HomeMy WebLinkAbout20090301.tiffHEARING CERTIFICATION
DOCKET NO. 2009-03 AND 2009-04
RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT #1673
FOR A KENNEL (50 DOGS OF A NON-SPECIFIC BREED TO INCLUDE PERFORMANCE
TRAINING) AND TWICE A YEAR THREE-DAY SPECIAL AGILITY, OBEDIENCE, AND
RALLY EVENTS FOR UP TO 200 DOGS OF A NON-SPECIFIC BREED, IN THE
A (AGRICULTURAL) ZONE DISTRICT - CYNTHIA HUTT
AND
SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT #1674
FOR A KENNEL (FOR 50 DOGS OF A NON-SPECIFIC BREED, INCLUDING
PERFORMANCE TRAINING) IN THE A (AGRICULTURAL) ZONE DISTRICT - CYNTHIA
HUTT
A public hearing was conducted on February 4, 2009, at 10:00 a.m., with the following present:
Commissioner William F. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem
Commissioner Sean P. Conway
Commissioner Barbara Kirkmeyer
Commissioner David E. Long - EXCUSED
Also present:
Acting Clerk to the Board, Jennifer VanEgdom
County Attorney, Bruce Barker
Planning Department representative, Jacqueline Hatch
The following business was transacted:
I hereby certify that pursuant to notices dated December 22, 2008, and duly published
December 26, 2008, in the Greeley Tribune, a public hearing was conducted to consider the
request of Cynthia Hutt for a Site Specific Development Plan and Use by Special Review
Permit #1673 for a Kennel (50 dogs of a non-specific breed to include performance training) and
twice a year three-day special agility, obedience, and rally events for up to 200 dogs of a
non-specific breed, in the A (Agricultural) Zone District, as well as a Site Specific Development Plan
and Use by Special Review Permit #1674 for a Kennel (for 50 dogs of a non-specific breed,
including performance training) in the A (Agricultural) Zone District. Bruce Barker, County Attorney,
made this a matter of record.
Jacqueline Hatch, Department of Planning Services, briefly described the requested uses, and
indicated staff received an E-mail from the applicant, dated February 3, 2009, marked Exhibit D,
requesting a continuance of both cases. She clarified the E-mail requested a continuance of
approximately three months for Use by Special Review (USR) #1673, indicating the applicant
desires to meet with surrounding property owners to address items of mis-communication, and a
four -month continuance for USR #1674, in order to obtain the results of a water board hearing
scheduled for May 19-20, 2009, in addition to meeting with surrounding property owners. She
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indicated several E -mails of opposition to the continuance request have been submitted by
surrounding property owners, and are included within the file as Exhibits E, F, and G. She clarified
the surrounding property owners have indicated the applicant has not previously made an attempt
to resolve issues. Ms. Hatch indicated the Department supports the applicant's request for a
continuance of the matter; however, staff requests that if the Board desires to approve the
continuation request, that both cases be set for the same hearing date, and not two separate dates.
She confirmed if the applicant proposes changes to the application materials after discussions with
the surrounding property owners, the matter will need to be re -noticed and will have to repeat the
process of being considered by the Planning Commission before being considered by the Board.
Cynthia Hutt, applicant, indicated she is requesting a continuance for USR #1674 due to the water
board hearing scheduled on May 19-20, 2009, and she would like to have all water issues resolved
before the application is presented for approval. She further indicated she is requesting a
continuance of USR #1673, since many of the neighbors expressed a lot of confusion regarding
the uses on the site at the Planning Commission hearing; therefore, she would like to meet with
the neighbors to address their concerns, since there has not been enough time for her to do so
since the date of the Planning Commission. She stated the notification sign for USR #1674 posted
on the site mistakenly contained the wrong description of uses to be considered on the property,
which was brought to staff's attention, and she expressed her concerns that USR #1674 was not
discussed at the Planning Commission hearing. She indicated she believes USR #1674 was
overshadowed by the denial of USR #1673, and she does not believe she was allowed adequate
opportunity to discuss the subsequent application. She further indicated she does not feel she was
given appropriate guidance from staff regarding her application materials; however, Tom Honn,
Director, Department of Planning Services, offered his assistance to make corrections to the
application materials. She stated the letters of concern provided to the Department contained
concerns regarding a 200 -dog commercial kennel, which was never the intent of the application
materials. Responding to Chair Garcia, Ms. Hutt reiterated the water board hearing date of May
19-20, 2009, is for consideration of the use of the existing well for USR #1674, and she confirmed
it is important to have the water issues resolved before proceeding with the application.
Commissioner Kirkmeyer indicated many people attended the Planning Commission hearing on
January 20, 2009, and many are in attendance again today, taking time off from work and their
busy schedules. She questioned why a continuance request was not submitted until the day before
the hearing. In response, Ms. Hutt indicated she contacted staff on January 21, 2009, the day after
the Planning Commission hearing, at which time Mr. Barker indicated she needed to discuss her
concerns with Mr. Honn. She indicated she left a message for Mr. Honn, and he indicated to her
that he would speak with Mr. Barker and Ms. Hatch regarding the situation, and return her call on
Friday, January 23, 2009. She indicated she did not receive a return phone call until Monday,
January 26, 2009, at which time a two-hour appointment was set for Tuesday, January 27, 2009.
She confirmed she tried to call Mr. Honn several times, and her call was not returned until the next
day, on Wednesday, January 28, 2009. She stated Mr. Honn had previously proposed several
items of corrective action, including holding neighborhood meetings, or reconstruction of the
application materials; however, when he returned her call on Wednesday, January 28, 2009, he
indicated that he could not provide any help, and suggested she request a continuance of the
matter, or withdraw the applications. She confirmed she decided over the weekend to request a
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continuance, as recommended by staff. Responding to Chair Garcia, Ms. Hatch reiterated staff
recommends that if the Board approves the applicant's request for a continuance, that both of the
applications be considered on the same hearing date. She clarified if the applicant desires to make
changes to the application materials after meeting with surrounding property owners, re -notification
will need to be sent to surrounding property owners, and the applications will be required to be
reviewed again by the Planning Commission. In response to Commissioner Kirkmeyer, Mr. Barker
indicated changes to uses listed within the application will not be considered to be a Substantial
Change, since the applications have only been reviewed by the Planning Commission so far.
Responding to Chair Garcia, Mr. Barker indicated the Board also has the option to continue the
hearings indefinitely, and refer the matter back to Planning staff. Commissioner Conway indicated
regardless of the action taken today, he would like the members of the audience to be able to
provide testimony. Mr. Barker indicated the Board may receive testimony regarding only the
request of the continuance. Commissioner Conway questioned what actions have already been
taken by the applicant to work with the surrounding property owners. Following several outbursts
within the audience, Chair Garcia requested that audience members respect the nature of the
proceedings by remaining quiet, and confirmed the audience will be able to provide testimony to
the Board at the appropriate time. In response to Commissioner Conway, Ms. Hutt indicated she
has reviewed the recommendations contained within the referrals, as well as the letters provided
by surrounding property owners, and a previous water board hearing was set for January 7, 2009,
at which time she discussed questions and concerns with the surrounding property owners who
attended the hearing. She confirmed she understands she needs to make additional contact with
her neighbors, which is why she is requesting additional time.
Chair Garcia indicated he understands that many within the audience have traveled a long distance
to provide testimony today, and due to the continuance request made by the applicant, the Board
will not hear testimony regarding the applications at this time; however, testimony may be provided
regarding the continuance request, specifically the hardship it creates for neighbors to come
provide testimony at a later date. Mr. Barker clarified the Board needs to indicate the proposed
date the matter could be continued to, and then obtain testimony from the audience regarding why
they would not be able to attend on that date, or provide written testimony to be added to the record
before that date. Commissioner Kirkmeyer suggested a continuation of both applications to June 3,
2009, in order to accommodate adequate response time following the water board hearing, and
the Board concurred.
Fred Jensen, surrounding property owner, expressed his frustration regarding the inconsistencies
between the request listed within the application materials, and the verbal information presented
to the Board by the applicant. He indicated the first time he had heard that the applicant would
request a continuance was yesterday, and he has written evidence of the correspondence between
Ms. Hatch and Ms. Hutt, dating back to September 29, 2008, when the application process first
began; however, in that large span of time, the applicant has never notified or contacted any of the
surrounding property owners. He indicated he does believe the applicant will diligently make time
to talk to the surrounding property owners if the continuance request is granted. At the request of
Mr. Barker, Chair Garcia requested Mr. Jensen to direct his comments to the possibility of a
continuance of the matter to June 3, 2009, and his availability to provide testimony on that date.
Mr. Jensen confirmed he attended the previous water hearing because he is a well owner within
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500 feet of the applicant's well, and he was not notified at that time that the applicant proposed to
utilize her property for commercial uses. He indicated the purpose of the well hearing on
May 19-20, 2009, is solely to determine if the applicant may utilize her well for commercial
purposes, therefore, a delay of this hearing is not necessary. Responding to Commissioner
Kirkmeyer, Mr. Jensen indicated he is opposed to a continuance of the matter because he believes
the situation has been dragged out long enough already. He confirmed he has a copy of a petition,
signed by surrounding property owners, indicating the kennel uses are not wanted within the
neighborhood, and over 25 people have taken the effort to attend today to express their concerns
to the Board. Further responding to Commissioner Kirkmeyer, Mr. Jensen stated attending another
hearing on June 3, 2009, will create a hardship for him, and after already attending three hearings,
it will be a major inconvenience to have to attend another hearing. He clarified the neighbors have
not misunderstood the applicant's request on the written application materials, and no amount of
future discussion will alleviate the hardship the applicant has already created for the other
surrounding property owners. Chair Garcia indicated he understands that many within the
audience will agree with the concerns presented by Mr. Jensen, and he requested that any other
relevant concerns regarding a continuance of the matter to June 3, 2009, be expressed at this time.
Al Gurule, surrounding property owner, indicated the continuance date of June 3, 2009, will be a
major inconvenience, as many families will be planning vacations for that week, since it is the first
full week after the school year is finished. He indicated the matter does not need to be continued;
all of the surrounding property owners do not want kennel uses within their neighborhood, and the
applicant is the only person who does not understand this.
John Cunningham, surrounding property owner, indicated he was first notified of the applicant's
plans to run a kennel in October, 2008, and he attended the previous water hearing, specifically
so that he could provide his contact information to the applicant. He confirmed he provided many
forms of contact information, and the applicant has never made an attempt to contact him, or the
rest of the surrounding property owners. He indicated the Subdivision contains restrictive
Covenants, which do not allow the proposed use. In response to Chair Garcia, Mr. Cunningham
indicated it is not fair to the neighbors who continue to take time off work to come to various
hearings solely because the applicant is allowed to change her mind regarding her application
materials. Further responding to Chair Garcia, Mr. Cunningham indicated a continuance of the
matter, to June 3, 2009, will be difficult for him since he is unsure of when his chemotherapy
appointments will be scheduled in the future, and he does not desire to take anymore time off of
work than necessary. He indicated he does not support a continuance of the matter since the
applicant will not be able to talk her neighbors into supporting a dog kennel to be located on her
property. In response to Commissioner Conway, Mr. Cunningham confirmed no amount of
discussion with the applicant, if the hearing were to be continued, would address his concerns, as
well as the concerns of many of the other surrounding property owners.
Patty Chart, surrounding property owner, indicated she has lived within the area for 37 years, she
has already scheduled two days away from work to attend the applicant's hearings, and she is
afraid she might lose her job if she has to request another day from work. She stated June 3,
2009, is not a good day for the continuance, since many families will be leaving for summer
vacations during that week, and many others will be required to work. She further stated she does
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not believe any of the surrounding property owners will consent to a reduced number of animal
units within the kennels after discussions with the applicant, since the subdivision is small and the
properties are close together. Responding to Chair Garcia, Ms. Chart confirmed she is against a
continuance of the hearing.
Gerald Eberly, surrounding property owner, expressed his opposition to the continuance request.
He clarified he was previously informed that the Department of Planning Services would be
recommending denial of the application, rather, Ms. Hatch testified today that the Department
supports the applicant's request for a continuance, of which he is opposed.
Larry Smith, surrounding property owner, indicated he has owned his property since 1976, and he
does not believe a continuance of the hearing will be productive for the applicant. He indicated the
Subdivision contains Covenants, which prohibit the requested use, and he will respect the opinion
of the Board; however, the situation will not be helped with a continuance to a later date. He
clarified he does not want to experience escalated problems within his community; rather, he would
like all of the neighbors to be able to live in peace.
Lynn Schneider, surrounding property owner, indicated she does not want the matter to be
continued to June 3, 2009, since she will already have to attend an additional water hearing in May,
2009. She expressed her concerns regarding the financial difficulty of hiring an Attorney who is
knowledgeable concerning water issues, and she confirmed taking an additional two days off of
work to attend hearings will be detrimental to her employment.
Dovie Trotter, property resident, indicated she supports the applicant's request for a continuance.
She confirmed she has a full-time job, and she is under many of the same restrictions as many of
the members of the audience.
Debra Fletcher, surrounding property owner, indicated she supports the applicant's request for a
continuance of the matter. There being no further testimony, the Chair closed the public input
portion.
Commissioner Rademacher indicated, if the Board desires to continue the USR cases to a future
date, he requested both cases be scheduled for the same date, so that neighbors do not have to
attend two separate hearings. Commissioner Conway indicated many people will have to take time
off from work and travel a long way to provide testimony at a future hearing. He clarified he is not
sure that a continuance of the matter will help the applicant solve any of the concerns presented
by the surrounding property owners, therefore, he believes a continuance will just be a waste of
time for the people in attendance today. He confirmed he does not wish to waste the surrounding
property owners' time, as they have already sacrificed to attend the hearing today, as well as
previous meetings, therefore, he would like the hearing to proceed today. Commissioner
Kirkmeyer concurred with Commissioner Conway and indicated it appears the applicant is possibly
intending to make changes to the application materials after she is able to speak with surrounding
property owners, therefore, she believes it would best for the applicant to withdraw her application
and begin the hearing process once the new applications are ready. She confirmed a delay of the
matter from today will cause a hardship for the neighborhood. Chair Garcia indicated if the Board
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decides to move forward with the hearing today, he would like a Condition of Approval to be added
to the Resolution which indicates that approval of USR #1674 will be contingent upon the results
of the water board hearing scheduled for May 19-20, 2009.
Mr. Barker reminded the Board that a policy exists in which the applicant may request a
continuance of a hearing when only four Commissioners are present, and he confirmed
Commissioner Long is excused today. Chair Garcia advised Ms. Hutt that she has the option of
the continuing the matter to a date when the full board will be present. However, if the hearing
proceeds today, the matter will require three affirmative votes, or in the case of a tie vote,
Commissioner Long will listen to the record, considering the submitted exhibits, and will make the
determining vote. In response to Chair Garcia, Ms. Hutt indicated she would like to add the
situation of only four Commissioners being present today to her previously listed reasons for her
request of the continuance of the matter.
In response to Commissioner Rademacher, Mr. Barker confirmed if the cases are continued today,
they must be continued to a certain date, and the cases must be called up on the date they are
continued to. Chair Garcia indicated it has been a standard policy of the Board to approve an
applicant's request for continuance of a matter when a full Board is not present, since the absence
of a Commissioner is not the fault of the applicant or the members of the public. He expressed his
concern regarding the Board setting a precedence by not approving the applicant's request.
Commissioner Kirkmeyer expressed her frustrations regarding the situation, and in response to
Commissioner Kirkmeyer, Ms. Hatch indicated the surrounding property owners have made it clear
to her that they will not support any use of the property except what is a Use by Right, therefore,
she does not expect that any of the neighbors will change their minds if the hearing were to be
continued to June 3, 2009. Further responding to Commissioner Kirkmeyer, Ms. Hatch indicated
she has corresponded with the applicant through various E -mails during the application process,
and all of the E -mails have been added to the case file. She further stated she has met with the
applicant on several occasions to discuss referral responses and the letters provided by
surrounding property owners, and she previously advised the applicant to schedule a meeting to
discuss the concerns presented by the neighbors. Commissioner Rademacher expressed his
concerns regarding the potential for the applicant to create substantial changes to the application
materials, which would require the matter to be re -heard by the Planning Commission. He
indicated the neighbors should not be subjected to several more future hearings. Commissioner
Conway indicated he believes the provision for Commissioner Long to listen to the record is a
sufficient remedy for a possible tie -vote situation. He confirmed many of the neighbors are
sacrificing their time to be present today, and a continuation of the matter will present a real
hardship for many of the neighbors. He stated the issue needs to be resolved today, therefore, he
supports going forward with the hearing, as scheduled. In response to Chair Garcia, Mr. Barker
confirmed if the matter is heard by the Board today, and ultimately denied, the applicant may
re -apply within the next year based upon the presumption that a substantial change has occurred,
which would be determined by the Board. He further confirmed after one year, the applicant may
re -apply without having to complete the Substantial Change hearing process.
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Commissioner Kirkmeyer moved to deny the applicant's request for a continuance of the matter,
based upon the reasoning that a delay of the matter will create a hardship to the neighborhood; that
the outstanding issues will not be resolved with additional time; that there may be changes to the
application, which would cause a need for the matter to be re -noticed and re -heard by the Planning
Commission; and that a remedy exists if the vote of approval of the matter results in a tie vote
today, by allowing Commissioner Long to listen to the record and make the determining vote.
Commissioner Conway seconded the motion. Chair Garcia indicated he endorses the factual basis
of Commissioner Kirkmeyer's motion; however, due to past precedent, indicating an applicant is
granted a continuance request when five Commissioners are not present, he is not in favor of the
motion. In response to Commissioner Rademacher, Mr. Barker clarified the motion to deny the
continuance request requires three affirmative votes, and if the result is a tie vote, the motion will
fail, since the effect of the failure to obtain a majority vote is a denial of the motion. He further
clarified if the motion fails, a motion to approve the applicant's request will be required, and if that
motion fails to obtain a majority vote, the matter will be required to proceed today, as legally
noticed. Upon request for a roll -call vote, the motion failed on a vote of two -to -two, with
Commissioners Rademacher and Garcia opposed.
Commissioner Kirkmeyer reiterated she is opposed to the continuance of the matter; however, for
procedural reasons, she made a motion to approve the applicant's request to continue USR #1673
and USR #1674 to June 3, 2009, at 10:00 a.m. The motion was seconded by Commissioner
Rademacher, and upon request for a roll -call vote, the motion failed on a vote of two -to -two, with
Commissioners Kirkmeyer and Conway opposed.
Chair Garcia indicated the hearing will proceed today, as required; however, he recessed the
matter and stated the hearing will resume upon completion of the hearing for USR #1667.
Upon completion of the hearing for USR #1667, Mr. Barker reiterated a brief summary of the cases
for USR #1673 and #1674. Chair Garcia issued a short recess at the request of Commissioner
Kirkmeyer. Upon reconvening, Chair Garcia indicated he would like for Ms. Hatch to briefly provide
an introduction of the cases, and then the Board would like to hear from any member in the
audience who will not be able to return to provide testimony after the lunch break, which will begin
at 11:45 a.m.
Ms. Hatch indicated she has spoken with the applicant during the previous proceedings, and the
applicant has requested withdrawal of the applications for both USR #1673 and USR #1674. In
response to Chair Garcia, Mr. Barker clarified he does not remember an instance in which the
Board has not granted the applicant's request to withdraw an application. He indicated it is the
applicant's perogative to withdraw an application, and denying the applicant's request for
withdrawal is not appropriate. In response to Commissioner Kirkmeyer, Chair Garcia requested
the applicant to verbally state her request for the record.
Ms. Hutt confirmed she is requesting that the applications for USR #1673 and USR #1674 be
withdrawn at this time. She clarified she does not believe the applications would be considered by
the Board with open ears, due to all the controversy already expressed. In response to
Commissioner Conway, Mr. Barker confirmed Ms. Hutt will have to start the application process
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from the beginning if she were to decide to proceed with her request at some point in the future.
Commissioner Kirkmeyer indicated she is disappointed with the reason for the withdrawal, and the
applicant would have been given a fair hearing today if she had elected to move forward.
Commissioner Rademacher concurred with Commissioner Kirkmeyer and indicated the Board
conducts hearings fairly by allowing the applicant to present their request, and then hearing from
anyone in the audience wishing to express support or concerns. He indicated while he is
disappointed the applicant chose to withdraw, he will respect the wishes of the applicant and vote
in favor of the withdrawal request. Commissioner Conway confirmed it is the perogative of the
applicant to withdraw an application, and he also respects the wishes of the applicant. He further
confirmed the Board does not discuss any information relating to land use hearings before the case
is formally presented in order to ensure the applicant is given a fair hearing. Chair Garcia indicated
he believes the matter regarding the consideration of the continuance was handled in an
appropriate manner, since all involved were allowed to provide testimony. He confirmed a fair
hearing would have been possible today; however, he respects the applicant's decision to no longer
pursue the matter.
Commissioner Conway moved to accept the request of Cynthia Hutt to withdraw the application for
a Site Specific Development Plan and Use by Special Review Permit #1673 for a Kennel (50 dogs
of a non-specific breed to include performance training) and twice a year three-day special agility,
obedience, and rally events for up to 200 dogs of a non-specific breed, in the A (Agricultural) Zone
District. The motion was seconded by Commissioner Kirkmeyer, and it carried unanimously.
Commissioner Conway further moved to accept the request of Cynthia Hutt to withdraw the
application for a Site Specific Development Plan and Use by Special Review Permit #1674 for a
Kennel (for 50 dogs of a non-specific breed, including performance training) in the A (Agricultural)
Zone District. Seconded by Commissioner Kirkmeyer, the motion carried unanimously.
Commissioner Conway expressed his appreciation to the surrounding property owners for coming
to the hearing today and expressing their concerns. Commissioner Rademacher concurred and
clarified the dissension felt today was regarding the regulations of the land use process, and not
against the specifics of the case itself. Chair Garcia instructed the members of the audience to
direct their questions to staff, and he expressed his appreciation for their involvement in today's
hearing. There being no further discussion, the hearing was completed at 11:35 a.m.
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This Certification was approved on the 9th day of February, 2009.
APPROVED:
BOARD OF Ce • NTY COMMISSIONERS
ELD sin ,TV, COLORADO
ATTEST: 4144/1
Weld County Clerk to the Bo
BY.
Dep4Cle&to the Board
iam F. Garcia, Chair
//
0.0
Douglas 'RademaEher, Pro -Tern
SearyP. Conway
Barbara Kirkmeyer
EXCUSED
David E. Long
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EXHIBIT INVENTORY CONTROL SHEET
Case USR #1673 - CYNTHIA HUTT
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 01/20/2009)
D. Applicant Request for Continuance, dated 02/03/2009
E. Fred Jensen E-mail re: Opposition to Continuance
request, dated 02/03/2009
F. Christina, George, and Jerry Eberly E-mail re: Opposition to Continuance
request, dated 02/03/2009
G. Patricia and John Cunningham E-mail re: Opposition to Continuance
request, dated 02/03/2009
H. Planning Staff Certification and photo of sign posting
Jennifer Whiting E-mail re: Opposition to Continuance
request, dated 02/04/2009
J. Planning Staff Letter re: PC Denial Recommendation,
dated 01/21/2009
K.
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EXHIBIT INVENTORY CONTROL SHEET
Case USR #1674 - CYNTHIA HUTT
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 01/20/2009)
D. Applicant Request for Continuance, dated 02/03/2009
E. Fred Jensen E-mail re: Opposition to Continuance
request, dated 02/03/2009
F. Christina, George, and Jerry Eberly E-mail re: Opposition to Continuance
request, dated 02/03/2009
G. Patricia and John Cunningham E-mail re: Opposition to Continuance
request, dated 02/03/2009
H. Planning Staff Certification and photo of sign posting
I. Jennifer Whiting E-mail re: Opposition to Continuance
request, dated 02/04/2009
J. Planning Staff Letter re: PC Denial Recommendation,
dated 01/21/2009
K.
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