. Barker stated this agreement is with the Colorado Department of
Transportation (CDOT), and it is the result of the agreement the Board approved for extraordinary snow
removal and road maintenance with the U.S. Airforce last week. He stated when the Federal Highway
Administration awards the funds to the U.S. Airforce, the U.S. Airforce awards the funds to CDOT, and
then CDOT awards the funds to the County. He stated the first part of the agreement is the State's
standard agreement and the second part of the agreement is the agreement the Board approved last
week. Commissioner Rademacher inquired as to whether there is any situation in which CDOT may
not award the funds to the County. Mr. Barker stated the agreement is with the U.S. Airforce and he is
not concerned any of the funds will be withheld by CDOT. Commissioner Conway moved to approve
said agreement and authorize the Chair to sign. Commissioner Rademacher seconded the motion.
Commissioner Long inquired as to whether CDOT will charge an administrative fee. Mr. Barker stated
there does not appear to be an administrative fee. Commissioner Kirkmeyer stated there is likely an
administrative fee charged to the Federal government, as opposed to the County, and there is a
termination clause in the agreement which states the funds will not be paid by the State if the funds are
not appropriated, in which case, the County will not be required to perform the snow removal services.
There being no further discussion, the motion carried unanimously.
Minutes, November 2, 2009 2009-2898
Page 2 BC0016
CONSIDER INSTALLATION OF TRAFFIC CONTROL DEVICES ON VARIOUS COUNTY ROADS:
Janet Carter, Department of Public Works, stated she grouped a number of signs to be considered
today; however, she is willing to discuss each sign individually. Ms. Carter stated County Roads 19
and 80 create a T -intersection at a low-lying portion of the road, which creates sight distance issues for
the traffic approaching the intersection in regards to being able to adequately view the upcoming
intersection and the oncoming traffic; therefore, she recommends installation of a stop sign at the
intersection for westbound traffic. She stated there is a similar situation on County Roads 21 and 80,
where the intersection bisects a hill and there is a dip located to the west of intersection; therefore, she
recommends installation of a stop sign at the intersection. She further recommended a stop sign be
installed at the intersection of County Roads 41 and 76, since one of the roads was recently paved, and
when gravel and paved roads intersect, a stop sign is typically installed. She stated there is also a
slight sight distance issue at the intersection of County Roads 41 and 76; however, it is not the main
reason a stop sign is being recommended. Ms. Carter recommended installing a stop sign at the
intersection of County Roads 49 ad 72 in order to promote consistency within the area since it is the
only uncontrolled intersection in the vicinity. She recommended a 4 -way stop be installed at the
intersection of County Roads 7 and 28 due to the location of a house which creates a slight sight
distance issue and due to the intersection's proximity to the Town of Mead's high school.
In response to Chair Garcia, Ms. Carter clarified the first column under traffic counts in Exhibit A
contains roads with odd numbers and the second column contains roads with even numbers, and the
columns are not indicative of an increase or decrease in the amounts of traffic on the roads.
Commissioner Rademacher inquired as to whether the intersection of County Roads 5 and 20 has
been evaluated. Ms. Carter stated she is researching the matter and a portion of the intersection is in
another jurisdiction; therefore, she has contacted the jurisdiction to discuss the matter; however, the
intersection does not meet any of the traffic warrants necessary to become a 4 -way stop. She stated
there are no sight distance issues at the intersection and the traffic volume does not warrant a 4 -way
stop; however, due to the intersection of County Roads 7 and 28 being designated as a 4 -way stop,
she is highly evaluating the matter. Commissioner Rademacher moved to approve said installation of
traffic control devices. Seconded by Commissioner Long, the motion carried unanimously.
DECLARE CERTAIN EQUIPMENT AS SURPLUS PROPERTY AND APPROVE SALE OF SAME AT
AUCTION WITH ROLLER AND ASSOCIATES: Barb Connolly, Controller, stated a few pieces of
equipment have been submitted as surplus since the last auction, as listed in Exhibit A; therefore, the
pieces will be auctioned on November 11, 2009. Commissioner Rademacher moved to declare said
equipment as surplus and approve the sale of the same at the auction with Roller and Associates on
November 11, 2009. Seconded by Commissioner Conway, the motion carried unanimously.
FIRST READING OF WELD COUNTY CODE ORDINANCE #2009-14, IN THE MATTER OF
REPEALING AND REENACTING, WITH AMENDMENTS, CHAPTER 6 LAW ENFORCEMENT, OF
THE WELD COUNTY CODE: Mr. Barker stated Ordinance #2009-14 includes the proposed fee
increases, which will raise the fees to the full amount allowed pursuant to State statute. He stated there
will be a $5.00 surcharge assessed to speed and motorcycle violations, which will be paid into the
Traumatic Brain Injury Trust Fund. He stated whether or not the County includes the surcharge on its
fee schedule, the State will be charging it; therefore, it is best to add the surcharge to the fee schedule,
in order to notify people the surcharge will be required. In response to Chair Garcia, Mr. Barker stated
the surcharge is included in the Ordinance in the sections which are highlighted in the color orange, as
opposed to the color yellow.
Chair Garcia gave the opportunity for public testimony; however, there was none.
Minutes, November 2, 2009 2009-2898
Page 3 BC0016
Commissioner Long moved to approve Ordinance #2009-14 on first reading. Commissioner Kirkmeyer
seconded the motion. Commissioner Rademacher stated he is against the fee increases; however, he
realizes the increased fees are an effort to maintain the County's budget. He stated he will vote in favor
of the Ordinance; however, he continues to have some concerns regarding it. Chair Garcia stated
there is a correlation between the number of staff in the traffic unit and the number of fatalities;
therefore, he will support the Ordinance. Commissioner Rademacher stated he has an issue with the
$5.00 surcharge which has been mandated by the Governor. Commissioner Kirkmeyer stated the
mandate was the result of a legislative process; therefore, it is not solely the Governor's decision.
Commissioner Conway stated he is concerned about increasing the fees to the full amount allowed;
however, he hopes the emergency response times will be shorter, particularly in Weld County's rural
areas, as the result of the additional deputies the proposed fees will allow the County to staff. There
being no further discussion, the motion carried unanimously.
PLANNING OLD BUSINESS:
CONSIDER CANCELLATION AND RELEASE OF COLLATERAL FOR SITE PLAN REVIEW,
SPR #366 - OCON GROUP, LLC (CON'T FROM 10/28/09): Kim Ogle, Department of Planning
Services, stated that Chris Gathman, Department of Planning Services, requested the release of this
collateral on October 28, 2009; however, Mr. Gathman was unaware there was a rider attached;
therefore, it is recommended the full amount of the collateral be released, in the amount of $83,700.00,
as opposed to $60,700.00. Mr. Ogle stated Site Plan Review, SPR #366, has been formally withdrawn
and he received an e-mail in which John O'Connor, applicant, indicated the request to withdraw was
submitted in the year 2006; however, the staff files do not indicate any action was taken. He stated in
November, 2007, Mr. O'Connor submitted an application for a different use on the property; Amended
Site Plan Review, AmSPR #366, which was approved by staff in January, 2008. He stated staff has
attempted to contact Mr. O'Connor to notify him if he desires to record AmSPR #366; he will need to
submit new collateral prior to submitting the plat to be recorded. In response to Commissioner
Kirkmeyer, Mr. Ogle stated SPR #366 was approved and then withdrawn. Commissioner Kirkmeyer
inquired as to how a withdrawn application can be amended. Mr. Ogle stated he is unsure as to why
staff handled the matter in this manner; however, since SPR #366 no longer exists, a new case number
will be assigned to the application. In response to Commissioner Kirkmeyer, Mr. Ogle stated approval
of SPR #366 has been revoked in a memorandum he wrote, dated November 2, 2009. Commissioner
Kirkmeyer stated the memorandum indicates the applicant has withdrawn the current land use
application; however, the application cannot be withdrawn since the application has been approved.
Mr. Ogle clarified the applicant is requesting the application be vacated. Commissioner Kirkmeyer
inquired as to whether staff has vacated SPR #366. Mr. Ogle stated he will add a memorandum to the
case file which indicates SPR #366 has been vacated, in addition to indicating SPR #366 has been
vacated on the file tab. Commissioner Kirkmeyer inquired as to whether staff is able to vacate the
application, or if the Board needs to take action. Mr. Barker stated staff is able to vacate the
application. Commissioner Kirkmeyer stated staff needs to vacate the application; not withdraw it.
Mr. Ogle stated typically the vacation is noted on the file tab; however, no correspondence is sent in
order to notify the applicant that the application has been vacated. Commissioner Kirkmeyer inquired
as to whether staff will provide the notification to Mr. O'Connor that the application has been vacated
and he must submit a new application. Mr. Ogle clarified the applicant has submitted a new
application, which was identified as AmSPR #366; however, it needs to be assigned a new case
number, in order to be consistent with staff's case numbering system. In response to Commissioner
Kirkmeyer, Mr. Ogle stated collateral is not typically required before the plat has been submitted for
recording, and at that time, the collateral is submitted with the improvements agreement for
consideration by the Board. Commissioner Rademacher moved to approve said cancellation and
release of collateral for Site Plan Review, SPR #366, with the condition that staff include a
memorandum regarding the vacation of SPR #366 in the case file. Seconded by Commissioner
Kirkmeyer, the motion carried unanimously.
Minutes, November 2, 2009 2009-2898
Page 4 BC0016
PLANNING:
RECONSIDER APPEAL REGARDING PROPOSED ROAD IMPACT FEE FROM INDEPENDENT FEE
CALCULATION STUDY - SPICER RANCHES, LTD: Mr. Barker stated this matter was previously
considered on September 14, 2009, the Board passed a Resolution which directed staff to discuss the
fee with the appellant, and the Board made the determinations that the property is to be classified as
Agricultural Commercial and that the appellant is to be charged the appropriate rate for this
classification, which is $509.00 per 1,000 square feet. He stated the Board instructed staff to work with
the appellant to determine the amount of square footage the fee will be applied to. He stated
discussions took place between staff and the appellant; however, an agreement could not be reached
regarding the amount of square footage the fee should be applied to at the facility, and there is a copy
of a letter, marked Exhibit B, from Mr. Ogle to Tim Naylor, representative for the appellant, which
indicates staff has determined $16,848.00 to be the appropriate fee.
Ms. Carter stated based on the Board's direction, she and staff from the Department of Planning
Services met with the appellant and her representative; however, they could not reach an agreement
regarding the fee. She stated staff has eliminated certain areas of the facility from the amount of
square footage which is to be assessed for the Road Impact Fee, and those areas include
24 permanent stalls, 12 portable stalls, two alleys, the return alley, the livestock pens, the tack room,
the feed room, the wash room, and the sand box. She further stated the areas staff is assessing
include the arena floor, the office, the bathrooms, and the concession area, which results in a Road
Impact Fee in the amount of $16,848.00.
Commissioner Rademacher inquired as to what the amount is which the appellants calculated for the
last hearing. Ms. Carter stated the fee the appellant proposed at the last hearing is $16,470.59, which
was the result of the appellant's Independent Fee Calculation Study and is similar to the amount staff is
proposing today. Commissioner Kirkmeyer stated in the letter from the appellant, dated August 10,
2009, it indicates $1,628.80 is the amount which the appellant deems to be the appropriate fee, as a
result of the the appellant's interpretation of the Weld County Code.
Becky Meyring, appellant, thanked the Board for the opportunity to express her concerns regarding the
proposed Road Impact Fee. Ms. Meyring stated she was working with the previous Director of the
Department of Planning Services, in order to determine an appropriate Road Impact Fee for the facility;
however, the negotiations ceased when the Director departed and she then received a letter from
Mr. Ogle which indicated she must immediately submit the Road Impact Fee, or Use by Special Review
Permit #1633 would be revoked. She stated if the former Director had completed his review, she does
not believe the situation would have required the Board's consideration. Ms. Meyring stated every step
of the permitting process has been costly, she has spent approximately $50,000.00 in order to obtain
the USR permit, and a Road Impact Fee in the amount of $33,517.65, as originally proposed by staff,
seems to be outrageous. She stated after the last hearing she was encouraged by the motion the
Board made; however, it seemed staff did not follow the direction the Board provided, for example,
Ms. Carter proposed using the office fee schedule for the office portion of the facility and the
Agricultural Commercial fee for the remainder of the facility; however, the Board determined the
Agricultural Commercial rate would be applied to the facility and it is only necessary to agree upon the
square footage. Ms. Meyring stated the square footage was not agreed upon at the meeting with
County staff, and staff indicated it would review the matter and follow up with her. She stated a letter
was then sent to her representative stating the Road Impact Fee, in the amount of $16,848.00, needed
to be paid within 10 business days or the USR Permit would be revoked. She further stated she
anticipated continuing the appeal with the Board in order to reach an agreement regarding the square
footage if an agreement was not reached with staff; however, she did not anticipate another threatening
letter from staff. Ms. Meyring stated she has read the minutes from the last hearing and she does not
understand why there is any confusion regarding the Board's instructions. She stated staff has been
Minutes, November 2, 2009 2009-2898
Page 5 BC0016
unwilling to reach an agreement regarding the square footage and the amount of the fee being
requested seems unreasonable since no other roping barns in the area have been charged a Road
Impact Fee in any amount.
Tom Haren, representative for the appellant, stated at the conclusion of the previous hearing, there was
one item remaining to be resolved; to determine the amount of square footage for which the Agricultural
Commercial rate would be applied, and all of the parties agreed the Agricultural Commercial rate was
the most appropriate. Mr. Haren indicated, according to the transcript, Commissioner Kirkmeyer stated,
"Ok, so it sounds to me like we all agree that it's Agriculture Commercial, and that's that $509.00; it's
just the amount of square footage appears to be the difference". He stated, according to the transcript,
Commissioner Kirkmeyer indicated a traffic analysis is not necessary and it simply needs to be
determined how much of the square footage is attributed to the arena. He further stated the transcript
indicates that Commissioner Long stated, "It's not just the square footage, but the number of people
that are actually going to be able to occupy that facility for that given use. I mean, because it might be
a big building, but that doesn't mean it's going to be just absolutely full of people that came in cars. I
mean, this is a different of use, and I think we need to be sensitive and apply common sense to the
strategy that we're coming up with; not just with the square footage, but also the number of people".
Mr. Haren reiterated after the hearing it seemed to be clear the amount of square footage needed to be
determined; not the classification. He stated he received a letter, dated October 1, 2009, regarding the
conclusion of the Commissioner Coordinators to assess the arena floor, which he supports; however, it
needs to be determined how much of the square footage will be assessed. He stated the Road Impact
Fee is generally appropriate; however, it is predicated by traffic according to the type of building.
Mr. Haren stated the Weld County Code specifies the number of people allowed in each type of
building and then the square footage is multiplied by the maximum occupancy to determine the volume
of use, which is correlated to the volume of traffic. He stated the calculation is usually appropriate;
however, in this case, the square footage does not correlate to the volume of use. He stated the
maximum occupancy is dictated by the Weld County Building Code and the Use by Special Review
Permit, and the maximum occupancy for the indoor arena is 150 people. Mr. Haren stated the
appropriate amount of square footage to be assessed can be determined by using the formula, since
the volume of use is known. He stated the amount of square footage he has calculated is not an
arbitrary amount, it is factual and fair, and it will provide the County precedence for how to measure
uncategorized uses in the future. He stated 150 people multiplied by seven (7) square feet per person
equals 1,050, plus the 1,600 square feet in the offices and other areas determined to be commercial by
staff, the total amount of square feet to be assessed equals 2,650. In response to Chair Garcia,
Mr. Haren stated the proposed Road Impact Fee is in the amount of $1,348.85. Mr. Haren stated the
figures he presented in the previous hearing were not the amounts he proposed to be appropriate for
the Road Impact Fee; the amounts were the result of the Independent Fee Calculation, which is a
mandatory process before the property owner may appeal the fee to the Board. In response to Chair
Garcia, Mr. Haren stated staff did not deem the Independent Fee Calculation Study to be accurate.
Mr. Barker confirmed Mr. Haren is correct that in order to be able to appeal to the Board, the
Independent Fee Calculation Study must be conducted; however, the Weld County Code does not
allow the appellant to propose a different fee than the amount determined by the Independent Fee
Calculation Study. He stated the amount of the fee determined by the Independent Fee Calculation
Study is in the amount of $16,470.59, and the Board may either accept or reject the Independent Fee
Calculation; however, another method of calculation is not permitted according the Code. In response
to Chair Garcia, Mr. Barker stated Ms. Carter calculated the rate based on the areas she determined to
be Agricultural Commercial, as directed by the Board at the last hearing. Mr. Barker stated perhaps
staff should have conducted a similar analysis before the matter was brought before the Board for
consideration. Chair Garcia thanked Mr. Barker for providing the explanation of the appeal process. In
response to Commissioner Kirkmeyer, Mr. Barker stated the appeal can be rejected or accepted, and if
rejected, the revised Road Impact Fee amount of $16,848.00, as proposed by staff, will be assessed,
Minutes, November 2, 2009 2009-2898
Page 6 BC0016
which was reduced from $33,517.65, and if granted, the Road Impact Fee determined by the
Independent Fee Calculation, in the amount of $16,470.59, will be assessed. Commissioner Kirkmeyer
stated in addition to the amount of $16,470.59 being mentioned as the result of the Independent Fee
Calculation Study in the letter from the appellant, dated August 10, 2009, a fee in the amount of
$1,628.80 was proposed as the appropriate fee, and staff determined the Independent Fee Calculation
Study was invalid. She stated the fee proposed by the appellant is based on the Agricultural
Commercial rate being assessed to the office, bathrooms, concession area, and the sandbox; however,
it was not assessed to the arena floor because it was determined if the arena was outdoors, it would
not be assessed. She stated the Board should be able to grant the appeal for the Road Impact Fee, in
the amount of $1,628.80. Mr. Barker reiterated staff may accept or reject the proposed fee amount, as
the result of the Independent Fee Calculation study, in the amount of $16,470.59; however, the Board
is not allowed to negotiate a new fee. Commissioner Kirkmeyer stated the appellant proposed the
amount of $1,628.80 at the first hearing; therefore, it is not a new amount being proposed. Mr. Barker
clarified the appeal process is based on the Independent Fee Calculation Study; therefore the amount
of the appellant's proposed fee is $16,470.59. Commissioner Kirkmeyer stated at the last hearing, the
Board determined the Agricultural Commercial rate would be applied; however, the amount of
applicable square footage needed to be determined, and the Board instructed the appellant that if an
agreement could not be reached regarding the square footage, the appellant could resume the appeal
process with the Board. She inquired as to whether the Board should consider the fee in the amount of
$1,628.80, or the new fee proposed by the appellant according to the instructions given by the Board, in
the amount of $1,348.85. Mr. Barker reiterated if the Board chooses to grant the appeal, it should be
for $16,470.59, since that is the process available to the appellant. He clarified the amount determined
by the Independent Fee Calculation Study for the Road Impact Fee, is the only amount the appellant is
permitted to propose as an alternative fee; however, the Independent Fee Calculation Study is not to be
used as a method to be able to participate in an appeal process and to then be able to argue regarding
the square footage. Commissioner Kirkmeyer stated $16,470.59 was the fee proposed by staff and the
appellant proposed a fee in the amount of $1,628.80. Ms. Carter clarified the fee in the amount of
$16,470.59 was proposed by the applicant; staff did not determine this amount; however, staff
calculated a similar fee, in the amount of $16,848.00, based on the Board's direction at the last hearing.
Mr. Haren stated throughout the appeal process, he has contended the fee calculation formula is not
appropriate for buildings in which the size does not correlate with the number of people permitted in the
building. He stated he had to use the numbers the formula requires; however, he did not agree with the
amount of the fee determined by using the formula, and the amount of the fee he proposed as being
appropriate is $1,628.80. He clarified the formula multiplies the square footage times the maximum
occupancy for the type of building, and most of the time it equals the appropriate intensity of use. He
reiterated the USR permit limits the number of people allowed to be in the building to 150 people;
therefore, the traffic volume is known. Mr. Haren stated the Board directed staff to determine the
amount of square footage attributed to Agricultural Commercial. He stated he was stunned to read that
the Board cannot negotiate a Road Impact Fee in the Weld County Code, since the Board has authority
over all of the County departments.
Ms. Carter stated the process is not based on the number of people allowed in the building; it is based
on the type of land use, and that is a national standard which is applied in the Institute of Transportation
Engineers (ITE) Trip Distribution Manual. She stated those numbers are determined by evaluating the
average traffic volume for each type of land use. She stated this particular land use was not identified
in the ITE Trip Distribution Manual; therefore, staff utilized the information provided by the appellant and
a comparable land use to determine the Road Impact Fee. Ms. Carter stated there are more
contributing factors considered than the number of people attending the events at the site. In response
to Commissioner Conway, Ms. Carter stated a single family dwelling has an average daily traffic
volume rate of 9.57. She stated an occupancy allowance of 150 people does not necessarily indicate
150 vehicle trips have been generated as the result of the facility, for example, the single family
Minutes, November 2, 2009 2009-2898
Page 7 BC0016
dwelling rate is not determined by the number of people living in a single family dwelling unit, it is
determined by the type of use.
Mr. Haren stated it is a flawed formula; therefore, the appellant is being charged for more trips than are
generated by the facility. He stated the formula is appropriate is most circumstances; however, in the
situations where it is not appropriate; leadership and common sense are needed.
Commissioner Long concurred with Mr. Barker regarding his interpretation of the appeal process
described in the Code; however, he indicated he does not feel the Code addresses this situation. He
stated he has a problem with the arena being assessed differently simply because there is a roof over it
and he prefers to fix the flaw in the Code now, rather than follow the existing direction of the Code for
this matter, and he suggested the Board refer the matter back to staff while it reviews the process and
addresses the issue with the Code.
Commissioner Kirkmeyer indicated Section 20-1-340.B of the Weld County Code states, "The Board of
County Commissioners, after hearing, shall have the power to affirm or reverse the decision of the
Director. In making its decision, the Board of County Commissioners shall make written findings of fact
and conclusions of law, and apply the standards in Section 20-1-330 above. If the Board of County
Commissioners reverses the decision of the Director, it shall instruct the Director to recalculate the fee
in accordance with its findings." She stated the arena floor should not be assessed since outside
arenas are not assessed. She further stated kennels are assessed a lower fee than Agricultural
Commercial facilities, which does not make sense to her, since a kennel generates more traffic than
many Agricultural Commercial facilities. Commissioner Kirkmeyer recommended the Board reverse the
decision of the Director and advise the Director to recalculate the fee in accordance with the Board's
findings, which include the finding that the Agricultural Commercial rate is the appropriate one for the
facility and the finding that the arena floor will not be assessed when determining the Road Impact Fee;
therefore, staff will assess the office, bathrooms, concession area, and the sandbox. She stated the
Board needs to examine the fees for this type of facility and Spicer Ranch, Ltd, should not be penalized
for the flaw in the Code. Commissioner Rademacher indicated he is in favor of referring the matter
back to staff, in order to allow the Board to determine the necessary changes to the Code.
Commissioner Kirkmeyer stated the Code does not allow for that; the Board is to determine its findings
and instruct the Director to recalculate the fee in accordance with those findings, and she has indicated
her recommendations of what the Board's findings should be. She stated after the findings have been
determined, and the fee has been recalculated according to the findings, the matter is resolved, as
specified in Section 20-1-340.B, which states, "The decision of the Board of County Commissioners
shall be final and not subject to further administrative appeal." Commissioner Conway inquired as to
the total amount of square footage to be assessed for the facility. Commissioner Kirkmeyer stated
Exhibit A lists the square footage for each area; the office and bathrooms are 800 square feet, the
concession area is 800 square feet, and the sand box is 1,600 square feet, which equals 3,200 square
feet and will yield a fee in the amount of $1,628.80. She stated it is not fair to assess the arena floor
and the Board is able to adjust the fee at its discretion. Commissioner Rademacher stated the Road
Impact Fee that Commissioner Kirkmeyer is proposing is less than the fee assessed for a single family
dwelling, which does not seem fair. Commissioner Kirkmeyer stated it is up to Board to determine a
consistent and fair rate for equine arenas; however, based on the existing Code, her proposal is the
fairest way she can think of to assess the property. In response to Commissioner Conway, Mr. Barker
stated Commissioner Kirkmeyer is proposing rejecting the decision of the Director, not accepting the
Independent Fee Calculation Study, and determining an appropriate rate. Mr. Barker stated if the
Board chooses to follow Commissioner Kirkmeyer's recommendations; the Code will need to be
changed in order to allow appeals to be considered by the Board without an Independent Fee
Calculation Study. He stated the Code requires the appellant to go through an Independent Fee
Calculation Study to appeal the fee, there are benefits and detriments to the requirement, and if the
Board is going to change the process, the Code needs to be updated to reflect the changes. Chair
Minutes, November 2, 2009 2009-2898
Page 8 BC0016
Garcia stated there is a problem with the calculation when applied to equine arenas, and he is leaning
towards granting the appeal and accepting the fee calculated as a result of the Independent Fee
Calculation Study, in the amount of $16,470.59. He stated he is not a valuation expert or an appraiser;
therefore, he tends to error on the side of the private professional planners and appraisers.
Commissioner Long stated he would prefer to defer to the experts; however, the professionals are not
considering the use the equine arena; therefore, the experts do not have a clear understanding of the
facility and its impacts. He concurred with Commissioner Kirkmeyer's findings and indicated he is in
favor of removing the arena floor from the Road Impact Fee calculation, as Commissioner Kirkmeyer
suggested. He stated the Board can make a fair assessment while maintaining the integrity of the
Code by stating the Board's finding as suggested by Commissioner Kirkmeyer. Chair Garcia stated
that if the Board moves ahead as proposed by Commissioner Kirkmeyer, it will create a loophole and
more of these types of cases will need to be determined by the Board. He stated he does not purport
to be an expert in these matters and he prefers to be in the position in which he determines which
expert opinion to choose, rather than attempting to replace the experts' expertise with his own.
Commissioner Kirkmeyer stated it does not seem consistent for an equine arena to be assessed the
Road Impact Fee simply because it has a roof over it, when other equine arenas are not assessed a
Road Impact Fee. Commissioner Conway concurred with Commissioner Kirkmeyer and stated the
inequity was discussed at the last hearing; however, he is concerned regarding setting an unintended
precedent. Commissioner Long stated the Board has the discretion to make determinations regarding
the Road Impact Fees and its findings will not create a loophole; Board findings are permitted
throughout the Code, in order to provide the Board with the authority to make determinations which
may differ from the Code on various matters. In response to Commissioner Conway, Commissioner
Long stated the Board should still examine this part of the Code to consider equine arenas and other
uses which were not anticipated. Commissioner Long stated it was recognized when the Code was
written that there would be an evolutionary cycle and that updates would be required to address
matters which were not anticipated. Commissioner Kirkmeyer stated she does not think the appellant
should have had to conduct an Independent Fee Calculation Study because the arena should not have
been included in the initial assessment since all equine arenas are not assessed the Road Impact Fee.
She stated the appellant should have been able to make the argument prior to conducting the
Independent Fee Calculation Study that since the fee in not applied to outdoor equine arenas; it should
not apply to indoor equine arenas. Commissioner Rademacher stated the Road Impact Fee was
initially $33,517.65, and staff reduced the fee by nearly half. He stated $1,628.80 is not a sufficient
Road Impact Fee for the facility, and the Road Impact Fee is higher for a single family dwelling. He
further stated there is a flaw in the Code which requires examination; however, he is not willing to set a
precedent by reducing the fee to $1,628.80. Commissioner Kirkmeyer moved to reverse the decision of
the Planning Director, and that the Board's findings be that the Agricultural Commercial rate will be
applied to the facility, which is $509.00 per 1,000 square feet, and that the square footage which will be
assessed will include the office, the bathrooms, the concession area, and the sand box, which will
result in a fee in the amount of $1,628.80. Commissioner Long seconded the motion. Upon the
request for a roll call vote, the motion carried three to two, with Chair Garcia and Commissioner
Rademacher in opposition.
HEALTH:
CONSIDER AUTHORIZATION FOR WELD COUNTY ATTORNEY TO PROCEED WITH LEGAL
ACTION FOR VIOLATION OF THE COLORADO RETAIL FOOD ESTABLISHMENT RULES AND
REGULATIONS -THE COUNTRY INN RESTAURANT: Dan Joseph, Department of Public Health and
Environment, stated the Country Inn Restaurant has failed to maintain compliance with the rules and
regulations for retail food establishments and it has been provided numerous opportunities to come into
compliance and failed to do so; therefore, suspension or revocation of the establishment's Retail Food
License is recommended. Mr. Joseph stated if the Board does not choose to suspend or revoke the
license, he recommends the Board direct the establishment to pay the assessed civil penalty as a
condition of reopening or continuing to operate. He stated the owner, George Gatsiopoulos, has
Minutes, November 2, 2009 2009-2898
Page 9 BC0016
indicated he wants to enter into a stipulation agreement. In response to Chair Garcia, Mr. Joseph
stated the Department is willing to enter into a stipulation agreement and it has entered into a similar
agreement with another facility in the past. Further responding to Chair Garcia, Mr. Joseph confirmed
an informal hearing was conducted at the Department of Public Health and Environment; however, no
representatives for the establishment attended the hearing. Mr. Joseph stated the Department has
been granted the responsibility to ensure a safe food supply in retail food establishments according to
the Colorado Revised Statutes (C.R.S.), and some of the items the Department monitors include cross
contamination, appropriate temperatures, and hand washing. In response to Commissioner Conway,
Mr. Joseph stated the violations were not discovered as the result of public complaints; the violations
were discovered as the result of the standard inspection process. Mr. Joseph stated since
January, 2008, the Department has issued five (5) separate first notifications of non-compliance,
three (3) separate second notifications of non-compliance, one (1) compliance warning, a notification of
civil penalty, a second notification of civil penalty, and a third notification of civil penalty. He stated a
compliance warning is issued when a violation is resolved, and a maximum of three (3) civil penalties
may be assessed against a licensee or owner in one calendar year according to C.R.S., at which point,
proceedings must be initiated to suspend or revoke the establishment's license. He stated
C.R.S. 25-4-1609 provides the Board the power to suspend or revoke a license. Mr. Joseph stated
since January, 2008, the Department has conducted a total of 12 inspections, including four (4) regular
inspections and eight (8) follow-up inspections, and 39 critical violations have been observed, 28 of
which are risk factors for food -borne illness. He stated the average number of violations at regular
inspections for the Country Inn Restaurant is 4.75, while the average number of violations for a
restaurant is 1.5; and the average number of violations observed at follow-up inspections at the County
Inn Restaurant is 2.63, while the average number of violations for restaurants at follow-up inspections is
.85; therefore, the Country Inn Restaurant has had approximately three to four times as many violations
as the average restaurant. He stated the Country Inn Restaurant also had approximately four times as
many food -borne illness risk violations as the average restaurant. Mr. Joseph stated the main recurring
violation is improper food holding temperatures; the cold holding temperature needs to be 41 degrees
or lower. He stated other violations included blood dripping onto ready to eat foods, improper hand
washing after cracking raw eggs, changing gloves without washing hands, and moldy food. He
reiterated no representatives from the establishment attended the informal hearing conducted on
September 14, 2009, and a follow-up letter was issued which stated if another cold holding violation
occurred, the matter would be brought to the Board; however, there was no penalty for not attending
the hearing. He stated five factors which typically cause food -borne illness are improper food holding
time or temperatures, cross -contamination, improper hand washing, poor personal hygiene, and bare
hand contact with ready to eat foods, and all five of these items were observed at the establishment;
therefore, a threat is posed to the public.
Brandon Houtchens, legal representative for Mr. Gatsiopoulos, stated Mr. Gatsiopoulos has owned and
operated the Country Inn Restaurant for 28 years and he has also owned and operated the Paragon
restaurant for 38 years, he has never had his license suspended or revoked, and he has a good track
record of being in compliance with the regulations. Mr. Houtchens stated Mr. Gatsiopoulos was not
able to attend the informal hearing conducted on September 14, 2009, due to accompanying his son to
a chemotherapy appointment. He stated he has written a rough draft of a Memorandum of Agreement
to establish terms and conditions for Mr. Gatsiopoulos to comply with, in order to avoid suspension of
the license. He further stated the restaurant will participate in training within the next 10 days
concerning cross contamination, improper hand washing, bare hand handling of ready to eat foods,
proper cooling, proper use of thermometers, and proper cold holding of food. Mr. Houtchens stated
there is a large horizontal cooler at the facility, and Mr. Gatsiopoulos discovered employees have been
removing items and placing the items on ice to avoid repeatedly lifting the heavy door. He stated
Mr. Gatsiopoulos has a clever solution for the problem; he will divide the door into two segments in
order resolve the matter of the door being too heavy for the employees to lift. He further stated
Mr. Gatsiopoulos has begun to maintain a temperature log, he has agreed to purchase a new
thermometer and sealed food storage containers, and he has agreed to participate in a formal training
Minutes, November 2, 2009 2009-2898
Page 10 BC0016
within 45 days, in addition to the initial training to occur within 10 days. Mr. Houtchens stated
Mr. Gatsiopoulos will pay the $1,000.00 civil penalty today, and he will address the management
structure concern by designating a person to complete the temperature log when he is not present. In
response to Chair Garcia, Mr. Gatsiopoulos stated the issues regarding the sanitizer, unlabeled spray
bottle, lack of paper towels, and lack of hand soap have been resolved. In response to Chair Garcia,
Mr. Joseph clarified the two previous civil penalties have been paid.
Sara Evans, Department of Public Health and Environment, recommended the Board continue the
matter in order to allow adequate time for staff to work out the details of the stipulation agreement, in
lieu of suspending the license today. Ms. Evans stated she wants to ensure there is active managerial
control in order to ensure the thermometers are being used and the stipulations are being honored. In
response to Chair Garcia, Ms. Evans stated she will defer to Mr. Barker whether the matter is continued
with a suspension in abeyance. In response to Mr. Barker, Ms. Evans stated she recommends a
continuance until November 4, 2009. Responding to Commissioner Rademacher, Ms. Evans clarified
she is requesting a continuance; however, she is not requesting a suspension at this time.
Commissioner Conway moved to continue the matter to November 4, 2009, at 9:00 a.m., in order to
allow staff to finalize a stipulation agreement. Commissioner Long seconded the motion, which carried
unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
Consent Agenda. Ordinance #2009-14 was approved on first reading.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted
by the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 10:47 a.m.
BOARD OF COUNTY COMMISSIONERS
WELD COY, COLORADO
ATTEST:
44/2
Weld County Clerk to the Board
BY:
S�`xh
Deputy • lerk to the Board
ugl • Rademac
Sean dnway
Bar4ra Kirkmeyer
David E. Long
Minutes, November 2, 2009 2009-2898
Page 11 BC0016
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