HomeMy WebLinkAbout20091101.tiffMINUTES OF THE WELD COUNTY BOARD OF ADJUSTMENT MEETING
Tuesday, May 5, 2009
A regular meeting of the Weld County Board of Adjustment was held on Tuesday, May 5, 2009, in the Hearing
Room of the Department of Planning Services, 918 10th Street, Greeley, Colorado. The meeting was called to
order by Chair Bryant Gimlin at 11:00 a.m.
ROLL CALL ABSENT
William Hansen
Erich Ehrlich
Anita Owens
Bill Hall
Bruce Fitzgerald
Benjamin Hansford
Jerry Neff
Bryant Gimlin
Also Present: Chris Gathman, Department of Planning; Lauren Light, Environmental Health; Don Carroll,
Public Works; Bruce Barker, County Attorney; and Kristine Ranslem, Secretary.
Jerry Neff moved to approve the minutes of the last regular meeting of the Weld County Board of Adjustment
held on April 21, 2009, seconded by Anita Owens. Motion carried.
CASE NUMBER:
APPLICANT:
PLANNER:
REQUEST:
LEGAL DESCRIPTION:
LOCATION:
BOA -1056
Thomas & Diana Troudt
Chris Gathman
Request for a variance for a waiver from the public sewer requirements for the
R-1 (Low Density Residential) Zone District
Lot A of RE -3299; Part of NE4SE4 Section 29, T6N, R65W of the 6th P.M., Weld
County, Colorado.
West of and adjacent to CR 41 and' 'A mile south of CR 66.
Chris Gathman, Planning Services, stated that the applicants are applying for a variance to request a
waiver from public sewer. They are applying for a two lot recorded exemption which would split off the
house and create another buildable parcel. The zoning is R-1 (single family residential) which per the
county code requires public water and sewer.
This lot is a lot from a previous Recorded Exemption (Lot A of RE -3299) and there was a variance for a
waiver from sewer which was approved for the overall lot in 2002. The applicants are now applying for the
same variance request because they are splitting that lot again to create another separate buildable
parcel. The applicant is proposing to have public water through North Weld County Water District.
The Department of Planning Services has determined that special conditions and circumstances exist
which are peculiar to this lot. A variance from public sewer is in conjunction with the recorded exemption
and other properties in the area that are zoned R-1 have been developed with septic systems in the area.
"The literal interpretation of the provisions of this chapter would deprive the appellant of rights commonly
enjoyed by other properties in the same zone district under the terms of this chapter." Literal interpretation
of this requirement would make the possibility of developing this as a residential lot virtually impossible
due to the lack of public sewer in the area. Mr. Gathman indicated that he did locate the approximate
location of sewer facilities through the City of Greeley website and according to that information the
property is located approximately 1.25 miles from existing sewer lines. The nearest sewer line is located
in the vicinity of 7th Avenue and County Road 64 (O Street).
"The reasons set forth in the application and testimony justify the granting of the variance and the variance
is the minimum variance that will make possible the reasonable use of the lot, building or structure." This
variance is for the allowance of a septic system to allow the applicant to apply for a recorded exemption.
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This would allow the applicant to create an additional buildable lot. This use is reasonable and
comparable to most recorded exemption lots and also to the surrounding properties. Additionally, the
adjacent properties to the north and south of the site are residential in nature.
The Department of Public Health in their referral dated March 2, 2009 indicated that this proposal meets
their policy of a minimum lot size of 1 acre for lots served by public water and individual sewage disposal
systems.
The Department of Planning Services staff concurs that the small impact created by the existing proposed
septic system will not be damaging to the public health, safety, and welfare and recommends approval of
this application.
Mr. Gathman stated that there is one condition attached, if approved, which is a standard condition that
states "Prior to the release of building permits, the Lot owner shall verify with the nearest Town/City or
Sanitation District to determine the location of the nearest sanitary sewer line. In accordance with the
Weld County Code, if a sewer line exists within four hundred (400) feet of the property line and the sewer
provider is willing to serve the proposed structure, a septic permit cannot be granted by the Weld County
Department of Public Health and Environment. Evidence of such shall be submitted in writing to the Weld
County Department of Planning Services."
Bryant Gimlin asked how many acres each lot would be. Mr. Gathman said that the lot which would be on
septic and well would be 2 % acres and the other lot is 2 acres.
Mr. Gimlin asked if the applicant were to build on that lot and hooked up their septic system and then
public sewer came to the location would they be required to hook into the public sewer system. Mr.
Gathman commented that it can stay there as long as the system does not fail and is functioning properly.
Bob Kreps commented that he represents the applicants. He stated that everything is pretty self-
explanatory. He reiterated that the sewer line is not close to this site.
The Chair asked if there was anyone in the audience who wished to speak for or against this application. No
one wished to speak.
Benjamin Hansford moved that Case BOA -1056 be approved along with the Conditions of Approval as
proposed, seconded by Jerry Neff.
The Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Bill Hall,
absent; William Hansen, absent; Erich Ehrlich, absent; Benjamin Hansford, yes; Jerry Neff, yes; Anita Owens,
yes; Bryant Gimlin, yes; Bruce Fitzgerald, absent. Motion carried.
The Chair read the next case into record.
CASE NUMBER:
PLANNER:
APPLICANT:
LEGAL DESCRIPTION:
LOCATION:
REQUEST:
BOA -1057
Chris Gathman
1-25 Properties LLC (Morganti)
Part SW4 of Section 23, Ti N, R68W of the 6th P.M., Weld County, Colorado.
East of and adjacent to 1-25 Frontage Road and north of and adjacent to CR 6.
Application for variance from the required setback (25 feet) in the C-3 (Business
Commercial) Zone District. Modular home is setback approximately 19 feet from
the edge of CR 6 right-of-way.
Chris Gathman, Planning Services, stated that the request is for a variance from the required 25 foot
setback in the C-3 (Business Commercial) Zone District. The applicant is requesting that a modular show
home encroach 6 feet into the setback.
The parcel is 4 acres in size and is located east of and adjacent to the East Interstate 25 Frontage Road
and north of and adjacent to County Road 6. The City of Broomfield lies to the south and the Althen-Boyer
Subdivision borders the property to the north and east. The City of Broomfield has annexed County Road
6 to the south. The setback variance is requested from the edge of right-of-way for County Road 6. It
should be noted that the City of Broomfield has not indicated existing or future right-of-way requirements
for County Road 6. The Department of Planning Services has attempted to contact the City of Broomfield
regarding existing or future right-of-way requirements for County Road 6 and have not received a
response back.
The modular home business on the property (Morganti Modular Homes Incorporated) was moved on the
property without the proper zoning or building permits in 2004. There is an active zoning violation (VI -
0400135) on the property for the addition of a modular home sales yard without proper permits. This
violation was presented before the Board of County Commissioners who referred this case to the County
Attorney's Office but delayed action for 30 days on January 13, 2006. The property is currently under a
Stipulated Agreement in District Court. The applicant has indicated that the outcome of the hearing could
determine how he chooses to proceed with regard to correcting the violation. According to County Building
Records, the modular in question is a 2007 model modular home.
Twelve referrals were sent out; nine referrals were received. No referral response was received from the
City of Dacono, Town of Erie and Adams County.
With regard to the variance criteria the first criteria listed is:
"Special conditions and circumstances exist which are peculiar to the lot, structure or building involved and
which are not applicable to other lots, structures or buildings in the same zoning district."
The Department of Planning Services believes that the applicant does not meet this criteria. The
Department of Planning Services believes there is enough room to relocate the modular home further
north to meet the required setback. Therefore due to the size of the site and the ability to move the
modular home the Department of Planning Services does not believe there are any special circumstances
peculiar to the lot, structure or building involved and which are not applicable to other lots, structures or
buildings in the same zoning district. Additionally, the Weld County Building Department has indicated no
building code issues with the setback between the office modular and the display modular should the
display modular need to be relocated.
The building adjacent to the north of the subject home is the office facility for Morganti Modular Homes.
The approximate setback between the modular homes not including roof overhangs is approximately 11
feet. Per the Building Department they could move this home closer to the office without having to do
additional upgrades to the buildings.
The next criteria is:
"The Literal interpretation of the provisions of this Chapter would deprive the appellant of rights commonly
enjoyed by other properties in the same zoning district under the terms of this Chapter."
The Department of Planning Services believes the applicant does not meet this criteria. The relocation of
the modular home would require the removal or relocation of an existing sidewalk and potentially the
relocation of the office modular to the north, the Department of Planning Services believes there is enough
room on the property to relocate the modular to meet the required setbacks and offsets. Additionally, there
is sufficient room to relocate any other modulars without impacting the detention easement required per
Site Plan Review 381 to the north nor will it impact parking and circulation to the west.
Another critiera is:
"The special conditions and circumstances do not result solely from the actions of the appellant."
The modular was placed on the property without the proper building/zoning permits. This could have been
avoided had the applicant obtained the proper permits.
The final criteria is:
"The reasons set forth in the application and testimony justify the granting of the variance, and the
variance is the minimum variance that will make possible the reasonable use of the lot building or
structure."
The modular home on the property is a moveable structure and therefore could be relocated outside of the
25 foot setback and still be a useable structure.
Should the Board of Adjustment approve this request, the Department of Planning Services recommends that
the following conditions be attached:
1. This variance applies only to the existing modular home that is outlined in this variance
request. Should this modular home be sold and/or removed, future modular homes shall
conform to the requirements of Weld County Code including setback requirements as
amended. This is particularly important in this location because the ROW is under the
jurisdiction of the City and County of Broomfield.
2. Future Buildings/modulars, alterations or changes in occupancy shall conform to the
requirements (including setback and offset requirements) of the codes adopted by Weld
County at the time of permit application. Offset and setback distances are measured from the
farthest projection from the structure.
Mr. Gimlin asked Bruce Barker, County Attorney, if it is appropriate for the Board to hear this case given that
there is an active zoning violation and court proceedings with this parcel. Mr. Barker said it is appropriate
because the court proceedings are pending this decision.
Mr. Neff asked if the unit in question is currently a display home and if it is connected to any sewer or
permanent foundation. Mr. Gathman said it is a display home and is not connected to any utilities.
Mr. Hansford asked that since this is a show home it could potentially sit there for up to a couple of years. Mr.
Gathman indicated that it is a 2007 model and given the market it could be there for a substantial amount of
time.
Todd Hodges, 1269 N. Cleveland Ave, Loveland, CO. Mr. Hodges commented that he represents the
applicant in the land use process. The applicant is requesting a variance from the required 25 foot setback
from County Road 6 right-of-way in the C-3 Zone District. They believe this request meets the intent of the
requirements of Section 23-6-40.C.1-5 as listed in staffs report.
Mr. Hodges commented that with regard to the first criteria it is their belief that there are three special
conditions and circumstances that impact this lot and make this a unique lot in comparison to the other lots in
this area and other C-3 Zone Districts.
The first unique situation is that this lot appears to be part of the Althen-Boyer Subdivision as it is surrounded
by it with the other commercial uses. This lot is a stand-alone C-3 lot and is not part of that subdivision.
The second unique situation is that this lot has an existing Use by Special Review Permit for an industrial use
for a woodworking shop. This is not normal on other lots within a subdivision due to any existing covenances
or other items unless they were used.
The third unique situation is that originally the access to this lot was toward the center of the site and through
working with CDOT the access was moved up to the north portion and that impacted the usability of the site
with all of the other parameters in place, such as the drainage easement.
In order to keep both the existing Site Plan Review for this portion of the modular business and to keep the
existing Use by Special Review they would have to either do a Recorded Exemption to keep the two
businesses separate or do a new application to allow for this other use which would be very time consuming
and costly. He reiterated that it is critical today in what happens in the next stage based on this variance
request. These special conditions and circumstances do meet the criteria for approval based on that section
of the code.
The second criteria is "Literal interpretation of the provisions of this chapter would deprive the appellant of
rights commonly enjoyed by other properties in the same zone district under the terms of this chapter." If this
variance request is not granted it would create a financial hardship requiring removal of existing improvements
that exist on the site and the cost of the move. Mr. Hodges showed on a visual slide how the area by the unit
in question has been paved and includes handicap parking and has existing sidewalk. If this unit was forced
to be moved the modular would be forced up into the area where there is existing paving as well as the
sidewalk which runs between the structures.
While the Building Department would not require an offset between those structures, if they were forced to
meet the existing 25 foot setback they would be required to move the sidewalk thus not allowing for handicap
accessibility from this portion around to the back of the other model. He added that this may have an impact
with the Fire District as they are not sure if that would meet fire code. It may meet building code but may not
meet fire code because the eaves would be about 2 feet apart.
If the variance is not allowed and the model home is forced to be moved and they are using a different part of
the property it would kick them into another land use application that impacts the entire site and would have to
start all over with a new site plan when this existing one has already been reviewed by planning staff as it
exists today.
The third criteria is "Special conditions and circumstances do not result solely from the actions of the
appellant." Mr. Hodges expressed that it is very critical that the Board understand that when Mr. Morganti
moved into this property he was not the owner of the property at that time; he was a lessee and just leased the
front portion of this property; hence the layout of the site plan. Mr. Morganti moved into the property in good
faith with the understanding that it was a C-3 zone district and that this was a use by right. He was not aware
of the critiera for a site plan review based on his lease agreement with the prior owner. After being made
aware of that requirement he did hire a civil engineer as well as a land planner to put together the site plan
review which was reviewed and conditionally approved by staff. This is a step forward to take care of these
issues which have been ongoing on the property and to clear this property up. After the Site Plan Review was
conditionally approved, Mr. Morganti purchased the entire lot and has been working with planning staff and
outside entities to take care of the violation. They believe that because he was not the property owner when
the violation occurred that it is not solely from his creation.
The next criteria is "The reasons set forth in the application and testimony justify the granting of the variance
and the variance is the minimum variance that will make possible the reasonable use of the lot, building or
structure." This is a very unique existing situation that justifies the variance. The existing model home is the
smallest width available which is 30 feet wide. If the model is sold or removed another similar model with the
same width would be replaced in the same location therefore being able to use the existing improvements
such as the parking area and the walkway. The request for a 6 foot setback variance is the minimum request
based on the existing and any future models, therefore they do meet that critera.
The next criteria is "The granting of the variance will be in harmony with the purpose and intent of this chapter
and will not be injurious to the neighborhood or otherwise detrimental to the public health, safety, and welfare."
This request was reviewed by several referral agencies and none were in opposition to this request. As Mr.
Gathman indicated he had not received a call back from the City and County of Broomfield. Mr. Hodges
indicated that he called them as well and did not have one returned call. He added that they have received
mostly positive referrals. CDOT is not in opposition as well as Mountain View Fire Protection District. The Site
Plan Review 381 which includes the front portion of the property is the best layout based on the existing use of
the property and was reviewed by several agencies through that process. The existing site layout has been
existing in harmony with surrounding land use and the granting of this request will be in harmony of the intent
of the code. Mr. Hodges showed on a visual slide that this property is surrounded by other commercial uses
and that they are using most of the property right up to the fence boundaries.
Mr. Hodges commented that they respectfully request approval of this application today as they meet the five
criteria. He added that at the appropriate time they would like to discuss the conditions of approval.
Mr. Neff referred to the sidewalk and said it appears to end near the north end of the office modular. He
asked if it would be possible to continue the walk to the north and back west again to the parking lot between
the two modulars. Mr. Hodges replied that there is an elevation problem.
Mr. Neff asked how the unit would be moved. Ricardo Morganti, 2038 E I-25 Frontage Rd, Erie CO. Mr.
Morganti commented that the home would be moved straight to the east and then it would go around to the
north.
Mr. Hansford clarified that the unit was 30 feet wide. Mr. Morganti replied yes. Mr. Hansford wished to clarify
that if the unit was sold if the applicant wished to use the exact same spot for the next show home with no
change in setback. Mr. Morganti said that he would like to keep the same setback if approved. The north part
of property has been turned into a drainage easement because of the site plan review.
Mr. Neff asked if County Road 6 were to be widened then what would be the applicant's plan with the unit.
Mr. Hodges clarified with Mr. Barker if there is any potential expansion of right-of-way if it does not already
exist or in place wouldn't it be negotiable for expansion of the right-of-way at that point? Mr. Barker said that
anytime they expand the right-of-way they need to buy that and it would be a negotiated price and if not
negotiated they could condemn it.
Mr. Gimlin asked to clarify the USR on site. Mr. Hodges explained that the USR was on the entire property so
when Mr. Morganti leased that west portion then it was made aware through the property owner that it was a
violation and then they worked with staff on a Site Plan Review for just the west end. Staff has determined
that if the applicant keeps the Site Plan Review on the west portion for the modulars as welt as keep the
woodworking shop on the rest of the property that Mr. Morganti will need to apply for a Recorded Exemption to
keep both uses.
Mr. Gimlin asked if a building permit was required to set the modular home where it is. Mr. Hodges
commented that through the conditions of the Site Plan they needed to apply and obtain building permits for
these modulars and through that process it was determined that this modular did not meet the setback.
Mr. Neff asked about handicap accessibility into the model homes. Mr. Hodges commented that the two
modular units that are the show homes are not accessible; therefore they are mainly looked at from the
outside. The office has a ramp for accessibility.
Ms. Owens asked to clarify again if the model homes can be accessible. Mr. Hodges said that the customers
can see the model homes from the outside. Ms. Owens asked what the sense is of having a model if you
can't go into it. Mr. Morganti commented that the center model is a model also but used as an office. He
added that there is a handicap ramp for accessibility.
Mr. Hodges commented that these units can be made to be accessible through the building permit process
and they would need the handicap accessibility. Mr. Hodges reiterated that at this time these units are not
accessible. He added that the building permits are on hold pending the outcome of today's decision.
The Chair asked if there was anyone in the audience who wished to speak for or against this application. No
one wished to speak.
Mr. Hodges commented that they are requesting that the attached conditions be deleted as they would like to
have this site usable for any other model that would replace this one should it be sold. He added that just to
have the variance for this model only defeats the purpose of the ongoing Site Plan Review and the commercial
operation if they can only have two models on that site.
Mr. Gimlin said that one of the arguments is that the applicant would experience some financial burden to
come into compliance with the existing modular but that would be mitigated in the future if this model was sold.
Mr. Hodges said that the applicant would still have the improvement costs with taking out the sidewalks and
part of the parking area. To make it a usable site they would have to move the office north and that would be
a huge financial burden as it has full utilities.
There was some discussion on changing the layout of the property to meet the setbacks and moving the
modulars around.
Mr. Hansford commented that since there are two homes that are not accessible at this time he doesn't
understand the reason to replace it once it's sold if no one can access it anyway. He asked if it could be
reasonable to have two show homes on the property rather than three. He is not opposed to this request if the
conditions are left in place. If the conditions were removed then it could open a can of worms later on when
they do decide to do something with the existing south road.
Mr. Gimlin agreed with Mr. Hansford and added that moving the current structure seems over burdensome
from a common sense standpoint as you are asking them to meet a setback for a right-of-way that really isn't
being used right now anyway. But to allow an ongoing variance on a mobile unit like that is another issue.
Jerry Neff moved to delete the attached conditions as proposed. Motion died due to lack of second.
Mr. Hansford commented that he understands that it would definitely be costly and a serious aggravation to
move the modular or adjust the access to make adjustments; however if that particular unit would be sold and
out of the way that would make demolition a lot easier as far as moving.
Jerry Neff moved that Case BOA -1057 be approved along with the Conditions of Approval as proposed,
seconded by Benjamin Hansford.
The Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Bill Hall,
absent; William Hansen, absent; Erich Ehrlich, absent; Benjamin Hansford, yes; Jerry Neff, yes; Anita Owens,
no; Bryant Gimlin, yes; Bruce Fitzgerald, absent. Motion carried.
Meeting adjourned at 12:13 p.m.
Respectfully submitted,
Kristine Ranslem
Secretary
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