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HomeMy WebLinkAbout20081205.tiff HEARING CERTIFICATION DOCKET NO. 2008-35 AND NO. 2008-36 RE: AMENDED CHANGE OF ZONE, AMPZ #516, FROM THE A (AGRICULTURAL) ZONE DISTRICT TO THE E (ESTATE) ZONE DISTRICT FOR A PORTION OF OUTLOT A (TO CREATE TWO BUILDABLE LOTS FOR RESIDENTIAL PURPOSES) IN AVERY ACRES PLANNED UNIT DEVELOPMENT - GEORGE BOLLINGER AND RE: A SITE SPECIFIC DEVELOPMENT PLAN AND SECOND AMENDED PUD (PLANNED UNIT DEVELOPMENT) FINAL PLAN, 2NDAMPF #496, TO ADJUST THE OUTER BOUNDARIES OF OUTLOT A AND CREATE TWO ADDITIONAL SINGLE-FAMILY RESIDENTIAL LOTS FOR OUTLOT A OF AVERY ACRES PUD-GEORGE BOLLINGER A public hearing was conducted on May 14, 2008, at 10:00 a.m., with the following present: Commissioner William H. Jerke, Chair Commissioner Robert D. Masden, Pro-Tern - EXCUSED Commissioner William F. Garcia Commissioner David E. Long Commissioner Douglas Rademacher Also present: Acting Clerk to the Board, Esther Gesick County Attorney, Bruce Barker Planning Department representative, Chris Gathman Health Department representative, Lauren Light Public Works representative, Don Dunker The following business was transacted: I hereby certify that pursuant to notices dated April 18, 2008, and duly published April 23, 2008, in the Fort Lupton Press, a public hearing was conducted to consider the request of George Bollinger for Amended Change of Zone,AmPZ#516, from the A(Agricultural)Zone District to the E(Estate) Zone District for a portion of Outlot A(to create two buildable lots for residential purposes)in Avery Acres Planned Unit Development, as well as for a Site Specific Development Plan and Second Amended PUD (Planned Unit Development) Final Plan, 2ndAmPF #496, to adjust the outer boundaries of Outlot A and create two additional single-family residential lots for Outlot A of Avery Acres PUD. Bruce Barker, County Attorney, made this a matter of record. Chair Jerke advised the applicant's representative, Patrick McNear, Scott Realty Company, that he has the option of continuing this matter to a date when the full Board will be present. However, if he decides to proceed today, it will require three affirmative votes, or in the case of a tie vote, Commissioner Masden will listen to the record and make the determining vote. Mr. McNear indicated he would like to proceed today. The applicant's legal council, Tom Grant, also introduced himself for the record. 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ #516 AND 2NDAMPF#496) PAGE 2 Chris Gathman, Department of Planning Services, presented a brief summary of the proposals, entered the favorable recommendation of the Planning Commission into the record as written, and stated the site access is located approximately 710 feet east of County Road 43. He stated the property is located in a non-urban area, outside any Intergovernmental Agreement(IGA)or Urban Growth Boundary (UGB) areas, and the nearest development is approximately two miles away. He explained the Change of Zone for Outlot A will go from A (Agricultural) to E (Estate), and he noted there is an existing Use by Special Review (USR) Permit for an airstrip on a parcel located approximately one-eighth of a mile northeast of the site. Mr. Gathman stated the Amended PUD Final Plan will vacate a portion of Outlot A from the original PUD, by reducing its size from 180 acres to 24 acres, as well as creating proposed Lots 6 and 7. He stated there are five existing residential lots, and the vacated portion of Outlot A, located south of Avery Drive, will revert back to A (Agricultural) zoning and no longer be part of the development. Mr. Gathman stated seven referral agencies reviewed the Change of Zone proposal, and six responded favorably, or included comments that have been addressed in the Conditions of Approval. He stated nine referral agencies reviewed the Amended PUD Final Plan, which included the Colorado Division of Wildlife and Division of Water Resources, in addition to the seven that reviewed the Change of Zone. He further stated the Galeton Fire Protection District did not respond to either referral request; however, there is a Condition of Approval regarding an emergency access connection between Avery Drive and the access for the two proposed lots for emergency response. He further stated the proposed lots will be served by the North Weld County Water District and septic systems. Mr. Gathman stated staff did receive a letter of opposition, from the attorney for the residents in Avery Acres PUD, asserting the owner of Outlot A cannot utilize the existing access road, except for agricultural purposes. They further state when PZ #516 was approved, in 1998, the plat indicated Outlot A was to remain agricultural, and that further subdivision and residential construction was not allowed. He stated the letter further asserts the Resolution states, "The agricultural lot shall be labeled, 'non-buildable agricultural outlot.' Development on the agricultural outlot shall be limited to structures related to agricultural use. No residential structures shall be allowed." Mr. Gathman reiterated that Avery Acres PUD is located in a non-urban area and outside any IGA or UGB areas. He stated, at the time the original Change of Zone was approved, five(5) lots was the maximum allowed for non-urban scale PUD's; however, the Weld County Code has since been amended to allow up to nine (9) lots, therefore, the proposal is consistent with current regulations. He further stated the Code, as amended, does not require open space for non-urban PUD's; however, at the time PZ #516 was approved, a minimum 80-acre outlot was required to allow individual wells on individual lots, since there was no guarantee of the availability of public water. Mr. Gathman stated the existing homes are all currently connected to the North Weld County Water District. He stated Outlot A is agricultural land that has always been under separate, private ownership. He further stated the applicant is proposing common open space usage for the remaining Outlot A, to maintain the existing view corridor to the west. He stated Outlot A is located in the floodplain and will be designated as non-buildable, except for agricultural exempt buildings. Mr. Gathman stated the applicant originally proposed access along the County Road 72 section line; however, upon staff review, it was recommended that a road right-of-way connect Avery Acres with the section line access for the two proposed lots. Upon further discussions, staff is now recommending a separate access,ending in a cul-de-sac to serve Lots 6 and 7,with an emergency access connecting the two cul-de-sacs. He stated the Conditions of Approval will require an On-site Improvements Agreement, as well as a Nonexclusive License Agreement for the improvements and maintenance along County Road 72 right-of-way. He further stated the proposed lots will require separate Covenants; however, and the applicant has indicated they will submit Covenants that are consistent with the existing Covenants for Avery Acres PUD. He 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ #516 AND 2NDAMPF#496) PAGE 3 indicated the applicant is in agreement with creating an access, from the north, that ends in a cul-de-sac, with a 30-foot connection for emergency use only. In response to Chair Jerke and Commissioner Rademacher, Mr. Gathman stated two separate accesses ending in cul-de-sacs is not typically accepted. Responding further to Commissioner Rademacher, Mr. Gathman clarified the USR for the crop dusting runway is off-set to the northeast. Lauren Light, Department of Public Health and Environment, stated the site will be serviced by the North Weld County Water District and individual septic systems, which meet current density requirements; therefore, she has no concerns. Don Dunker, Department of Public Works, stated County Road 43 is a collector status road,which requires 80 feet of right-of-way at full buildout, and there is currently 60 feet of right-of-way. He stated the proposed lots will be accessed from the County Road 72 section line. Mr. Dunker stated, in 2006, the average daily traffic count on County Road 43 was approximately 1,205 vehicles, Outlot A is within the 100-year floodplain of Lone Tree Creek, and staff is in support of a second access to the area. In response to Chair Jerke, Mr. Dunker stated the Nonexclusive License Agreement will be for 30 feet south of the section line for County Road 72, approximately 700 feet from the intersection with County Road 43. He clarified County Road 72 does not currently exist, although there is a private access drive for the crop dusting operation. He stated there is no public right-of-way north of the section line, and allowing two adjacent private drives is not a preferred design. Patrick McNear, Scott Realty Company, stated Avery PUD was approved in December, 1998, consisting of five lots. He stated the development did not include a commitment for a domestic water supply, therefore, Outlot A was incorporated to satisfy the requirement of the Division of Water Resources in providing the necessary space for individual wells, if needed. He further stated, subsequent to the original approval, the five parcels were connected to the North Weld County Water District. Mr. McNear stated the Weld County Code has also been amended to allow a maximum of nine lots in a nonurban development, and this proposal will create an additional two lots on a 7.3-acre portion of Outlot A. He stated the owner, George Bollinger, desires to return approximately 158.06 acres to A(Agricultural)zoning, no longer subject to the PUD. He stated the Change of Zone is for the 7.3-acre parcel to change from A(Agricultural)to E(Estate)Zoning,with the remaining 23 acres to continue as a non-buildable outlot in the 100-year floodplain. He stated Lots 6 and7 are proposed to be located in the northeast corner of the site, and the size is not conducive to modern farming practices. He further stated the previous tenant farmer indicated the 7.3-acre area consumes a lot of water, due to topography, and is less productive than the 23-acre outlot. Mr. McNear stated there has been one recorded amendment to the PUD to remedy a building violation for setback requirements on the northern-most lot; however, the issue was resolved through the Board of Adjustment. He stated the proposed change will result in the highest and best use of all the parcels involved. He stated Mr. Bollinger has spent money and time to cleanup the previous farming operation,and the application is compliant with the referral agencies. He further stated the oil and gas producers will benefit from an improved roadway access, and the request is also consistent with surrounding agricultural and land uses. In response to Commissioner Rademacher, Mr. McNear stated the oil and gas producers are currently using a gravel road, and they are in agreement with the proposal. He further stated the applicant originally proposed extending the existing drive; however, due to opposition from the 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ #516 AND 2NDAMPF #496) PAGE 4 existing residents, the design was altered to access from the north, although they still believe it would be better to combine the roads. Responding to Commissioner Long, Mr. Dunker stated the Resolution of 1889 indicates there is no right-of-way on either side of the section line, therefore, a Nonexclusive License Agreement will not be required. Responding to Commissioner Garcia, Mr. McNear stated the oil and gas operator has signed off on the proposed layout, with the understanding that there will be a road to accommodate the drilling window. ChairJerke recessed the hearing until 1:30 p.m. Upon reconvening,Jacqueline Johnson,Attorney, represented the homeowners of Avery Acres PUD. She stated the Planning Commission discussed whether the PUD could be amended, since the original Resolution and recorded plat both indicate that Outlot A shall remain designated as agricultural and non-buildable. She stated, although she disagrees, the County Attorney determined that it can be amended. She stated the Covenants and plat notes were reviewed by the residents of Avery Acres, and there is no mention of potential for future amendment. She stated the Covenants are clear that the common interest community consisted of Lots 1 through 5,and Outlot B,also known as Avery Drive, and determined that the Outlot could be enlarged under the sole control of the Homeowners. She stated upon notification that the applicant was proposing to amend the Covenants and extend the road to access the new lots, the current residents protested. As a result, the applicant redesigned the layout to create a separate access for the proposed lots, thus creating a separate common interest community under a separate set of Covenants. Ms. Johnson stated the intent of a Planned Unit Development is to allow mixed uses; however, they must be compatible. She stated the residents are opposed to the proposal to amend an existing PUD with no assurance of compatibility between the two communities. She stated her clients attempted to contact the applicant, with no success; however, last week she did receive a letter from the applicant's attorney, Mr. Grant. She further stated her clients proposed the inclusion of the two lots into the existing Homeowners Association, with the understanding that Lot 1 be extended to accommodate the road extension; however, the offer was rejected. She noted the residents do not object to eliminating the outlot portion south of Avery Drive, although it will be subject to future development. Ms. Johnson stated the residents also question what will prevent further amendment of the remaining 23-acre Outlot A. In response to Commissioner Rademacher, Mr. Gathman stated the Amended Change of Zone was heard by the Planning Commission; however, the Amended Planned Unit Development Final Plan(AmPF)only requires a hearing before the Board of Commissioners. He stated although there was not a formal hearing for the AmPF, the details of the two proposal are very closely related and were discussed by the Planning Commission. In response to Chair Jerke, Ms. Johnson stated a previous landowner/developer divided the land, prior to Mr. Bollinger's ownership of the Outlot. Chair Jerke requested a review of the Covenants. Ms. Johnson stated Outlot A is specifically excluded from the Covenants, since it is under separate ownership, and it can only be included in the PUD by approval of the five lot owners. She further stated the Covenants were reviewed and approved as a Condition of Approval for the original Change of Zone; however, Mr. Barker stated the County does not enforce Covenants. He further stated there is a provision for amendments; however, this proposal is imposing an amendment without the vote of the residents. Responding to Chair Jerke, Ms. Johnson stated the residents paid a premium for their lots, based on the belief that Outlot A would remain open space. 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ #516 AND 2NDAMPF #496) PAGE 5 Ms. Johnson stated paragraph #2.A.1 of the Planning Commission Resolution indicates there will only be one lot; however, the applicant is now proposing two lots. She stated Conditions of Approval#1.B.3 and #2.L refer to Lot 6, with no mention of Lot 7, and Condition of Approval #4.0 requires the submittal of revised Covenants for Avery Acres PUD, which the applicant has no authority to do, and must submit a new separate set of Covenants. Karen Happerman, surrounding property owner, stated the limited communication they have had with Mr. Bollinger has been very threatening and uncomfortable. She stated his letters indicate a desire to be a good steward; however, his approach has been unsettling, and his present and future intentions are unclear. In response to Commissioner Long, Ms. Happerman stated she did pay a premium for her lot, based on the belief that the existing conditions would not change. Kelly Raisley, owner of Lot 3, stated her family were the first residents in the PUD, and they purchased their lot based on the presentation from Mr. Sutter, who was dividing his family farm. Ms. Raisley requested the Board consider the interests of the existing homeowners and protect their quality of life. She stated the residents have had no contact with Mr. Bollinger, other than letters, and she feels that adding an adjacent Homeowners' Association (HOA) will result in inconsistency and decreased property values. She further stated there are six other PUD's within six miles of the subject site, and many have empty lots, therefore, it makes no sense to create two additional lots under separate guidelines from the existing community. Jeff Raisely, owner of Lot 3, stated he understood there were no plans for future expansion, based on the design of Lot 1 which wraps around the cul-de-sac. He stated the previous owners were farmers who intended to continue farming; however, circumstances changed, and he has been unsuccessful in contacting Mr. Bollinger. He further stated the land has not been farmed for some time, there is a ten-inch water line which serves more than just the five lots in Avery Acres, and he purchased his property based on the recorded documents regarding the development. Ken Harris, owner of Lot 1, stated he agrees with the previous statements, and reiterated the original builder promised there would be no additional building to ensure their privacy. He stated he also reviewed the recorded plat and Resolution, which state Outlot A would not be built on. Responding to Commissioner Garcia, Mr. Harris stated the proposed emergency access will be an un-maintained eyesore. Responding to Chair Jerke, Mr. Harris stated the HOA agreed to extend the road through his property, in exchange for a property expansion on the north side of his lot; however, the applicant declined the proposal. Chair Jerke commented a building envelope may also be a good idea for the applicant to consider, if the counter-proposal is accepted. Clara Hansen, owner of Lot 2, stated she agrees with the previous statements, and stated her house was marketed with the assurance that the surrounding land would not be developed. She stated the existing residents get along well; however, they received negative correspondence from Mr. Bollinger requesting they keep their kids off his property. She stated they have never met Mr. Bollinger in person, and she does not trust the current manager of the Bollinger property, since he threatened her son. Responding to Chair Jerke, Ms. Hansen stated she purchased her property based on the understanding that the surrounding area would not be developed,and she questioned whether the remaining Outlot A will be subject to further development in the future. Responding to Commissioner Rademacher, Ms. Hansen stated the oil and gas well has a separate access and does not require access from Avery Drive. 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ#516 AND 2NDAMPF#496) PAGE 6 Craig Platt, Scott Realty, stated he can provide some clarification regarding the issues raised by the neighbors. Chair Jerke requested he reserve his testimony following completion of public input. Kelli Naibauer,owner of Lot 4, stated she purchased her property with the understanding that there would be no more development in the area. She stated they enjoy nice views from their homes, and although the two proposed lots will not impose on the view, she feels this request opens the opportunity for further development of Outlot A in the future. Mr. Platt stated Mr. Bollinger has experienced a significant trespassing issue, and some of the adversarial issues originated with the current residents. He stated Mr. Bollinger has invested $100,000 for pipelines and wells, since the farming operation was dormant for two years. He stated it is the applicant's intent to create a nice property, and the current residents have benefitted from the improvements. Mr. Platt stated the applicant is open to communications with the residents; however, he also wants to pursue the highest and best use of the land. Responding to Commissioner Rademacher, Mr. Platt stated Outlot A remained under separate ownership, the sprinkler system is located to the south, and the agricultural land to the north is wasted area. He stated Lot 1 wraps around the cul-de-sac because the house was built in the setback, and he is not sure why additional land needs to be deeded to the owner of Lot 1. He stated the applicant intends to build nice homes on the two new lots, and Mr. Bollinger has personally caught the neighborhood kids vandalizing his fields, at which time his attorney contacted the Sheriff's Office. Mr. Grant stated it has been established that the PUD may be amended, therefore, the remaining question is whether it should be amended. He stated the original owner informed the residents that the property would not be developed; however, the Covenants which were recorded prior to the sale of the lots indicate that lots could be added by approval of the Board of Commissioners. He further stated the property rights of Mr. Bollinger also need to be considered, since he has made a substantial investment and there is a legal right to develop the lots. Mr. Grant stated the original designed proposed a shared use and maintenance of Avery Drive to extend to the proposed lots, whereas the current residents preferred inclusion into the existing development. He stated a separate development is necessary to maintain Mr. Bollinger's control to ensure the lots are completed without modifications being made by the existing HOA Board which may prevent him from proceeding. He clarified he did go back to his office over lunch and did find the faxed proposal from Ms. Johnson with his staff; however, his client still does not agree with the proposal. He stated the application is consistent with the County Code criteria, and although the current residents do not support the proposal, he hopes they will be able to co-exist with the new residents, if approved. In response to Commissioner Rademacher, Mr. Barker stated although the cash-in-lieu fee is not mandatory, developers typically pay the requested amount. Mr. Gathman stated that requirement is consistent with the County's typical practice; however, there is no set district fee formula. Commissioner Rademacher stated there is the ability to amend a PUD and this may be the best use of the property; however, the design resulting in a separate access and Homeowners' Association does not reflect good planning. He stated it should also be understood that the Homeowners' Association does not have any rights to the open space without a coordinated agreement with the property owner. 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ#516 AND 2NDAMPF #496) PAGE 7 Commissioner Garcia stated the Board's options are to accept the application, deny the request, or approve a negotiated plan. He stated his primary concern is the amount of coordination required to make the proposal work. Chair Jerke stated the existing Homeowners'Association submitted a proposal to connect the road, with the request to honor the contribution of Lot 1; however, the applicant declined the offer. He stated the current residents indicated they purchased their lots based on a recorded plat, despite late changes which were made to the Covenants which indicated a potential for building. He stated if future changes are going to happen, then the development needs to be done correctly. Commissioner Long stated the current landowner purchased their lots with a certain concept in mind, and the Homeowners' Association tried to proceed with integrity. He stated the only other option would be to continue the matter to allow an opportunity for both parties to work on potential solutions. Commissioner Rademacher agreed the proposed lots appear to be a use for the land. Mr. Barker stated a continuance for the purpose of negotiating may present a problem, since there is an issue of incompatibility. Chair Jerke stated a continuance is also difficult in a quasi-judicial process which prevents the Board from discussing the matter. Mr. Grant stated due to the previous miscommunication, his client was not aware of the neighborhood proposal until this morning. He stated Mr. Bollinger's primary concern is getting the assurance that he can construct the two homes, and he has no concern with them being part of the existing Homeowners'Association once the building is complete. He stated the applicant has also agreed to acquire the cost of the additional maintenance, and they would agree to a continuance in this instance, since it appears they are close to an understanding with the neighborhood. Ms. Johnson stated a denial does not prevent the applicant from negotiating an improved design and proceeding with the substantial change process. Mr. Barker stated the Board has been discussing two separate cases which require separate motions with citations for their findings. Commissioner Long stated based on the previous discussion, he does not support a continuance. He stated the applicant still has the opportunity to proceed with negotiations, with the goal of meeting the intent of the Board. He moved to deny the request of George Bollinger for Amended Change of Zone, AmPZ#516, from the A(Agricultural)Zone District to the E(Estate)Zone District for a portion of Outlot A (to create two buildable lots for residential purposes) in Avery Acres Planned Unit Development, citing noncompliance with Sections 27-6-120.D.5.b, D.2.c, D.5.e.,and D.5.f of the Weld County Code. Commissioner Rademacher seconded the motion, which carried unanimously. Commissioner Rademacher moved to deny the request of George Bollinger for a Site Specific Development Plan and Second Amended PUD (Planned Unit Development) Final Plan, 2ndAmPF#496, to adjust the outer boundaries of Outlot A and create two additional single-family residential lots for Outlot A of Avery Acres PUD. Commissioner Long seconded the motion,which carried unanimously. 2008-1205 PL1274 HEARING CERTIFICATION - GEORGE BOLLINGER (AMPZ#516 AND 2NDAMPF #496) PAGE 8 Commissioner Rademacher stated he feels the proposed lots are the best use for the ground; however, the applicant needs to work with the residents of the existing PUD to work out the details. Commissioner Long stated he appreciates the integrity of the planning process, which allows a development to evolve through the review process and input from the public. Commissioner Garcia stated it is always a good idea for applicants to meet and work with the existing neighbors, since the new residents of the proposed lots will be neighbors, whether this is developed as one or two separate PUDs. There being no further discussion, the hearing was completed at 3:00 p.m. This Certification was approved on the 19th day of May, 2008. APPROVED: I /- 4\OARD OF COUNTY COMMISSIONERS �GLI_/,/ d yy LD COUNTY, COLORADO ATTEST: rr//rav ff aµ �� Pin: liam H. Jerke, Chair Wel County Clerk to the Bo. %® �N�� XCUSED BY: U 1 7l I i d i Robert . sd , Pro-Tem De u y Cle to the Board William F. Garcia David E. Long Douglas ademacher 2008-1205 PL1274 EXHIBIT INVENTORY CONTROL SHEET Case 2NDAMPF #496 - GEORGE BOLLINGER Exhibit Submitted By Exhibit Description A. Clerk to the Board Notice of Hearing (Filed under Legals) B. Planning Staff E-mail from Patrick McNear, dated 05/09/2008 C. Patrick McNear Letters from Applicant to Avery Acres residents, dated 05/14/2008 D. Planning Staff Referral from Eaton School District RE-2, dated 05/12/2008 E. Jacqueline Johnson Recorded Covenants, dated 07/20/2000 F. G. H. J. K. L. M. N. O. P. Q. R. S. T. U. 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