HomeMy WebLinkAbout20080546.tiff SUMMARY OF THE WELD COUNTY PLANNING COMMISSION MEETING
Tuesday, March 4, 2008
A regular meeting of the Weld County Planning Commission was held in the Weld County Department of
Planning Services, Hearing Room, 918 10'°Street, Greeley, Colorado. The meeting was called to order by
Chair, Doug Ochsner, at 1:30 p.m.
ROLL CALL ABSENT
Doug Ochsner-Chair
Tom Holton -Vice Chair
Nick Berryman — ,;
Paul Branham
Erich Ehrlich
1%
Robert Grand
Bill Hall '—<
Mark Lawley
Roy Spitzer
Also Present: Hannah Hippely,Chris Gathman,Roger Caruso,Department of Planning Services;Don Dunker,
Dave Snyder, Don Carroll, Department of Public Works; Lauren Light, Department of Health; Bruce Barker,
County Attorney, and Kris Ranslem, Secretary.
Bill Hall moved to approve the February 19, 2008 Weld County Planning Commission minutes, seconded by
Roy Spitzer. Motion carried.
The Chair read the case into record.
CASE NUMBER: USR-1647
APPLICANT: Public Service Company of Colorado
PLANNER: Hannah Hippely
LEGAL DESCRIPTION: Parts of Section 3 and Section 10 of T3N, R67W of the 6th P.M., Weld County,
Colorado.
REQUEST: A Site Specific Development Plan and a Special Review Permit for a Major Facility
of a Public Utility (electric power plant and associated gas pipeline) in the 1-3
(Industrial)and A(Agricultural)Zone District.
LOCATION: North of and adjacent to CR 34, and adjacent to the east and west of CR 19.5.
The Chair asked Hannah Hippely if this can remain on consent as it is a permit for a Major Facility of a Public
Utility. Ms. Hippely replied that typically a Major Facility of a Public Utility would not be on a consent agenda
because it is something that the Planning Commission makes a final decision on. However this case is a little
different because it is also a 1041 Permit which means that it is a more complex case and requires a Board of
County Commissioner's hearing. She added that in this case it can remain on the consent agenda.
The Chair asked if the applicant wished for this case to remain on the consent agenda. Ms. Hippely stated
that they do wish for it to remain on consent.
The Chair asked if there was anyone in the audience who wished to speak for or against this application. No
one wished to speak.
The Chair asked the Commissioners if they wish to have this case pulled from consent. No one wished to pull
the item from consent.
Robert Grand moved to approve the Consent Agenda and that Case USR-1647 be forwarded to the Board of
County Commissioners along with the Conditions of Approval and Development Standards with the Planning
Commission's recommendation of approval, Bill Hall seconded the motion. Motion carried unanimously.
The Chair read the next case into record.
CASE NUMBER: AMPZ-516
(Le rind u a,„; : �.� 3 /7- 07008— 069(c
APPLICANT: George Bollinger
PLANNER: Chris Gathman
LEGAL DESCRIPTION: OutlotA of Avery Acres PUD;located in W2 of Section 10,T6N,R65 of the 6th P.M.,
Weld County, Colorado.
REQUEST: An amendment to the PUD change of zone from Agricultural to Estate for a portion
of Outlot A(to create two buildable lots for residential purposes) in Avery Acres
PUD.
LOCATION: East of and adjacent to CR 43 and north of and adjacent to CR 70.
Bill Hall commented that with regard as a potential conflict of interest,he is very familiar with Avery Acres and
was involved in a proposal earlier on. He stated that he believes that he can judge it on a fair and equal basis
and is willing to hear the testimony. He added that if there is anyone in the audience that feels differently
about that he will step away from this issue.
The Chair asked Commissioner Hall if he feels that he will make his decision based on the information heard
at this hearing rather than from prior information. Mr. Hall stated that he would.
The Chair asked if there was anyone in the audience who had an objection to Mr. Hall hearing the case.
Jackie Johnson spoke representing the Homeowner's Association in Avery Acres and conveyed their concern
of a conflict of interest with Mr. Hall's participation in this case. Commissioner Hall excused himself from
hearing this case.
Chris Gathman, Department of Planning Services, introduced Case AmPZ-516. Mr. Gathman commented
that the applicant is George Bollinger and is represented by Pat McNear of Scott Realty.
The site is located on Outlot A of Avery Acres; located in the W2 of Section 10,Township 6 North, Range 65
West in Weld County.
The site is North of and adjacent to County Road 74 and % mile east of County Road 15.
The site is west of and adjacent to County Road 43 and south of adjacent to a non-county right-of-way on the
County Road 72 section line. The area proposed to be rezoned Estate is located approximately 710-feet east
of County Road 43.
Seven(7)referral agencies reviewed this case and six(6)referral agencies provided comments addressed as
conditions of approval and/or development standards.
The two proposed additional residential lots are to be served by the North Weld County Water District and
Individual Septic Systems.
A letter of opposition addressed to County Attorney Bruce Barker dated February 11,2008 was received from
Attorney John Barry of Witwer,Oldenburg, Barry&Johnson, LLP on behalf of the homeowners of Lots 1-5 in
Avery Acres PUD.The letter asserts that the owner of Outlot A cannot utilize the existing access road(Avery
Drive)except for Agricultural purposes.The letter also asserts that at the time PZ-516 was approved in 1998
that Outlot A would remain agricultural and would not be subdivided or allowed residential construction.The
resolution adopted on December 16, 1998 had the following language:
"The agricultural lot shall be labeled "Non buildable agricultural Outlot". Development on the
agricultural Outlot shall be limited to structures related to the agricultural use.No residential structures
shall be allowed."
Avery Acres PUD is located in what is classified as a non-urban area. It is outside of any existing municipal
IGA areas and urban growth boundary areas. It is also not located adjacent to any existing subdivisions or
PUDs. It is approximately 2 miles from the nearest subdivision which is Apaloosa Acres.
At the time PZ-516 was approved in 1998,five(5)lots was the maximum number of lots allowed for non-urban
scale PUDs.The Weld County Code has since been amended to allow up to nine(9)lots for non-urban scale
PUDs. The proposal would add two additional lots(allowing up to 7 lots)which is consistent with the County
Code for non-urban scale development. Also, the Weld County Code, as amended, does not require open
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space for non-urban PUDs. At the time PZ-516 was originally approved, a minimum 80-acre outlot was
required because there was no guarantee that public water would be available and an 80 acre outlot was
required for PUDs/subdivisions on individual wells. Currently all homes within Avery Acres PUD are now
connected to North Weld County Water District.
Outlot A of Avery Acres PUD was always under the separate ownership from the Homeowners Association. It
was and is agricultural land under private ownership. Mr. Gathman added that currently Mr. Bollinger is the
owner. He continued to add that at the time the PUD was approved it was under the ownership of the Sutter
family.
The applicants are proposing to The Common Open Space Usage(page 5)of the conceptual development
guide submitted with the original Avery PUD change of zone application (approved by the Board of County
Commissioners on December 16, 1998)states:"We respectfully request that the remaining agricultural outlot
be accepted as open space in this requirement. It provides a significant border between the residential PUD
and any county roads as well as ensuring that the open feel which these lots will have is maintained forever."
The proposed amended change of zone would create two additional lots between the existing residences and
County Road 72 to the north. However,the balance of the open space area to the west will remain within the
boundaries of Outlot A. This is located within the 100-year floodplain, and is to be designated as non-
buildable with the exception of agriculturally exempt, non-insurable facilities as required through staff
recommendation.
It should be noted that an amended final plat application has been submitted along with this amended change
of zone application. In the PUD process as laid out in the county code,an amended final plat is reviewed only
by the Board of County Commissioners. Under the amended final plat process, in addition to platting lots 6
and 7, the applicant is proposing to vacate that portion of Outlot A that is located to the south of Avery Drive
and Lot 5 of Avery Acres PUD. If approved, land vacated through the amended final plat will revert to
agricultural zoning.
In regard to access,the applicant had originally proposed a single lot to access onto the road at the north end
of the property(the County Road 72 section line road).After review by the Departments of Public Works and
Planning Services, it was recommended that a road right-of-way connect existing Avery Drive(serving lots 1-
5)with the section line road to allow two (2)access points into and out of Avery Acres PUD.
However,after further discussions with Public Works and with the existing Avery Acres Homeowners as well
as with the applicant, the Department of Public Works and Planning Services is recommending a separate
road access with a cul-de-sac(coming off of the section line road to the north)access proposed lots 6 and 7.
There would be an emergency only access with a knox box connecting the proposed road and cul-de-sac
accessing lots 6 and 7 with the existing Avery Drive that accesses existing lots 1-5. We have discussed this
with the applicant and they are in agreement with this request and these changes will be reflected on the
amended change of zone and amended final plats prior to the Board of County Commissioner's hearing.An
on-site road improvements agreement along with a non-exclusive license agreement for County Road 72 to
create a non-maintained county road right-of-way will be amended final plat requirements for the access to
these lots. Don Dunker with Public Works can certainly elaborate on this in more detail.
The applicants are willing to make the two proposed lots part of the Homeowner's Association for Avery Acres
PUD, however the representative for the homeowners may have something to say about whether or not they
would want those lots to fall under the existing covenant for lots 1-5 in Avery Acres PUD.
Commissioner Branham asked about this letter from the attorney on Page 2 in which there is a reference to a
Resolution passed on December 16, 1998. It states that "Outlot A shall be limited to structures related to
agriculture use. No residential structures shall be allowed." Mr.Branham asked if that was legally binding on
the Weld County Planning Commission. He is concerned that if it is, then that would negate all of this. He
asked County Attorney Bruce Barker if in his opinion it holds any legal consequence for the Planning
Commission. Mr.Barker replied that with approval from the Planning Commission, he would like the board to
first hear about that from the opponent's attorney to hear what the argument is and also the applicant's legal
representative. He added that he believes that it would be wise to hear from both of the legal representatives
first on the issue and then he will be happy to talk about it.
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Commissioner Branham expressed that this issue needs to be resolved before we proceed with the hearing.
Commissioner Ochsner commented that the burden of proof is on the applicant and they have brought experts
to show that is not a binding statement or that it is not a limitation and apparently by staff making a
recommendation for approval at this point, he believes that we need to go forward and hear the case from the
applicant based on that.
Mr. Gathman indicated that he passed out a memorandum with three proposed changes to the staff
recommendation to address the emergency access connection between Avery Drive and Lots 6 and 7.
Pat McNear, Scott Realty Company, 1212 8th Ave, representing George Bollinger. Mr. McNear stated that
Avery Acres PUD was approved in December of 1998 as a five(5)lot residential subdivision. At that time,the
maximum number of residential lots allowed in a minor subdivision was five.
The original application did not include a commitment from a domestic water supply to provide taps for the five
lots; therefore the remainder of the land owner's property was designated as Oulot A of which was
approximately 190 acres. This was to achieve allocation of 35 acres per lot to comply with the requirements of
the Colorado Division of Water Resources which will allow for a domestic well for each of the 35 acres and
would supply a domestic water tap for each of the five lots.
Since approval of Avery Acres PUD the County Code, in accordance with Section 27-2-140, has changed to
allow a maximum of nine(9)residential lots in a non-urban development. Since the original approval, North
Weld County Water District has installed a supply pipeline through the property and does supply service to all
of the existing lots as well as provided a commitment for additional service to accommodate the proposed lots.
Mr. McNear stated that the current owner,George Bollinger,desires to vacate 158 acres more or less from the
PUD to be returned to the Agricultural zoned district whereas,the 35 acre well spacing is no longer necessary.
In addition to the vacation of the land,the owner has requested to change the zone to allow two(2)additional
lots totaling 7.3 acres to Estate zoning. They are currently zoned Ag which is not A(Agricultural) but rather
PUD Agricultural within the confines of that subdivision. He added that the restriction for development on that
is that most of that lies within the 100 year floodplain.
In making these changes it would leave the remainder of 24.34 acres which would then become what is known
as Outlot A. Outlot A will remain zoned PUD Agricultural and be designated as non-buildable.
The owner has spent considerable money and time to clean up the overall condition of the property. He has
redrilled three irrigation wells, installed a lift station and pipeline to provide irrigation water to the Agricultural
portion.
Tom Grant, 821 9th St, #101, Greeley CO. He stated that he is the legal representative for the applicant and
added that what he believes empowers the Planning Commission to approve this case exists in a document
that is entitled"Declaration of Covenants, Conditions and Restrictions for Avery Acres PUD". He added that
this document is recorded in the Weld County Clerk and Recorder's Office.
Mr. Grant pointed out that there are some places in particular where he believes it shows an anticipation by
the Avery Acres PUD that there would be further development. On Page 6 of the Declarations, Section 7
Allocation of Interest, it states,"the percentage of liability for common expenses shall be determined by using
a formula in which the numerator is one and the denominator is the total number of lots subject to this
declaration or subject to this declaration by supplemental expansion or any additional number of lots approved
by the County of Weld." He continued to add that right in the PUD Declarations they talk about expansion of
lots to be approved by Weld County. There is also on Page 4, Section 18 Lot or Residential unit shall mean
and referred to any number of area of land shown as such upon the recorded final filing of plat in Weld
County, Colorado. He added that in this document of allowing for and anticipating future development of the
property.
Mr. Grant also pointed out on Page 33,Section 6 it talks about conflicts between documents and specifically it
says "In case of a conflict between this declaration and the articles and bylaws of the Association, this
declaration shall so control." He added that you have a declaration here that is filed that says within the
declaration that this is the controlling document and it allows for and anticipates expansion.
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Commissioner Branham commented that Mr.Grant referenced the declarations involving private parties and
added that his concern is with the resolution adopted by Weld County on December 16, 1998 that says that
there will be no residential structures. Commission Branham asked what Mr. Grant's response is to that
resolution that at the present time it would not be legally binding on us. Mr. Grant said that he understands
that that resolution specifically has been changed through other resolutions. His argument would be that there
has been a change in the ordinances that allows for this development.
The Chair asked the Department of Public Works to go over the driveway situation again. Don Dunker,
Department of Public Works,stated that the access for lots 6 and 7 will be off of County Road 72 and 43. He
added that there will be a cul-de-sac for those two lots and then there will be an emergency drive between the
existing cul-de-sac and the new cul-de-sac. Mr. Dunker said that this would allow for emergency vehicles to
get through.
Commissioner Berryman asked why the connection is necessary. Mr.Dunker commented that because of the
100 year storm the floodplain will run through there and they felt that the current driveway is probably going to
be under water and felt that there would be a better chance for emergency vehicles to get in there if they had
two choices to go in.
Commissioner Ehrlich asked if the floodplain was updated when the original PUD was put in. Mr. Dunker
replied that the last time the floodplain was updated was in 1982.
The Chair asked the Department of Health for their comments. Lauren Light, Department of Health,
commented that the site is served by North Weld County Water District and based on if they vacate the
southern portion of this, there will be about 40 acres that would contain the outlots and the seven lots total
which would be an overall density of about 5 acres and that does meet the requirements of putting septics in.
Therefore, they have no concerns with that.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
Jackie Johnson,Council representing the Homeowners of Avery Acres,822 7th St,Ste 760,Greeley,CO. Ms.
Johnson commented that one of the difficulties that she had conceptualizing this was that it intersects between
County zoning regulations and the creation of PUDs and State law concerning common interest communities
which is what the five lot owners in Avery Acres have. She added that the PUD is a zoning regulation and it
allows for the development of mixed uses in subdividing land. Part of the PUD approval and the resolution to
which Mr. Branham referred to,at the time required the land owner to submit a Declaration of Covenants to be
reviewed by the County Attorney. That declaration set forth a way of amending the common interest
community to increase the number of lots if the homeowners association wish to vacate or delete property
from the common interest community. The common interest community is made up of five lots and they own
Oultot B which is Avery Drive which is the common element in the common interest community. The PUD
encompasses a larger area including Outlot A; however Outlot A has no rights in the Homeowner's
Association. It is not a part of the described real estate in the declaration of covenants.
Ms. Johnson wanted to answer Mr. Branham's question of"can the County come in and change the rules
now." She said that the homeowners relied on the approval of the covenants and the process for amending
the PUD that was set out in that. The County approved the PUD with the understanding that this was the
process by which an amendment would occur. She added that what they are facing is an attempt to amend
the PUD and affect the common interest community in a way that wasn't anticipated in the governing
documents of the common interest community which governing documents are provided for through state law.
Ms. Johnson commented that Mr. Grant referred to a couple of provisions in the declaration which he
suggests it indicates that there was additional development contemplated. Even if that were true there was
additional development contemplated only under the rules of the covenants which say we aren't going to add
any property to this common interest community unless the land owners approve.
Ms.Johnson said that now what the County is proposing to do is to create a new common interest community
with its own set of covenants and road access and essentially counter what the whole idea of a PUD was in
the first place. She added that you are going to have the potential of different restrictive covenants in terms of
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lot size, what types of things can be built, and what rules and regulations govern.
Ms. Johnson said that you might be able to amend the PUD but doing so would be in violation of your
recognition at the time that you approved the PUD of the restrictions that were placed on how that PUD would
be enlarged. She stated that you cannot force the homeowners to accept these two lots into their
Homeowner's Association because that is all set out in the recorded covenants.
Commissioner Berryman asked Ms. Johnson to clarify for him if the applicant is governed by the covenants
that are set forth on Avery Acres. Ms. Johnson replied that the applicant does not have any standing at all in
the common interest community. She clarified by saying that the applicant cannot force himself upon them
and become part of them and because he cannot what the County is forced to do, if it approves this, is to
create a second entity of a two-lot common interest community that potentially has different rules than Avery
Acres.
Mr. Barker indicated that he would agree and disagree with Ms.Johnson. He agrees in the sense of the last
statement she made with respect to modify the PUD such that there would be two common interest
developments side by side. Mr. Barker said that he disagreed in the sense that the approval of the covenants
is not made a part of the PUD itself. He said the reason is that the review that we do on covenants typically is
only to make certain that it has all of the elements for covenants. We have seen covenants that come in that
say three things and it doesn't meet with the statutory requirements are for covenants in general. We do not
approve covenants and thereby make those binding upon the PUD itself. He believes for that reason it is
allowable for the applicant to go forward with the request to change the PUD. It really gets down to the issue
of fairness to the current land owners in Avery Acres and you have to weigh that as part of your decision. He
believes that is the real issue and is not a legal issue as to whether or not they can go forward, because in his
opinion they can.
Ms.Johnson commented that the County knew when it reviewed those covenants what the procedure was to
add property to the common interest community was. Mr. Barker disagreed and added that in the assertion
that approval of those covenants and that one provision then changes or puts a requirement on the PUD itself.
Ms. Johnson stated that she agrees with him, but does think that when these folks purchased the property
they knew that it would be changed by having an approval. Ms. Johnson pointed out that the Planning
Commission's job is to remember that this is part of a County planning process and she cannot imagine that it
is good planning to allow two contiguous homeowners associations with two possibly different requirements,
regulations, and standards.
Commissioner Grand commented that as he understands, the reason that Outlot A was the size that is was,
was to meet the acreage requirement to provide water for the five lots. Mr.Gathman replied that 80 acres was
required if there were going to be individual wells out there. At the time it was approved,it was not guaranteed
that they were going to get public water out there so that is why it was so big. He also added that at that time
there was a 15% open space requirement for any PUD.
Commissioner Holton asked how big the entire property is. Mr.Gathman replied that it currently is 193 acres.
Mr. Holton asked if the homeowners have control over the entire 193 acres. Mr.Gathman said that they don't
have control over Outlot A which is approximately 180 acres. He added that Outlot A is under separate
ownership and was never considered common open space.
Commissioner Spitzer asked what lots 6 and 7 are apart of. Mr.Gathman replied that they are where Outlot A
is right now under the proposed application.
Commissioner Spitzer clarified that none of this was covered by any of the covenants by the Homeowner's
Association. Mr. Gathman said that was correct.
Jeff Raisley, 3584 Avery Drive, (Lot 3)stated that when they purchased property out there they were told that
this was the way their final plat reads. He added that they thought they had protection with zoning with the
final plat and also with their road and now they are coming in and saying that they are going to go ahead and
use their road for emergency access which is still a use of their road. He further added that they all paid for
that road through their lot cost and have maintained that road through their HOA. Mr.Raisley commented that
they were never asked for nor did they give approval for that and doesn't understand how that can be taken
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away when it was something that was bought.
Kelly Raisley 3584 Avery Drive, (Lot 3) pointed out that within 5-8 miles of their house there are several
different subdivisions similar to theirs. She said that to the east of them is Owl Creek in which there are nine
lots and there are no houses built there and they have been vacant for years. She added that to the west of
them there is Faith Estates and there are three homes built out of the nine lots that are available and currently
one of those homes is for sale. A little farther west of that is Cattail Creek that has nine lots and three houses
are built there and currently one of those houses is for sale. Farther north of that there is an area called WB
Farms Estates which there are seven lots and one house on them. There is also Eagle View Ranch and
Eagle View Farms that are going in. She mentioned that they are considered non-urban and added that she is
concerned that the applicant and the Planning Department are trying to add density to their non-urban area.
Mrs. Raisley stated that she is curious to how that is a benefit to the County when there is clearly urban areas
around them.
Joel Hansen, 35884 Avery Drive, (Lot 2)stated that he agrees with everything that the Raisleys have stated.
In addition to that he added that they were presented with the fact that there was going to be five lots out there
and thought that their covenants were going to protect them from any other lots from being developed and the
fact that Outlot A was undevelopable. He believes that the majority of them were not given the second set of
covenants which have some different language in there which say they can develop that land. Mr. Hansen
expressed that they purchased that land to raise their families and assumed that what they were presented
with is what they bought into and that is what they want to keep.
Ken Harris, 35910 Avery Drive, (Lot 1), concurs with all the others and their points and added that when they
moved out there they were pretty hesitant to buy out there because they were worried that there would be
expansion. He said that they were given a copy of the final plat which had written on it that there would be no
residential development on Outlot A and added that is one of the conditions that they bought their house out
there for.
Commissioner Ehrlich mentioned that the homeowners have said that when they bought the property out there
it was on the plat that no other building would happen. He asked the homeowner if that was under another
owner because since then ownership of Outlot A and the 180 acres has changed. Mr. Harris replied that was
correct.
Karen Kapperman, 35768 Avery Drive,(Lot 5),agreed with all the neighbors statements. She added that what
has been unfortunate is that the new landowner has come in and has not made any effort to talk to the
homeowners in the area. She added that they were notified from his attorney and it has become a reactive
instead of a proactive situation and believes that it is unfavorable in that respect.
Ms.Johnson summarized in saying that when this property was made part of a PUD and when the covenants
were filed and then amended and refilled,the land owner did not reserve the right to add property from Outlot
A. Instead he set forth a procedure by which property could be added to the common interest community and
that procedure is set forth in those covenants. Ms. Johnson added that while technically the County can
amend the PUD to create these two lots, it cannot require the homeowners to include it in their common
interest community. She urged the Planning Commission to think about the wisdom of having two side-by-
side common interest communities with a potential for totally different development requirements and
standards. She echoed that perhaps it would be a wise suggestion for the new property owner to make some
effort to talk to these folks and see if there is some accommodation that might be reached where there might
be a more sensible long range result and still have protection of everyone's interests.
The Chair closed the public portion of the meeting.
Mr. Grant, 821 9th St, #101, Greeley CO, stated that there is an issue of fairness. He pointed out that there
needs to be a balance in terms of that fairness. The perception that he is getting is that the prior owner of this
property made some representations to the five lot owners and he can understand why that is upsetting to
them. He added that he doesn't think that on the legal issues they are really far apart. He indicated that he
agrees with what Ms.Johnson has stated and also what Mr. Barker has concluded which is that the common
interest community is made up of those five lots and is not made up of the proposed lots 6 and 7. He does
agree that it is not fair to stick lots 6 and 7 in that common ownership and thinks that the two lots would
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become their own common ownership. Mr.Grant added that the thing that is really important to understand is
that ownership has changed.
Commissioner Holton commented that the last testimony that they just heard mentioned that the applicant did
not try to contact the Homeowners and then he asked the applicant if they did try to work this out. He added
that he doesn't think the addition of two lots are a big problem, however it concerns him that the applicant did
not attempt to work with the homeowners prior to coming to the Planning Commission. Mr.Grant said that it
was his understanding that the homeowners were contacted and there were attempts to work with the
homeowners. He added that when he came on board he was asked to send a letter to the homeowners which
gave them a notification of what the plan was.
Commissioner Holton said that the impression he understands from the homeowner's attorney is that they are
willing to talk about it and it should have been prior to this. He added that he thinks that this could have been
solved a long time ago. Mr. Grant said that when he sent the letter to the homeowners the only response he
received was from Mr. Barry, who is from Ms. Johnson's firm, not mentioning anything about working
something out but rather indicating that here is the law and why your client cannot do that.
Commissioner Branham commented that the owner of Lot 3 mentioned that they have paid for and maintained
that road and now the applicant will be coming in to take over a part of it. He asked if they have had any
contact with the homeowners on that and what the applicant's position is on that. Mr. Grant said that the
applicant is being required to build their own road and so they will also be paying and maintaining their own
road. He added that it will also have a cul-de-sac at the end of it and the only time that there would be a
common use of the road from that entry would be for emergency purposes only.
Commissioner Ochsner asked that by proposing to change the Outlot to be unbuildable and Agricultural,what
is the guarantee to the homeowners in saying that they are not going to come back and change that in another
year or so. He further asked if there is a requirement that makes that land unbuildable. Mr.Grant replied that
it is in the floodplain and is unbuildable. Mr.Gathman stated that everything to the south would revert back to
Agricultural zoning.
Tom Holton moved to accept the changes to the Conditions of Approval and Development Standards
according to staff recommendations of which are 1.C (page 5) and 1.6.6 and 1.6.7 (page5), seconded by
Mark Lawley. Motion carried.
The Chair asked the applicant if they read through the amended Development Standards and Conditions of
Approval and if they are agreement with those. The applicant replied that they are in agreement.
Commissioner Holton commented that this is unusual in the fact that typically if they have outlots like this
somebody owns a house there and it is included in the property and asked Chris if this is something new. Mr.
Gathman replied that this is unique.
Commissioner Branham said that we heard a lot from the attorneys but one thing that all the attorneys brought
out is to look at the issue of fairness. The issue of fairness to the homeowner is that they purchased the
property under the condition that Outlot A would remain Agricultural and not Residential. The applicant's
attorney has pointed out that the prior owner made the representations, not the new owner. Mr. Branham
wondered if the new owner should have known about those prior representations when he purchased that
property. Mr. Branham commented that he still believes that there is an issue of legality and when it comes
down to the issue of fairness he is on the side of the homeowner.
Commissioner Ehrlich commented that this is a real dynamic application and this is what planning is all about.
He added that it is good to have the community here and representation of both sides. Mr. Ehrlich reiterated
Commissioner Holton's statement of having no communication between the applicant and the Homeowner's
Association. Mr. Ehrlich stated that in terms of the planning process he is not going to say that Weld County
does a bad job in planning for the future, it's the Weld County Code that gets changed and the Code was
changed on March 1, 2004 which trumped the 1998 PUD of 5 lots and 15% open space. You have
interpretations here and there but the County Code is what guides his opinion.
Commissioner Grand said that in terms of fairness this new property owner has some rights and the current
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homeowners have some negative exposure. He added that the County Attorney has said that in his opinion,
legally this case should proceed.
Commissioner Holton commented that this was handled very poorly and there should have been some
communication between the land owner and the current residents. He added that he doesn't believe that it is
fair to the current owner that everything to south be tied up when they could be doing something to it. Mr.
Holton said that this is unusual and is not fair to both sides but could have been handled a lot better.
Commissioner Berryman commented that we are charged to approve or deny this application based on the
County Code and from his understanding if it is denied what do we base it on regarding the code that staff has
outlined. He added that it is an interesting dilemma apart from the issue of fairness.
Robert Grand moved that Case AmPZ-516, be forwarded to the Board of County Commissioners along with
the amended Conditions of Approval and Development Standards with the Planning Commission's
recommendation of approval, Roy Spitzer seconded the motion.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. Nick
Berryman,yes; Paul Branham, no; Erich Ehrlich,yes with comment; Robert Grand,yes;Bill Hall,abstain;Mark
Lawley, yes with comment; Roy Spitzer, yes with comment; Tom Holton, yes; Doug Ochsner, yes. Motion
carried.
Commissioner Ehrlich cited County Code Section 27-2-140 and also commented that to the current Avery
Acres Association as well as the current landowner that communicating now is going to be the issue that is
going to be impactful because of what you heard today with the southern property.
Commissioner Branham commented that he has not heard enough evidence to overrule the former resolution.
Commissioner Lawley commented that he believes that it is consistent with the existing County Code.
Commissioner Spitzer commented that these are two additional lots to a five-lot subdivision and he thinks that
it is within the rights of the property in accordance to the current County Code. He is not thrilled by it because
of the fairness issues involved but he thinks that realistically it shouldn't result in any new regular traffic to the
existing homeowner's out there and it shouldn't result in a huge change in their lifestyle if it is done properly.
The Chair reminded the public that this was a recommendation by the Planning Commission and it will be
heard before the Board of County Commissioners and that is where the decision will be made and urged them
to attend that meeting,
The Chair called a recess at 3:08 p.m.
The Chair called the meeting back to order at 3:16 p.m.
CASE NUMBER: USR-1642
APPLICANT: Luceme Commons, LLC do Ag Professionals, LLC
PLANNER: Hannah Hippely
LEGAL DESCRIPTION: Parts of the SW4 of Section 17,T6N,R65W of the 6th P.M.,Weld County,Colorado.
REQUEST: A Site Specific Development Plan and a Special Review Permit for an Oil and Gas
Support and Service facility(fracking company),Agricultural Service Establishment
(commodity storage and drying),Use allowed in the Commercial or Industrial Zone
District(recycling business)in the A(Agricultural)Zone District.
LOCATION: North of and adjacent to State Highway 392 and east of and adjacent to CR 39.
The Chair pointed out that this case was continued from the February 5, 2008 meeting and Commissioner
Branham was not there to hear the case so he will not be able to vote on this case.
Hannah Hippely, Department of Planning Services, highlighted some points to the Commissioners again. The
site location is at the corner of County Road 39 and State Highway 392. Currently the site has three existing
structures on it that the applicant is intending to repurpose for Commercial and Industrial uses.
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She reminded the board that the issue that was left outstanding and the reason that staff had recommended
denial of this application was that the septic issues were not adequately addressed and did not meet County
Code, nor were the storm water management facilities planned for. Ms. Hippely stated that they had
requested the applicant supply the Department of Public Works and the Health Department with some
additional information and she commented that she believes that the applicant has done so.
The Chair asked Mr. Dunker with the Department of Public Works if he has received a drainage report. Don
Dunker, Department of Public Works, commented that he received a pdf file, not a stamped drainage report,
and he did review the preliminary report from the pdf file. He stated that Public Works does not agree with all
the numbers within the report; however he believes that it can be done on site. He added that they need to
move outside of the future right-of-way of CDOT, but believes that they can make the retention in this case.
Commissioner Holton asked Mr. Dunker if he is satisfied with their efforts. Mr. Dunker replied that he is.
Lauren Light, Department Public Health, stated that they received an initial perk test and the layout of where
they will put the septics in. She commented that they will need to do engineered systems. Ms. Light
commented that based on the information that the applicant provided to them it looks like it would work.
Commissioner Lawley asked if there are any changes to the Conditions of Approval and Development
Standards. Ms. Hippely stated that they covered everything they need, however she is still concerned about
fitting all the things that need to go on this site. She added that once the applicant has determined where
these septic systems are best suited to go, she would like to see them located on the plat.
Ms. Hippely suggested to add to the Conditions of Approval on Page 6, letter O(the plat shall be amended to
delineate the following)#10 "the location of the septic systems shall be identified on the plat." Ms. Hippely
stated that the intent is not to limit where they place them it is just to have on here that once they have placed
them somewhere to let them know where that is.
Mark Lawley moved to accept the addition of O.10"The location of the septic systems shall be identified on
the plat" to the Conditions of Approval, seconded by Erich Ehrlich.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. Nick
Berryman, yes; Paul Branham, yes; Erich Ehrlich, yes; Robert Grand, yes; Bill Hall, no with comment; Mark
Lawley, yes; Roy Spitzer, yes;Tom Holton, yes; Doug Ochsner, yes. Motion carried.
Commissioner Hall commented that the reason he voted no is because one of the things that he sees as a
long term problem would be the fact that they are not talking about a septic envelope,they are talking about a
system. So then they will need to change it if the system fails and it won't be accurate. He suggested a septic
envelope rather than the actual location of the septic systems.
Commissioner Ehrlich mentioned that CDOT and the right of way with relationship to the septic systems was
discussed at the February 5'°meeting and asked Mr. Dunker if they are still going to be okay. Mr. Dunker said
that they will need to move it outside of the future CDOT right-of-way of 75 feet from the centerline.
Dusty McCormick,AgProfessionals,4350 Highway 66, Longmont CO. He stated that upon approval from the
Board of County Commissioners hearing, his client will execute an agreement with Cache la Poudre on
reserving their new enlarged right-of-way.
He commented that CDOT's original comments were 75 feet from centerline and then were readjusted to 45
feet from the edge of the existing pavement, which in this case is approximately 15 feet. Mr. McCormick
stated that he would really like to see the language stay the same. Mr. Dunker stated that he needs to work
that out with CDOT.
Mr. McCormick stated that he doesn't feel that septic envelopes are necessary to put on the plat, however,
they would be happy to do that as it is very minor.
Mr. McCormick commented that he has an objection to one of the Conditions of Approval which is on Page 6,
O.6 which states that the total number of on-site parking spaces for this facility shall be seventy-one (71)
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spaces. Mr. McCormick stated that seventy-one (71) spaces for thirty-one (31) employees is somewhat
excessive. He proposed to change that to allow for 10 additional visitors which are not anticipate nor planned
for bringing the total to forty-one(41) parking spaces which he believes to be adequate for this facility.
Ms. Hippely said that the parking is determined based on the use and square footage of the building. She
added that we could lower the number of spaces if we could add a development standard limiting the number
of employees on-site to thirty-one (31). Ms. Hippely stated that we could base it on how many people are
going to use the site or we can base it on the square footage and use of the building.
Commissioner Ochsner asked Mr. McCormick if they think they will ever have more than thirty-on (31)
employees. Mr. McCormick replied that it is difficult to say and added that they allowed for a 15% growth
above what the tenants said they would have. Mr. McCormick stated that he would like to see the parking
determined on the use.
Commissioner Spitzer asked Mr. McCormick if he would agree to a limited number of employees on-site. Mr.
McCormick replied that they would agree and would ask for forty-one(41) parking spaces.
Ms. Hippely recommended to amend O.6 to read forty-one(41)spaces and strike the sentence that reads
"The facility shall adhere to the number of on-site parking spaces indicated in Appendix 23-B of the Weld
County Code", because we are not complying with that.
Ms. Hippely stated that we can add development standard #5 and renumber accordingly that reads "The
number of employees on-site shall be limited to thirty-one (31).
Tom Holton moved to accept staffs recommendation to add Development Standard #5 and amending
Condition of Approval O.6, seconded by Mark Lawley. Motion carried.
The Chair asked the applicant if they read through the amended Development Standards and Conditions of
Approval and if they are agreement with those. The applicant replied that they are in agreement.
Roy Spitzer moved that Case USR-1642,be forwarded to the Board of County Commissioners along with the
amended Conditions of Approval and Development Standards with the Planning Commission's
recommendation of approval as the following Sections: 23-2-220.A.1, 23-2-220.A.7,23-2-220.A.7 have been
met, Robert Grand seconded the motion.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. Nick
Berryman,yes;Paul Branham,abstain; Erich Ehrlich,yes; Robert Grand,yes;Bill Hall,yes;Mark Lawley,yes;
Roy Spitzer, yes; Tom Holton, yes with comment; Doug Ochsner, yes. Motion carried unanimously.
Commissioner Holton sited Section 23-2-240 and Section 23-2-250.C.
Doug Ochsner needed to excuse himself from the meeting at 3:48 p.m. due to a prior commitment. Vice
Chair Tom Holton took over the meeting.
CASE NUMBER: USR-1644
APPLICANT: Jack&Vicki Pierson
PLANNER: Roger Caruso
LEGAL DESCRIPTION: Lot C of RE-3345; Part of the NE4 of Section 34,T4N,R66W of the 6th P.M.,Weld
County, Colorado.
REQUEST: A Site Specific Development Plan and Special Use Permit for a KENNEL (to
accommodate 120 dogs)and one(1)single-family dwelling unit per lot other than
those permitted under Section 23-2-30.A in the A(Agricultural)Zone District.
LOCATION: South of and adjacent to CR 40 and 1/4 mile west of CR 33.
Roger Caruso, Department of Planning Services, stated that they would like the request to be changed to
a Site Specific Development Plan and a Special Review Permit for a kennel (to accommodate 120 dogs)
and one(1)single-family dwelling unit per lot other than those permitted under Section 23-2-30.A in the A
(Agricultural)zoned district.
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The sign announcing the Planning Commission hearing was posted January 7, 2008 by Planning Staff.
The site is located south of and adjacent to County Road 40 and approximately IA mile west of County
Road 33.
The surrounding property to the north, south, east and west are agriculturally used with single-family
residences. There are seventeen (17) property owners within 500 feet of the property in questions and the
closest home is roughly 300 feet to the northeast. The Department of Planning Services has received a
single letter from a surrounding property owner with concerns over noise.
The property is currently in violation due to the necessary Use by Special Review permit not being
supplied. The violation has not yet been presented to the Board of County Commissioners through a
Violation hearing; approval of this Use by Special Review will remediate the violation.
The subject property lies within the three mile referral area of the Town of Gilcrest; the Town of Gilcrest
responded that the application did not cause any conflicts with their interests.
Fourteen referral agencies reviewed this case, twelve responded favorably or included conditions that
have been addressed through development standards and conditions of approval.
The Department of Planning Services would like to add a development standard #9 and renumber
according to state that the mobile home located on-site shall not be used as a rental.
The Department of Planning Services is recommending approval of this application along with the conditions
of approval and development standards.
Lauren Light, Department of Public Health, commented that there was no information on what facilities the
employees or visitors would use,therefore they have included a condition that states that if they use the house
then her department will need an engineered study on that septic system. She added that if they put in a
septic system for the dog kennel then that will need to have an engineered system also.
Ms. Light also said that there was no information in the waste handling plan. She indicated that they didn't
explain if when they clean out the kennel if it is going to be dry cleaning without using any water or washing the
kennels out.
As far as the noise it doesn't look like that will be an issue. She stated that they will need to apply for the pet
animal care license through the state.
Dave Snyder, Department of Public Works, said that the roads are all gravel and they have very minimal
impact on the roads as people are coming to the site by appointment only. He add that there should not be
any dust abatement issues, however if the board desires we can add a standard to read "If complaints arise
dust abatement shall be applied to 150 feet in front of the residences."
Commissioner Lawley expressed his opinion of adding the standard with regard to dust abatement.
Vicki Pierson, 15544 CR 40, stated that they are applying for a kennel and added that they are currently
licensed by the State and have been for the last 7 years.
Mrs. Pierson stated that on Development Standard#5 it says that dogs shall be kept indoors from 7 PM to 7
AM. She said that she would like to remove that standard as the dogs have free access to their
indoor/outdoor runs now and felt that is pretty cruel to keep them locked up for 12 hours. She added that the
noise would not be an issue with the dogs being debarked.
Robert Grand moved to remove Development Standard #5 and renumber accordingly, seconded by Roy
Spitzer. Motion carried.
Paul Branham moved to add Development Standard#9 and renumber accordingly to state"The mobile home
located on-site shall not be used as a rental.", seconded by Mark Lawley. Motion carried.
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Mark Lawley moved to add Development Standard#22 and renumber accordingly to state"If complaints arise
dust abatement shall be applied to 150 feet in front of the residences.",seconded by Bill Hall. Motion carried.
Paul Branham moved to add a Condition 1.B.5 prior to recording the plat to read"Identify all access points on
the plat to delineate with Residential or Agricultural."seconded by Mark Lawley.
Commissioner Berryman asked the applicant as a matter of curiosity of what the concept is of debarking a
dog. Mrs. Pierson said that the veterinarian takes a very small, little "V" out of their vocal chord and it just
lowers the volume of their noise that they make. She added that they still bark, but it cuts approximately 80-
90% of the noise and it doesn't hurt them in anyway.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
Grant Greiman, 15301 CR 40,suggested that USR-1644 not be transferrable if they sell the property as that is
one of his main concerns. He commented that if the property was sold the neighbors would not know what
they are getting in return. He added that most of the neighbors agree with how they treat their dogs and don't
have a lot of complaints due to noise.
Mr. Caruso stated that Mr. Grieman's request is included in Development Standard#7 as it states that upon
sale of the property the kennel shall cease to exist.
The Chair asked the applicant if they read through the amended Development Standards and Conditions of
Approval and if they are agreement with those. The applicant replied that they are in agreement.
Robert Grand moved that Case USR-1644, be forwarded to the Board of County Commissioners along with
the amended Conditions of Approval and Development Standards with the Planning Commission's
recommendation of approval, Bill Hall seconded the motion.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. Nick
Berryman,yes; Paul Branham,yes; Erich Ehrlich,yes; Robert Grand,yes;Bill Hall,yes; Mark Lawley,yes; Roy
Spitzer, yes; Tom Holton, yes; Doug Ochsner, absent. Motion carried unanimously.
Meeting adjourned at 4:05 p.m.
Respectfully submitted,
`�iru it/1MM
Kristine Ranslem
Secretary
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